Crossland v University of Glamorgan

On a second appeal, a party must show both a real prospect of success and either an important point of principle or practice or another compelling reason. A party cannot appeal against a High Court judge’s refusal to permit additional grounds of appeal, but may seek permission against the order dismissing the appeal. A permission application is not the occasion for fully determining numerous disputed issues. Where premature striking out may have deprived a claimant of a trial, that possibility may provide a compelling reason for consideration by a full court. Enforcement of costs orders is not automatically stayed pending appeal; a stay requires properly evidenced justification.

The appellant brought a defamation claim concerning six publications connected with his enrolment on, and complaints about, a university course. The University relied on qualified privilege, while the appellant alleged that the privilege was defeated by malice attributable to a university employee who had not herself published the statements.

A Master struck out the claim and entered summary judgment for the University. Hickinbottom J permitted an appeal on one ground. Nicol J refused permission on further grounds and dismissed the appeal in a reserved judgment reported at [2011] EWHC 2809 (QB). The appellant then renewed his application for permission to appeal to the Court of Appeal and sought a stay of the costs orders.

1. Permission to appeal. No appeal lay against Nicol J’s refusal to permit the appellant to pursue additional grounds before him. It was, however, open in principle to seek permission to appeal against the order dismissing the appeal. Because that would be a second appeal, the appellant had to show not only a real prospect of success but also an important point of principle or practice, or some other compelling reason, under CPR Part 52.13 (para [2]).
2. The material before the court raised numerous issues concerning the strike-out decision, the alleged participation of the employee in the publications and malice. The judge was not sufficiently confident that those issues could fairly be resolved on a permission application. A permission hearing was not the occasion for a full and considered determination of such issues. The appellant probably had some real points concerning whether the claim had been struck out prematurely, although their strength and the satisfaction of the second-appeal criteria remained uncertain. If he had wrongly been deprived of a trial, that could amount to a compelling reason for an appeal. The application was therefore adjourned to a full court on notice to the University.
3. If permission were granted, the appeal was to follow immediately. The court was to comprise three judges, one of whom could be a High Court judge, and was to include a Lord or Lady Justice with experience in defamation law. One day was allowed for the hearing.
4. Stay of execution. Pursuing an appeal did not itself stay enforcement of the orders below. The successful party was ordinarily entitled to recover the fruits of the judgment pending appeal, subject to repayment if the appeal succeeded. The appellant had not expressly established that he could not pay, supplied no details of his financial position and asserted only that enforcement might prevent pursuit of the appeal. That was insufficient to justify a stay. No order was made at that stage, but the appellant was given liberty to apply to a single Lord Justice, supported by a witness statement and served on the University. The University could respond within 14 days, after which the application could be determined on paper or at a hearing.

• Court of Appeal (Civil Division): On the renewed application, permission was not determined. The application was adjourned to a full court on notice to the University. No order was presently made on the stay application.
• High Court, Queen’s Bench Division: Nicol J refused permission on further grounds and dismissed the appeal from the Master’s order: [2011] EWHC 2809 (QB).
• High Court: Hickinbottom J granted permission to appeal on a single ground. Master Leslie had struck out the claim and entered summary judgment for the University.