Calland v Financial Services Authority (FSA)

Permission for a second appeal may be granted where the proposed appeal raises important questions of principle or practice and is sufficiently arguable. Where a first-instance judge refuses to strike out a claim because serious factual disputes require oral evidence, an appellate court should consider whether there are grounds to interfere with that discretionary decision. A de novo review of the facts, or a mini-trial at the interlocutory stage, may be inappropriate. The judgment also identifies the potential importance of clarifying harassment claims involving professional regulators and the scope of a statutory-authority defence.

The claimant brought a harassment claim arising from the conduct of the Financial Services Authority. Deputy District Judge Ray refused the FSA’s interlocutory application to strike out the claim, holding that serious factual disputes required a full hearing. On appeal, Recorder Steynor reviewed the issues and struck out the claim. Permission for a second appeal had been refused on paper. The Court of Appeal considered whether the proposed appeal raised important questions of principle and practice, including the proper appellate approach to the discretionary refusal to strike out and whether the Recorder had effectively conducted a mini-trial.

1. Permission granted. Despite the earlier refusal of permission on paper, the Court of Appeal granted permission to bring a second appeal. The proposed appeal raised important questions of principle and practice and was at least arguable.
2. Approach to an appeal against a discretionary strike-out decision. It was arguable that, after Deputy District Judge Ray had refused strike-out because the issues required determination at trial, Recorder Steynor should have considered whether there were grounds to interfere with that exercise of discretion. It was also arguable that he should not have conducted a de novo review of the facts or made additional factual findings through what appeared to be a mini-trial.
3. Live factual disputes. The Deputy District Judge had been entitled to conclude that serious factual issues could properly be resolved only by hearing oral evidence. The Court of Appeal indicated that the claim was better than merely arguable and that the factual issues should proceed to trial. The Recorder had accepted that harassment by the regulator was possible, making the strike-out issue suitable for further appellate consideration.
4. Wider issues. The law concerning harassment by professional regulators was described as embryonic. The proposed appeal also raised an arguable question about the availability and scope of the statutory-authority defence, including whether it could operate as a complete bar to a strike-out application.

• Court of Appeal (Civil Division): Granted permission for a second appeal, notwithstanding the previous refusal of permission on paper.
• Bow County Court: Recorder Steynor allowed the appeal from the interlocutory decision and struck out the harassment claim.
• Exeter County Court: Deputy District Judge Ray dismissed the FSA’s application to strike out the claim, directing that the serious factual disputes should be resolved at a full hearing.