Hutcheson v Popdog Ltd & Anor

An appellate court will only exceptionally permit an appeal that is academic between the parties. It must be satisfied that the appeal raises a point of general importance, that the respondent agrees or is fully protected against costs and other prejudice, and that both sides will be properly represented.

An uncertain and disproportionate prospect of varying a costs order will not ordinarily justify permission. Refusal of permission on academic grounds does not endorse substantive issues which would not need to be decided on the proposed appeal.

The claimant had obtained an interim non-disclosure injunction against Popdog Ltd. Following a settlement which left the injunction in place, News Group Newspapers Ltd applied to set it aside. Eady J held that the injunction had in practice ceased to be interim and did not bind News Group as a third party.

The claimant then brought separate proceedings against News Group. Eady J refused interim relief, and this court dismissed the resulting appeal in Hutcheson v Newspapers Limited [2011] EWCA Civ 808. The claimant nevertheless sought permission to appeal Eady J’s earlier decision concerning the original injunction, contending that the appeal raised important issues and could affect the costs order.

The central question was whether permission should be granted for an appeal which was otherwise academic between the parties.

1. Permission to appeal was refused. The proposed appeal was academic because the separate decision, upheld on appeal, already permitted News Group to publish the information. An appellate court may exceptionally hear an academic appeal, but ordinarily only where it raises a point of general importance, the respondent consents or is fully protected from costs and other prejudice, and the competing arguments will be fully ventilated.

2. Although the proposed appeal might raise issues of some general importance, those issues were not of outstanding public importance and might not have required decision. News Group opposed the appeal and would remain out of pocket even if there were no order for costs. The second and third requirements were respectively not satisfied and likely to be satisfied; the failure of the costs-and-prejudice requirement was decisive in the circumstances.

3. The possible effect on the costs order did not make permission proportionate. It was uncertain whether the costs order resulted from the first decision rather than the later decision refusing protection. It was also probable that the costs order would stand even if Eady J’s reasoning on the first application were wrong, because News Group had ultimately succeeded on publication.

4. The court did not determine the substantive injunction issues. It warned that the refusal of permission should not be read as approval either of the view that settlement rendered an undischarged interim injunction ineffective against third parties, or of Jockey Club v Buffham [2003] QB 462 concerning the application of the Spycatcher principle to final injunctions. It also stressed adherence to the Practice Guidance on interim non-disclosure orders.

• Court of Appeal (Civil Division): Permission to appeal against Eady J’s first decision was refused in this judgment.

• Court of Appeal (Civil Division): The claimant’s appeal against Eady J’s second decision was dismissed in Hutcheson v Newspapers Limited [2011] EWCA Civ 808 .

• High Court, Queen’s Bench Division: Eady J held on 17 November 2010 that the original interim injunction had, in practice, ceased to bind News Group as a third party.

• High Court, Queen’s Bench Division: Eady J refused interim relief against News Group on 1 December 2010 and ordered the claimant to pay News Group’s costs.