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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> X v Berkoff [2002] EWCA Civ 1042 (25 June 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1042.html Cite as: [2002] EWCA Civ 1042

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(SIR OLIVER POPPLEWELL)

		Royal Courts of Justice Strand London WC2 Tuesday, 25th June 2002

1. LORD JUSTICE AULD: Miss X has two claims for damages against Mr Berkoff. The first is for rape which she alleges occurred many years ago and which she maintains caused her serious long-term psychiatric injury. The second is for libel arising out of a statement of Mr Berkoff published in August 2001 that her allegation of rape was untrue.
2. The issue on the claim of rape is not as to the fact of sexual intercourse, but as to whether it was consensual. The issue on the claim for libel is whether Mr Berkoff's statement is true, essentially the same as that in the first action.
3. On 6th and 24th January 2002 His Honour Judge Collins, sitting in the Central London County Court, gave case management directions for the trial of the rape claim, including, on the latter date, a direction, contrary to Mr Berkoff's application, that it should remain in the County Court. On 7th February 2002 Mackay J, on appeal from Judge Collins, directed a stay of certain of his case management directions for trial of them in the County Court, pending determination of Mr Berkoff's application for permission to appeal seeking transfer to the High Court and in respect of two applications as to disclosure.
4. On the 21st and 22nd March 2002 the matter came before Sir Oliver Popplewell on appeal from Judge Collins' refusal to transfer the rape claim to the High Court and in respect of the case management directions as to disclosure made by Judge Collins. Sir Oliver, after considering the relevant criteria for transfer in the Civil Procedure Rules, Part 30.3(2), ruled that the case should be transferred to the High Court, after hearing and granting the application for permission to appeal, and then proceeding to determine the appeal largely on the basis of the argument he had heard on the application.
5. In so ruling, Sir Oliver indicated that he was influenced by: the value of the claim - which Miss X had pitched at between half a million and three quarters of a million pounds; the high probability of and a strong desirability for consolidation with the libel action proceeding in the High Court; the likely complexity of the matter, given the fact that Miss X was acting in person and the manner in which she had so far conducted the proceedings; the fact that Mr Berkoff had some public persona; and, as he concluded, as part of the over-riding objective of doing justice, the saving the costs.
6. In so ordering, Sir Oliver also granted Mr Berkoff a stay as to the two case management directions, which had been given by Judge Collins as to the disclosure of his witness statement before access to Miss X's medical reports, and as to limitation of disclosure of those reports to his psychiatrist, but not to his lawyers.
7. Sir Oliver's reasoning, in a full and careful judgment, was that, following transfer of the rape claim, there would need to be a further case management conference at which these matters and consolidation would have to be considered afresh. He was of the view that the rules gave him power to grant a stay to enable the High Court to take a fresh look at the matter. He refused Miss X permission to appeal his decision to this court.
8. Miss X then filed an application to this court for permission to appeal and in the meantime, on 11th April 2002, sought a stay from Field J of Sir Oliver's order pending the outcome of her application. Field J refused a stay, noting that the only likely activity in the case, pending the hearing of this application, would be a case management conference. His view was that such a conference would not amount to sufficient prejudice to Miss X to outweigh that of delay to Mr Berkoff and the court if her application for permission to appeal was unsuccessful.
9. Arising out of that history of the matter, Miss X first seeks permission to appeal to this court the order of Mackay J staying certain of Judge Collins' case management directions for trial of the matter in the County Court, pending determination of Mr Berkoff's appeal of Judge Collins to the High Court, that is to Sir Oliver Popplewell. Second, and third, Miss X seeks permission to appeal to the Court of Appeal, Sir Oliver Popplewell's order of transfer to the High Court and his grant of a stay of Judge Collins' orders as to disclosure. Fourth, she seeks permission to appeal Field J's refusal of a stay of Sir Oliver Popplewell's order of transfer, pending the outcome of his application for permission to this court to appeal that order.
10. The central issue, in all four of these applications to the Court of Appeal, is whether Miss X should have leave to appeal Sir Oliver Popplewell's order of transfer and grant of a stay of Judge Collins' orders as to disclosure. To succeed in her application Miss X must show that she has a real prospect of success if permission to appeal is granted, or some other compelling reason for the grant of permission.
11. In addition, the basic principles governing appeal as to case management decisions and a second appeal, as in this case, are that the Court of Appeal should be sparing in the grant of permission. As to the former feature, regard should be had to the significance of the potential appeal, the delay that it would entail, and the likely costs. As to the second feature, permission should only be given where the appeal would raise an important point of principle or practice, or there is some other compelling reason for the Court of Appeal to hear it.
