Vickerage v Cunningham

An application for permission to appeal filed outside the prescribed period requires an extension of time. Serious, substantial and unexplained delay will generally defeat that application. In a malicious prosecution claim, a defendant who was not a prosecutor cannot be liable. An appellate court will rarely interfere with factual findings made by a trial judge who heard contested oral evidence and gave detailed reasons. A criminal acquittal does not prevent a different finding in subsequent civil proceedings, because the standards of proof differ and the verdict may have turned on another element. Further evidence must be sought promptly and must be relevant and capable of materially affecting the appeal.

The parties were neighbours whose dispute included an allegation that the claimant’s dog had bitten the defendant. The claimant was acquitted after a criminal prosecution under the Dangerous Dogs Act. She subsequently brought a malicious prosecution claim, which Recorder Craven dismissed on 17 December 2015. Permission to appeal was refused by the Recorder on 4 January 2016.

The claimant filed her appellant’s notice about seven months late. Floyd LJ refused permission on the papers on 13 April 2018. The claimant renewed the application orally and sought an extension of time, permission to appeal, and permission to adduce further evidence and obtain disclosure. The central issues were whether the delay should be excused, whether there was any arguable error in the finding that the defendant was not a prosecutor, and whether the proposed evidence could affect the appeal.

1. Extension of time and permission to appeal. The appellant’s notice was filed approximately seven months after the judgment, although the Rules allowed 28 days. The claimant’s explanation was unspecific and inadequate. The delay was serious, substantial, unacceptable and unjustified, particularly as the application was made years after the alleged incident and more than two years after trial. No extension of time was granted, so the application for permission to appeal was out of time and bound to fail.
2. Malicious prosecution. The Recorder had held that the defendant was not a prosecutor within the legal definition required for a malicious prosecution claim. The claimant identified no arguable legal error on that issue. Coulson LJ considered the Recorder’s analysis correct, and held that the absence of a prosecutor was fatal to the claim.
3. Factual findings. The appellate court applied the established restraint principle in McGraddie v McGraddie & Anr [2013] UKSC 58. It would not interfere with findings made by a judge who heard the witnesses and considered the circumstances, particularly where the evidence was hotly contested and oral. There was no realistic prospect of reaching the opposite conclusion.
4. The criminal acquittal did not create an inconsistency with the civil finding that the dog had bitten the defendant. The criminal court applied the beyond-reasonable-doubt standard, whereas the civil court applied the balance-of-probabilities standard. The jury might have been uncertain about another element of the criminal offence.
5. The application to adduce further evidence was also substantially out of time and the proposed material was irrelevant or unlikely to affect the result. The proposed witness had given no statement, and the document relied upon was prepared by the claimant and had no probative value. The disclosure request did not illuminate the central evidence and was not shown to have been properly made at trial. The renewed applications were refused.

• Court of Appeal (Civil Division): On oral renewal, Coulson LJ refused an extension of time and permission to appeal, and refused the applications concerning further evidence and disclosure.
• Court of Appeal (Civil Division): Floyd LJ refused permission to appeal on the papers on 13 April 2018.
• Haverfordwest County Court: Recorder Craven dismissed the malicious prosecution claim on 17 December 2015 and refused permission to appeal on 4 January 2016.