Doctor A & Ors v Ward & Anor

Permission to appeal may be granted only where the proposed appeal has a real prospect of success or there is some other compelling reason for it to be heard. A complaint that the first-instance judge gave insufficient or excessive weight to particular factors will not normally establish a real prospect of success unless it identifies an error of law, reliance on an irrelevant matter, failure to consider a relevant matter, or a plainly wrong evaluative conclusion. Where permission is refused, a short extension of an existing stay may still be appropriate to preserve any renewed application to the Court of Appeal from becoming nugatory.

The judgment concerned an application by two medical experts for permission to appeal against an earlier decision concerning anonymity, publication and contra mundum injunctive relief. The application challenged the weight given to legitimate expectation, evidence and fears of harassment, the experts’ Article 8 rights, the respondents’ Article 10 rights, and the respondents’ motivation for publication. Permission was sought under both limbs of CPR 52.3(6). The court also considered whether the existing stay should continue pending any renewed application to the Court of Appeal.

The earlier judgment was [2010] EWHC 16 (Fam).

1. Permission refused. The court refused permission to appeal under CPR 52.3(6)(a). The proposed grounds did not allege an error of law, reliance on an irrelevant fact, failure to consider a relevant fact, or that the court’s parallel analysis and ultimate balancing exercise were plainly wrong. They principally challenged the weight assigned to competing factors. The court was not persuaded that the appeal had a real prospect of success.
2. The court also refused to grant permission under CPR 52.3(6)(b). Although some submissions had force and raised matters of principle, the question whether there was another compelling reason for an appeal was, in these circumstances, better left to the Court of Appeal rather than determined by the first-instance judge.
3. Stay extended in limited form. Despite refusing permission, the court recognised that disclosure of the experts’ identities could render any renewed application substantially nugatory. The stay was therefore extended briefly, but only in relation to the first and second claimants. It did not extend to the treating clinicians or social workers because they had made no application for permission.
4. The application was refused with no order as to costs. The respondents were prohibited, while the stay remained in force, from publishing or placing in the public domain the names of the first and second claimants, and were required to act as if the contra mundum injunction remained in force in relation to them.

1. High Court (Family Division): The earlier substantive judgment was given on 8 January 2010 in [2010] EWHC 16 (Fam).
2. High Court (Family Division): On 9 February 2010, permission to appeal was refused. The stay was extended temporarily in relation to the two medical experts to permit consideration of a renewed application to the Court of Appeal.