Practice - Appeal - Permission to appeal

Hutcheson (formerly known as WER) v Popdog Ltd (formerly known as REW): Court of Appeal, Civil Division (Lord Neuberger, Lord Justices Etherton and Gross): 19 December 2011

In January 2009, the claimant issued proceedings, in anonymised form, against the defendant seeking to restrain the defendant from publishing or communicating certain information relating to his private life (the information). That month, he was granted an interim injunction that restrained the defendant from communicating the information 'until after the conclusion of the trial of this claim or further order of this court in the meantime'.

Subsequently, the parties reached a compromise whereby they agreed to the effect that the interim injunction would continue for the foreseeable future and that the claimant's claim would not otherwise proceed. During 2010, News Group Newspapers Ltd (the additional party) wished to publish the information. In November 2010, it applied to the court to set aside the interim injunction. The application came before the court and judgment was delivered (the first judgment). The judge held that the effect of the parties having compromised the action was that the claimant was 'sitting on an interim injunction as though it gave the permanence and security of a final injunction... but the drawback of a final injunction is that it cannot bite on third parties...'.

He held that, in those circumstances, the interim injunction had, in practice, ceased to be interim in nature once the parties had reached agreement and had, therefore, ceased to bind third parties such as the additional party. The costs of that application were reversed. The claimant immediately issued proceedings against the additional party and other newspaper publishers seeking an order restraining them from publishing the information. He applied for an interim injunction to restrain publication pending trial.

In December 2010, that application came before the court and judgment was delivered (the second judgment). The judge held that, balancing the freedom of expression and freedom of the press relied on by the additional party against the claimant's right to privacy and not to be harassed, and taking into account section 12 of the Human Rights Act 1998, the application would be rejected ([2011] All ER (D) 281 (May)) Accordingly the additional party and other newspaper publishers were free to publish the information, although a protective order was made pending the claimant's application to appeal that decision. The judge awarded the additional party its costs in respect of the application that had led to the first judgment and in respect of the second judgment. The claimant applied for permission to appeal both the first and second judgments. He was granted permission to appeal against the second judgment but his appeal was dismissed ([2011] All ER (D) 172 (Jul)). The instant proceedings concerned the claimant's application for permission to appeal the first judgment.

The additional party submitted that the outcome of the appeal would be academic as between the parties. Even if the court were to conclude that the judge ought to have concluded that the additional party had been free to publish the information despite the existence of the interim injunction, the additional party would still be free to publish information because of the second decision. Further, the additional party's rights under article 10 of the European Convention on Human Rights should prevail over the claimant's rights under article 8 of the Convention. The claimant submitted, inter alia, that even if the appeal was academic as between the parties, it would raise two points which were sufficiently important to justify an appeal being allowed to proceed. The application would be dismissed.

It was established law that the mere fact that a projected appeal might raise a point, or more than one point, of significance did not mean that it would be allowed to proceed where there were no longer any real issues in the proceedings as between the parties. Before an appeal could proceed in circumstances where the issues raised by the appeal would be academic, the court had to be satisfied that it would be in the public interest for the projected appeal to proceed. However, it would be a very rare event, especially where the rights and duties to be considered were private and not public.

Accordingly, save in exceptional circumstances, three requirements had to be satisfied before an appeal, which was academic as between the parties, might be allowed to proceed. First, the court had to be satisfied that the appeal would raise a point of some general importance. Second, the respondent to the appeal had agreed to it proceeding, or had at least been completely indemnified on costs and was not otherwise inappropriately prejudiced. Finally, the court had to be satisfied that both sides of the argument would be fully and properly ventilated (see [12], [15], [28]-[29] of the judgment).

In the instant case, the additional party did not wish the projected appeal to proceed. Furthermore, it would be out of pocket if the appeal proceeded, at the very least to the extent of its own costs of the appeal. There would, in the circumstances, be a real prospect of the first requirement being met if the appeal were to go ahead. The projected appeal would raise at least one issue of general importance, but not of outstanding public importance. The second requirement had plainly not been satisfied. It appeared likely that the third requirement would be satisfied if there were to be an appeal (see [16], [21], [26], [28]-[29] of the judgment).

Gawler v Raettig [2007] EWCA Civ 1560 applied; Bowman v Fels [2005] 4 All ER 609 distinguished; Rolls-Royce Plc v Unite [2009] IRLR 576 distinguished.

Per curiam: It would be wrong to end this judgment without making the following points: (i) it cannot be safely assumed that the judge’s conclusion that, notwithstanding the fact that the court had not varied or discharged the interim injunction, publication of the Information by NGN would not represent a breach of the Spycatcher principle because of the terms of settlement between Mr Hutcheson and NGN, would be approved by this court; (ii) Similarly it cannot be safely assumed that the conclusion in Jockey Club [2003] QB 462, that the Spycatcher principle [[1987] 3 All ER 276] does not apply to final injunctions but only applies to interim injunctions, would be approved by this court; (iii) The history of these proceedings demonstrates the importance of adhering to the terms of Practice Guidance relating to Interim Non-Disclosure Orders (per Lord Neuberger MR at [26] of the judgment).

Hugh Tomlinson QC (instructed by Schillings) for the claimant; The defendant did not appear and was not represented; Adrienne Page QC (instructed by Farrer & Co LLP) for the additional party.