Monroe v Hopkins (Rev 1)

An application for permission to appeal to the lower court must ordinarily be made at the hearing when the decision is given, or during an adjournment granted then for that purpose. Once the order has been sealed, the lower court is functus officio and lacks jurisdiction to entertain a later application. The intending appellant may apply directly to the appeal court. If the lower court nevertheless expresses a view on the proposed grounds, permission should be refused where there is no real prospect of success and no other compelling reason for an appeal. A stay of payment or costs assessment requires sufficient evidence of a risk that the money may be lost.

The defendant applied without a hearing for permission to appeal against the claimant’s libel judgment and associated orders, including damages and an interim payment on account of costs. Judgment had been handed down on 10 March 2017, the formal order was sealed on 21 March, and the defendant sought permission from the trial judge on 23 March. The issues were whether the lower court retained jurisdiction under CPR 52.3 and Practice Direction 52A, whether the proposed grounds met the permission threshold, and whether payment and costs assessment should be stayed.

1. Jurisdiction. The application for permission to appeal was made after judgment had been handed down, after the hand-down hearing had concluded without an application or request for an adjournment, and after the order had been sealed. CPR 52.3(2)(a) and PD52A 4.1(a) require an application to the lower court to be made at the hearing at which the decision is given, or during an adjournment granted at that time to enable the application to be made. The court therefore had no jurisdiction and was functus officio. The application had to be made to the Court of Appeal.
2. The wording of the current rules provides a clear regime. The prospective appellant must decide whether to seek permission at hand-down or ask then for time to do so. Retrospective adjournment after the hearing is not available on these facts. The earlier approach discussed in Multiplex Construction (UK) Ltd v Honeywell Control Systems Ltd did not alter the result, particularly because the order here had already been sealed.
3. Proposed grounds. Although jurisdiction was absent, the judge stated that he would have refused permission. None of the four grounds had a real prospect of success under CPR 52.6(1)(a), and there was no other compelling reason under CPR 52.6(1)(b). The case turned essentially on its facts, the points of law were untenable, and the Court of Appeal would not lightly interfere with findings of fact.
4. Stay. The applications to stay payment of the interim costs payment and assessment of costs were refused. The evidence did not disclose a sufficient risk that the money would be lost. The question of a stay of assessment could be reconsidered if an application were made to the Court of Appeal and the single judge took a different view.

• High Court (Queen’s Bench Division) — The underlying libel claim resulted in judgment for the claimant and damages of £24,000 in [2017] EWHC 433 (QB). The present court refused to entertain the defendant’s late application for permission to appeal and refused the stay applications.