Merelie v Newcastle Primary Care Trust

Permission to appeal requires a real prospect of success or another compelling reason for the appeal to be heard. An appellate court will not re-hear factual disputes or substitute its assessment of witness credibility merely because a party identifies evidence pointing the other way. A trial judge may make an overall assessment of a witness and the parties’ conduct where it is grounded in the evidence. A general conclusion may dispose of multiple harassment allegations without separate findings on every item. A prior refusal to strike out a defamation claim leaves its merits for trial, where qualified privilege may defeat the claim.

The applicant, a dentist employed in the Community Dental Service, brought two actions arising from her employment and dismissal. The first alleged breach of the contractual duty of trust and confidence and negligence against her employer. The second, after interlocutory orders including the striking out of parts of the claim in [2004] EWCH QB 2554, concerned harassment, defamation and malicious falsehood against the Trust and individuals.

Underhill J tried the actions together and dismissed both on 20 June 2006, principally on factual findings concerning workplace relationships, the alleged harassment and the defamation claim. He refused permission to appeal. The applicant sought permission from the Court of Appeal, alleging errors of law, perverse findings, inadequate reasons and procedural irregularity. The central issue was whether the proposed appeal had a real prospect of success or another compelling reason for a hearing.

1. Permission refused. Under the Civil Procedure Rules 1998, r 52.3(1)(6), the applicant had to show a real prospect of success or another compelling reason for the appeal to be heard. Neither limb was established.
2. The trial judge was the fact-finding tribunal. He had heard extensive evidence and had the opportunity to assess the credibility and reliability of the witnesses. The Court of Appeal could not re-hear and re-determine the factual issues merely because the applicant challenged the weight given to evidence, the assessment of probabilities or the findings of credibility.
3. The judge was entitled to form an overall assessment of the applicant’s personality and reliability as a witness at an early stage of his judgment. That assessment was rooted in the evidence and did not demonstrate circular reasoning or pre-judgment. Judges may reach conclusions on a wide range of subjects, including scientific and technical issues.
4. In relation to the claim under section 1 of the Protection from Harassment Act 1997, the judge was entitled to conclude that the conduct was neither unreasonable nor oppressive. It was therefore unnecessary to resolve whether the conduct constituted the required course of conduct. His general conclusion could cover all the alleged incidents without separate findings on every item.
5. The findings defeating the alleged breach of the contractual duty of trust and confidence also entitled the judge to conclude that the negligence claim failed.
6. The refusal to strike out the defamation claim at an interlocutory stage did not determine its merits. After considering the evidence, the judge was entitled to reject the pleaded defamatory meaning and to find that qualified privilege defeated the claim. The absence of cited authorities did not itself establish an error of law.
7. No real prospect of reversal or arguable error of law was shown. The application for permission to appeal was refused.

1. Court of Appeal (Civil Division): On 2 March 2007, Lord Justice Pill refused permission to appeal.
2. High Court of Justice, Queen’s Bench Division: Underhill J tried the two actions together and dismissed them on 20 June 2006. He refused permission to appeal.
3. High Court interlocutory stage: Eady J struck out parts of the second action in a judgment dated 11 November 2004, reported at [2004] EWCH QB 2554. Permission to appeal was refused by Eady J and by Buxton LJ.