12. Miss X, appears in person today (as she has done throughout the tangled history of interlocutory applications in this matter) and has opened her applications by seeking an adjournment. She has submitted a letter from solicitors (whom she instructed last week), dated Friday, 21st of June, to the court seeking an adjournment today in order to allow her to make an application for legal aid to further these various applications and no doubt the substantive litigation underlying them.
13. I have refused her application for an adjournment to pursue the course that she proposed because the application for an adjournment was far too late. These decisions, the first of them as long ago as February, the next in March and the next in April, are all under challenge. Yet Miss X left it until last Friday to indicate a wish to apply for legal aid and for an adjournment for the purpose.
14. Miss X has submitted skeleton arguments with her applications which I have read. I have also read a transcript of the proceedings of 22nd March before Sir Oliver Popplewell. In those proceedings Miss X demonstrated her familiarity with the history of the matter, and her submissions before Sir Oliver and before me today indicate a reasonable understanding of the relevant principles of law.
15. I have also had the benefit this morning of a series of further skeleton arguments, all undated and making overlapping submissions going to all four applications before the court. I heard the oral submissions of Miss X for over an hour and eventually indicated that I had grasped the central point of her concerns, both from her skeleton arguments and from her oral submissions to enable me to rule on these four applications.
16. In summary, Miss X submitted that the proceedings before Mackay J were flawed because of a change of stance by Mr Berkoff's lawyers when the matter had been before Judge Collins. That is no basis for unseating, or seeking to unseat, Mackay J's orders which were the first of the four challenges made by Miss X. The main thrust of her complaint was a challenge to Sir Oliver Popplewell's decision, having granted Mr Berkoff permission to appeal Judge Collins' order, to proceed to the hearing of the appeal pursuant to that permission. She maintained that she was disadvantaged by his doing so because she was a litigant in person and was not ready to proceed with the appeal. She prayed in aid Article 6 of the European Convention on Human Rights and, in particular, one of the principles underlying it, that of equality of arms.
17. Sir Oliver heard the application over a period of two days on the 21st and 22nd March. I have the transcript of the proceedings of 22nd March but not that of 21st March which, through some oversight by somebody, was not prepared for the court. The main reason why Miss X sought to rely upon the proceedings of 21st March was, she submitted, to show bias on the part of Sir Oliver in his handling of the proceedings.
18. As I have said, Sir Oliver considered the application for permission before him and, having effectively heard argument on both sides at some length on the application which he would have heard on appeal, took the view that there would be no injustice in determining the appeal following such full argument, and he did so. This is a case which, it should be remembered, is concerned with case management and the appropriate forum for trial and, pending decision as to those matters, how procedural decisions should stand pending possible further case management review if the matter were to go to the High Court.
19. Having read the transcript of argument before Sir Oliver and his detailed and careful judgment, I can see no basis for saying that injustice resulted from an inequality of arms, or otherwise, in the decision that he made to proceed and determine the appeal, having heard full argument on the matter from both sides on the application. Still less can I say that his decision was wrong.
20. As to the allegation of bias against Sir Oliver, I have read with care the transcript of the proceedings of 22nd March giving rise to the permission to appeal and in turn the grant of appeal. It is plain that, in very difficult circumstances, he bent over backwards to accommodate Miss X's approach to the case as a litigant in person.
21. In my view, there is nothing in any of her arguments that would give a real prospect of success on an appeal, or any other compelling reason for granting her permission to challenge Sir Oliver's decision. He clearly considered all the relevant matters governing transfer under the Civil Procedure Rules Part 33.2 and, in his application of them to the circumstances here, revealed no error of approach that could possibly ground a successful appeal. Nor would the application meet the more stringent criteria that I have identified for case management and second appeals. Accordingly, I refuse permission to appeal on that central issue.
22. In the light of that refusal, Miss X's application for permission to appeal Mackay J's order for his stay of certain of Judge Collins' case management directions and of Field J's refusal of a stay of the transfer order pending the outcome of the challenge to Sir Oliver's order of transfer, fall away. For formality's sake, I refuse both those applications.
23. That leaves the application for permission to appeal Sir Oliver's grant of a stay of Judge Collins' two orders in favour of Miss X as to disclosure. In my view, that application should fail on its merits. There is no real prospect of success. Sir Oliver was clearly correct in his view that, in the event of transfer and of likely consideration of consolidation, the conduct of the whole matter would be the subject of a further case management conference in the High Court, and that the ring should be held until that takes place.
24. As these matters too are case management issues and the subject matter of a second appeal, they do not, in any event, meet the more stringent criteria for granting permission, to which I have referred. Accordingly I refuse this part of the application.
25. All the applications are refused.