Bennett v Newsquest (London) Ltd

LORD JUSTICE BROOKE: This is an application by Mr Arthur Bennett for permission to appeal against the decision of Eady J in the Queen’s Bench Division on 22 February 2006, when he granted the respondent, Newsquest (London) Ltd, summary judgment against Mr Bennett and dismissed Mr Bennett’s application for an extension of time under section 32A of the Limitation Act 1980 to bring his claim for libel.

For the purposes of this judgment, it is not necessary to say anything about his claim. It was started in the Chancery Division on 9 September 2005, and on the face of the claim it was said that Mr Bennett was seeking damages, costs and an apology for the article published in the defendant’s newspaper on 9 July 2003, and that it was still included on their website. The defendants applied to strike out this claim. On 14 November 2005, Mr Geoffrey Vos, QC, sitting as a deputy judge of the Chancery Division, directed that the action be transferred to the Queen’s Bench Division. He ordered the claimant to provide particulars of his claim and he adjourned the defendant’s application until after the information had been provided. He also extended time for service of the defence until after their application was heard.

On 23 November 2005, Mr Bennett made an application for the extension of the limitation period in relation to the publication to which he complained, because he had not issued proceedings until more than two years after publication. In due course, he provided the required particulars.

The matter was listed for hearing on 22 February 2006. In the bundle of papers before me I do not have the defendant’s application. I only have the third witness statement on which they rely, which was filed on 14 February 2006. Mr Bennett was a litigant in person. He attended court on the morning of 22 February and he said that when he arrived in court at 10.30am he was handed a folder containing at least 190 pages, including a copy of a 17-page skeleton argument. He had no opportunity even to open the folder before the judge entered court. Counsel for the defendant then addressed the judge for an hour and half. Mr Bennett said that he was flabbergasted by what had happened but when I inquired as to whether he had complained to the judge that he had had zero reading time, he felt that it might have been the case that he did not specifically complain. When I asked whether the judge raised with the defendant’s counsel any problems relating to this very late material, he was unable to tell me.

In the conclusion to his grounds of appeal, he said this:

When Mr Bennett addressed me this morning he was obviously in a fairly nervous condition. He certainly appeared to be one those litigants who a court should be anxious to ensure is not affected by unusual events in the course of a hearing.

In my judgment, he does have a real prospect of success in relation to the single matter which appears in section 7 of his grounds of appeal. After describing how the 190-page folder was handed to him, he said that he had no chance whatsoever to prepare anything to say or do in response, as he was taken totally by surprise by this method of treatment.

In the case of R (Kumar) v Secretary of State for Constitutional Affairs [2006] EWCA Civ 990, which this court decided last week, there was another incident in which counsel appeared for defendants on a strike-out application against a litigant in person and presented at the hearing material similar to that that of which Mr Bennett complains. On the material before me, it is not at all clear why, given that Mr Bennett was acting in person; he could not have been given appropriate advance notice of counsel’s skeleton argument and the cases on which he intended to rely, even though counsel was under no obligation to send Mr Bennett copies of the cases in advance.

I have warned Mr Bennett that even if this court were to determine that what happened before Eady J was unfair - and I only have Mr Bennett’s explanation of what happened -he may run into a very considerable problem in advancing this claim, because this very experienced libel judge has ruled that he had no real prospect of success because the defendant appeared to have a watertight defences based on absolute privilege and qualified privilege, and he also refused to exercise his discretion in relation to the Limitation Act. As far as that is concerned, Mr Bennett has observed that he brought in time a claim relating to the continuing presence of the material of which he complained on the internet, long after its original publication.

I was originally intending to adjourn this hearing to direct that it be heard on notice with the appeal to follow if permission was granted. Mr Bennett has been in touch with the Bar’s pro bono unit, which has told him that they would hope to be able to provide him with counsel to argue his case, if permission to appeal is granted. In those circumstances, it appears to me more satisfactory to grant permission to appeal now, so that there will be no question that he will be able to get help from counsel, and counsel will be able to advise him whether it is sensible to continue with these proceedings, even if he does persuade the court on the appeal that what happened was unfair, if the continuation of these proceedings is simply going to mean that a different libel judge in the Queen’s Bench Division strikes these proceedings out for exactly the same reason as Eady J did.

However, that is very much for the future. I consider that there is an arguable point here on which he has a real prospect of success on the material which he has put before me, to the effect that the proceedings before Eady J were not fair, and accordingly I grant permission to appeal.

The case should be listed for two and-a-half hours, with three members of the court, one of whom may be a High Court judge. It would helpful if one member of the court had expertise in defamation law.

When this judgment is available, a copy of it should be sent to Mr Bennett at public expense so that he can show it to the Bar pro bono unit.