Sweetman v Shepherd & Ors

Permission to appeal should be refused where the proposed grounds disclose no real prospect that the first-instance decision will be reversed. A delay-based decision to strike out proceedings for want of a fair trial involves an evaluative assessment of the evidence and the practical consequences of delay. Documentary evidence, or the possibility that some issues could be decided largely on documents, does not necessarily establish that a fair trial remains possible. The court may consider the increasing difficulty of adducing oral evidence, the scope of the factual inquiry, the parties’ conduct and the further timetable required for trial.

Mr Sweetman sought renewed permission to appeal in three actions, described as the Shepherds Action, the Nathans Action and the Lawyers Action. Irwin J, after a detailed hearing, struck out the actions because delay meant that a fair trial could no longer be held. Permission had previously been refused on the papers. The renewed application principally challenged the judge’s approach to delay and the extent of the factual inquiry required. The central issue was whether those arguments disclosed a real prospect that the decision would be reversed.

1. Application refused. The grounds did not create a real prospect that the court would overrule Irwin J and allow the actions to proceed.
2. Irwin J had undertaken a careful and comprehensive assessment of the evidence and reasoning. His findings included a repeated pattern of delay and conduct which he regarded as consciously manipulating the litigation process.
3. The availability of documentary evidence did not demonstrate that a fair trial remained possible. Oral evidence inevitably becomes more difficult to obtain and assess as time passes. The scope of the factual inquiry, including the potential need to contact numerous witnesses, and the prospective timetable were relevant to the conclusion that a fair trial was strongly likely to be impossible.
4. The possibility that the Lawyers Action might be determined substantially on documents, and that admissions might narrow the factual inquiry, did not establish an error of principle in the overall assessment of delay.
5. Pill LJ agreed with Hughes LJ’s reasons that the judge’s conclusions upon delay betrayed no error of principle. Maurice Kay LJ agreed and added nothing. The order was that the application be refused.

• Court of Appeal (Civil Division): renewed application for permission to appeal refused.
• High Court of Justice, Queen’s Bench Division: Irwin J struck out the three actions after finding that delay made a fair trial strongly likely to be impossible.
• Court of Appeal (on the papers): Hughes LJ refused permission to appeal on 5 September 2007.