Crossland v University of Glamorgan

Permission for a second appeal under CPR 52.13 is available only in exceptional cases. The applicant must establish either an important point of principle or practice which has not yet been established, or some other truly exceptional compelling reason. A serious procedural irregularity may qualify only where it rendered the first appeal unfair. Mere disagreement with the lower court’s assessment of the evidence is not such an irregularity. Very high prospects of success may be relevant, but do not of themselves entitle an applicant to permission.

The claimant brought defamation proceedings against the University concerning three emails and three reports by its employees. Qualified privilege attached to every publication. He alleged that privilege was defeated by the malice of Ms Daunton, although she had not herself published any of the material.

Master Leslie struck out the claim and entered summary judgment for the University, holding that there was no evidence that Ms Daunton had participated in the publications. Hickinbottom J gave permission to appeal only on that issue. Nicol J refused permission to add further grounds and dismissed the appeal: [2011] EWHC 2809 (QB).

The claimant renewed his application for permission to bring a second appeal. The central issues were whether the case met CPR 52.13(2), and whether the proposed appeal concerning participation in publication had the requisite prospects.

Permission to bring a second appeal was refused. Munby LJ gave the judgment, with which Sir David Keene and Mummery LJ agreed.

1. This was plainly a second appeal. The claimant sought to overturn the strike-out of his claim and obtain its reinstatement. Nicol J’s primary basis for dismissing the first appeal was the same participation issue as that decided by Master Leslie, notwithstanding that Nicol J also considered malice.

2. By section 54(4) of the Access to Justice Act 1999, the claimant could not revive grounds on which Hickinbottom J and Nicol J had refused permission to appeal. The Court therefore lacked jurisdiction to consider the alleged ambush before the Master and the associated allegations of improper purpose.

3. CPR 52.13(2) was not satisfied. Applying Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60, the Court held that neither limb permits an ordinary reassessment of evidence. No important and unestablished point of principle arose. The claimant’s reliance on Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] AC 1 showed that the relevant principle was already established. The proceedings were straightforward, notwithstanding the volume of the claimant’s submissions.

4. There was no other compelling reason. Allegations of prejudice and bias against Nicol J were groundless. Complaints that he reached the wrong view, considered immaterial matters, or omitted relevant matters did not amount to a procedural irregularity capable of rendering the first appeal unfair.

5. The proposed appeal also had no real prospect of success. A non-publisher could only be liable through participation in publication of the kind described in B v N and L [2002] EWHC 1692 (QB). Nicol J had been entitled to conclude that Ms Daunton had not participated in any of the six publications. Her alleged malice could therefore not defeat the qualified privilege attaching to them.

• Court of Appeal (Civil Division): renewed application for permission to bring a second appeal refused: [2012] EWCA Civ 1709.
• High Court, Queen’s Bench Division: Nicol J refused permission to enlarge the grounds of appeal and dismissed the appeal from Master Leslie: [2011] EWHC 2809 (QB).
• Master Leslie: struck out the defamation claim and entered summary judgment for the University on the basis that there was no evidence of Ms Daunton’s participation in the publications.