The appeal of being prepared to appeal

10 September 2018

In 2015, Zipporah Lisle-Mainwaring caught the attention of the Daily Mail when she painted her Kensington townhouse in a striking red and white candy stripe colour scheme.  The property was the subject of a long-running planning dispute between Ms Lisle-Mainwaring and her disgruntled neighbours who objected to her application to demolish the property.  The Daily Mail took an interest in the dispute and published a number of uncomplimentary articles about Ms Lisle-Mainwaring and her unusual colour-scheme which eventually led to her issuing proceedings in harassment against the newspaper’s then publisher, Associated Newspapers.

In the course of the harassment proceedings, Ms Lisle-Mainwaring sought an order for specific disclosure against Associated Newspapers which was heard by Sir David Eady on 21 March 2018.  The application was dismissed by an oral judgment handed down two days later, coincidentally on Eady’s last day in judicial office prior to his retirement.

At the hearing, no application for permission to appeal was made on behalf of Ms Lisle-Mainwaring.  However, later that day, a written application seeking permission to appeal was submitted by email.  Associated Newspapers was not notified of the application.

Conscious that his judicial authority was due to expire at midnight on 23 March 2018, Eady erroneously thought that he was obliged to deal with Ms Lisle-Mainwaring’s application that afternoon.  He proceeded to grant permission for Ms Lisle-Mainwaring to appeal at 4.25 p.m. on 23 March 2018, despite the fact that the Defendant was not aware of the application.

On appeal, the court had to decide: (1) whether permission to appeal had already been validly granted; (2) if it had not, whether permission to appeal should now be granted; and (3) whether the substance of any appeal had been made out in any event.

Upholding the appeal, the Court of Appeal highlighted the importance of following the process set out in CPR Part 52.  In short, a party who wishes to appeal should first seek the permission of the judge against whose judgment the appeal is to be made.  The application should be made at the handing-down of judgment.  It is common practice that a draft judgment is provided to the parties in advance of the judgment’s formal handing-down.  The parties should therefore be ready to make an application at the handing-down.  Even if the judgment is given orally, there should usually be no difficulty in making an application for permission at the hearing itself.

The court accepted that there would be circumstances in which a losing party is not in a positon to know whether or not an application for permission to appeal will be made at the handing-down of judgment.  In such circumstances, the correct course is for the losing party to ask the judge to adjourn that part of the hearing, so that the party has an opportunity to consider its position and make an application later.  The court held that this approach had many advantages, including the ability of the judge to control the making of any subsequent application and to then ensure the proper provision of submissions by both sides, either orally or in writing.

In the present case, Ms Lisle-Mainwaring’s advisers did not follow either of the routes approved by the court and the application was made without any notification to Associated Newspapers.  For these reasons, the court held that Eady’s grant of permission to appeal was invalid.

The judgment provides a helpful overview of the ways in which a losing party can seek permission to appeal and is an important reminder that an application for permission must follow the route set out in CPR Part 52.  Any deviation from the court’s approved route may result in a party losing its right to appeal.  When a party to legal proceedings anticipates being in position where it might be necessary to appeal the decision of a court, the party should remind itself of the correct procedure for seeking permission to appeal before any judgment is handed down and should be prepared to apply appropriately in order to have the best chance of obtaining permission to appeal.

Alice Morrissey Author
Alice Morrissey
Associate
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