Lisle-Mainwaring v Associated Newspapers Ltd

An application to the lower court for permission to appeal must be made when the decision is given, or at a hearing adjourned for that purpose. Once that hearing has concluded without an application or adjournment, permission can be sought only from the appeal court.

Specific disclosure ordinarily follows standard disclosure and remains discretionary. Inadequate standard disclosure will usually justify a corrective order. Even without such inadequacy, the court may exceptionally direct a wider search, including one extending to a train of enquiry. The request must nevertheless be sufficiently specific, proportionate and relevant to the pleaded issues.

The claimant brought harassment proceedings under sections 1 and 3 of the Protection from Harassment Act 1997 concerning newspaper and online articles about the repainting of her house. Sir David Eady dismissed her application for specific disclosure. No application for permission to appeal, or for an adjournment to consider one, was made when judgment was delivered.

Later that day, the claimant applied in writing without notifying the defendant. Believing that his imminent retirement required an immediate decision, the judge purported to grant permission. He subsequently questioned the validity of that grant.

The Court of Appeal considered whether permission had validly been granted, whether it should grant permission afresh, and whether the proposed appeal against the disclosure ruling had substantive merit.

1. Permission had not validly been granted. CPR 52.3(2) and paragraph 4.1 of Practice Direction 52A require an application to the lower court to be made at the hearing when the decision is given. A party needing time should ask the judge to adjourn that part of the hearing. If neither step is taken, permission may subsequently be sought only from the appeal court. The approach in Monroe v Hopkins (No 2) [2017] EWHC 645 (QB) was applied. The purported grant made after the hearing, on a unilateral application and without submissions from the defendant, was invalid.

2. Permission to appeal was refused. The disclosure ruling was a discretionary case-management decision. It disclosed no error of principle and was not plainly or obviously wrong. Paragraph 4.6 of Practice Direction 52A indicated that the appellate court should be slow to entertain such an appeal. There was no compelling reason to interfere with the judge’s exercise of discretion.

3. The relationship between standard and specific disclosure was clear. Standard disclosure under CPR 31.6 is assessed against the statements of case. After receiving the other party’s list, a party may seek specified documents, classes of documents or searches under CPR 31.12. Such an application commonly alleges inadequate compliance with standard disclosure, but it need not do so.

4. If standard disclosure has been inadequate, paragraph 5.4 of Practice Direction 31A indicates that the court will usually make the order necessary to secure compliance. In an appropriate case, paragraph 5.5 permits a wider search for documents which may advance or damage a case, or lead to a relevant train of enquiry. Such an order is exceptional where no inadequacy in standard disclosure has been shown. The claimant had neither sought nor justified such an exceptional order.

5. The remaining document categories were too broad, insufficiently specific, irrelevant to the pleaded harassment claim, or unsupported by evidence that further responsive documents existed. Some requests also appeared to reopen pre-publication matters already excluded from the pleaded case. The proposed appeal therefore failed on its substance as well as at the permission stage. Newey LJ agreed with Coulson LJ.

• Court of Appeal (Civil Division): In [2018] EWCA Civ 1470, held that the lower court’s purported grant of permission was invalid and refused permission to appeal after considering the application afresh.
• High Court, Queen’s Bench Division: Sir David Eady dismissed the claimant’s application for specific disclosure on 23 March 2018. No neutral citation for that decision is stated in the judgment.