Axnoller Events Ltd v Brake & Anor

The court refused permission to appeal, declined to stay costs orders, refused recusal, and gave procedural directions concerning possible contempt proceedings and adjournment of related trials. Permission to appeal requires a real, rather than fanciful, prospect of success or another compelling reason. Findings of fact and evaluative conclusions will not ordinarily justify permission. Apparent bias is assessed objectively by asking whether the fair-minded and informed observer would conclude that there was a real possibility of bias. Adverse findings in earlier or related proceedings do not, without more, require recusal. A stay of enforcement requires evidence addressing the risk of stifling an appeal and the competing enforcement risks. Under CPR Part 81, the court should consider proceeding of its own motion only after those with standing, and then the Attorney General, have been given the opportunity to act.

The judgment determined consequential and procedural applications in three related claims. One claim concerned documents and alleged misuse of private information and breach of confidence. The others concerned possession of property and eviction from a cottage. Earlier judgments had dealt with a preliminary issue and the non-iniquity trial, and Marcus Smith J had dealt with an earlier hearing and directions.

The applications concerned permission to appeal, costs, a further payment on account, a stay of costs orders, possible contempt proceedings, recusal from the future trials, and whether one of those trials should be adjourned.

1. Permission to appeal. Under CPR rule 52.6, permission required a real prospect of success or another compelling reason. The phrase meant a prospect that was not unreal. The proposed appeal principally challenged findings of fact and evidential evaluations. There was evidence supporting the findings, no real prospect of success, and no other compelling reason. Permission was refused.
2. Costs. The defendants were the successful parties and there was no basis for reducing their costs. Costs relating to an unnecessary issue remained recoverable because the issue had required preparation before becoming unnecessary. Standard-basis costs were appropriate. Further payments on account were ordered, including payments for costs reserved on earlier applications.
3. Stay. A stay was not automatic on appeal. The court had to assess all the circumstances, including the risk that enforcement would stifle the appeal, the risk that the respondent could not enforce if a stay were granted, and the ability to recover money if the appeal succeeded. The evidence did not establish that the appeal would be stifled, and the enforcement risk to the defendants was substantial. The stay was refused.
4. Contempt. The court declined to give directions for possible contempt proceedings. CPR rule 81.6 required the court to consider proceeding of its own initiative where contempt might have been committed, but it was appropriate first to ascertain whether persons with standing would apply and, failing that, whether the Attorney General would act.
5. Recusal. The fair-minded and informed observer test applied. A judge’s adverse credibility findings in earlier proceedings, or a favourable assessment of another witness, did not by themselves establish apparent bias where the findings were reached judicially on the evidence in each case. The application was also waived by delay and by asking the judge to continue dealing with the proceedings after the relevant matters had been disclosed. The recusal application was dismissed.
6. Adjournment. If only one future trial could proceed, the possession trial was to proceed and the eviction trial was to be adjourned. The possession claim appeared simpler, and the balance of prejudice favoured that course. The decision did not finally determine the substantive rights in the eviction claim.

The judgment concerned first-instance consequential and interlocutory applications arising from three related High Court claims. It referred to earlier judgments in the documents claim, including [2021] EWHC 670 (Ch), [2021] EWHC 671 (Ch), and an earlier hearing before Marcus Smith J reported at [2021] EWHC 828 (Ch).