WXY v Gewanter & Anor

Permission to appeal should be refused where none of the proposed grounds has a real prospect of success. A party’s non-attendance will not justify an appeal where the trial court found no good reason for the absence, took measures to keep the party informed, and considered the legal issues raised in the defence. An argument concerning publication motive will also fail where that issue was fully considered in the judgment and on the related application to set aside the judgment.

The third defendant, Mark Burby, sought permission to appeal the judgment of 6 March 2012. He also applied to set that judgment aside because he had not attended the trial. That application had been dismissed because he failed to establish a good reason for his non-attendance. The proposed appeal grounds concerned fair-trial rights under Article 6(1), the overriding objective, the approach to his absence, and his motive for publication. Ground D was not pursued.

1. Permission refused. None of the proposed grounds of appeal had any prospect of success.
2. The application to set aside the judgment based on inability to attend had already been dismissed. The third defendant had failed to establish a good reason for not attending the trial. Measures had nevertheless been put in place, as recorded in paragraph 11 of the earlier judgment, to keep him informed of the progress of the hearing. The legal issues raised in his defence had also been considered. An appeal based on the alleged breach of Article 6(1), the overriding objective, or the treatment of his non-attendance therefore had no prospect of success.
3. The third defendant’s motive for publication had been fully considered at paragraphs 97 to 102 of the judgment of 6 March 2012. His statement in a letter dated 15 July 2011 had also been considered on his application under CPR 39.3(3) to set aside the judgment. The proposed appeal on motive likewise had no prospect of success.
4. The proposed Ground D was not pursued.

The third defendant sought permission to appeal the judgment dated 6 March 2012. His separate application to set that judgment aside had been dismissed. The High Court refused permission to appeal because none of the proposed grounds had any prospect of success.