No A2/2002/0739
Neutral Citation Number: [2002] EWCA Civ 1464
IN THE SUPREME COURT OF JUDICATURE                         
IN THE COURT OF APPEAL (CIVIL DIVISION) 
APPLICATION FOR PERMISSION TO APPEAL
AND AN EXTENSION OF TIME
								Royal Courts of Justice
								Strand
								London WC2

							Wednesday, 25th September 2002

B e f o r e:

LORD JUSTICE MUMMERY

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HALFORD
Applicant
- v -

CHIEF CONSTABLE OF HAMPSHIRE CONSTABULARY and Another
Respondents

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)

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MR P McCORMICK (Instructed by O'Hara Rice Scholes of Waterlooville Hampshire) appeared on behalf of the Applicant

The respondents were not represented and did not attend

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J U D G M E N T
1.	LORD JUSTICE MUMMERY: This is an application for permission to appeal. On the application Mr Paul McCormick appears for the appellant, Mr Peter Halford. The matter has not been previously considered on paper. It has been listed directly for an oral hearing. The application is supported by two detailed skeleton arguments prepared by Mr McCormick, the later one being a supplementary skeleton dated 23rd September. They set out in detail the arguments in support of the three grounds of appeal, which are contained in Section 7 of the appellant's notice.
2.	The background to the application for permission is that Mr Halford brought proceedings for defamation, both libel and slander, and malicious falsehood against the Chief Constable of Hampshire in relation to what was said and written by Sergeant Curtis of the Hampshire Police Force. The alleged defamation was in a telephone call of 28th January 1997 with Peta Lack of the Hampshire County Council, Mr Halford's employers. The claim for libel is based on a letter written to Hampshire County Council by Sergeant Curtis on 4th April 1997. The involvement of Sergeant Curtis was in connection with an investigation into an alleged assault. It was alleged that Mr Halford, a senior education welfare officer employed in the education department of the council, had assaulted his 12 year old stepson on the evening of 17th October 1996. That allegation - which was investigated after it had been made by the stepson to his teacher on the following day, 18th October - was later retracted by the stepson and there has never been any prosecution of Mr Halford. But he claims that his reputation has been damaged by what was said and written by Sergeant Curtis in the communications with his employers. The relevance of those communications was that there were disciplinary proceedings by the council against Mr Halford later in June 1997. It was on 6th June 1997 that the writ was issued.
3.	The trial of action started on 11th March 2002 but, for reasons I need not go into, the jury was discharged on 15th March. The trial resumed with a new jury on 18th March. The proceedings were unsuccessful. Judgment was given for the defendants. The orders made by His Honour Judge Richard Walker, which are the subject of this proposed appeal, were that there was insufficient evidence to go to the jury in relation to a finding of malice, the judge having already ruled that the occasion of the communications was the subject of qualified privilege, and hence the relevance of malice. The effect of the judge's rulings was that Mr Halford never had his case decided by the jury; it was decided by the judge alone.
4.	The main ground of appeal is that the judge erred in withdrawing Mr Halford's case on malice from the jury, thereby usurping the function of the jury as the fact finding tribunal. Mr McCormick explains in detail in his skeleton argument why that was an inappropriate step for the judge to take. The second ground of appeal is that the judge erred in making findings of fact and thereby again usurping the function of the jury on qualified privilege, that he had made wrong findings, that he had defined the occasion of privilege too widely and granted the defendants a wider privilege than they were, in law, entitled to have.
5.	I am satisfied on the basis of the two skeleton arguments submitted by Mr McCormick that this appeal has a real prospect of success on the issues of malice and qualified privilege. I grant permission to appeal on those grounds.
6.	I have, however, expressed to Mr McCormick some doubts about the prospects of success on the third ground in which it is alleged that the judge erred in law in denying Mr Halford a fair trial within the meaning of Article 6. The grounds for that complaint are based on orders that the judge made on 12th March 2002 allowing amendments to the defence and allowing oral evidence to be given from witnesses, who had not provided witness statements. That ground explains the reason for the order sought on this appeal that there should be a retrial based on the pleadings and evidence filed and served before those orders were made. Mr McCormick has explained that he bases that ground and the form of order for the retrial on this reasoning, that if it was wrong for the judge to allow these late amendments and this late oral evidence, then it would be wrong to let the respondents have the advantage of that wrong ruling on any retrial. I have explained to Mr McCormick that, in my view, his first two grounds are stronger than the third and that there are dangers in pursuing a ground drawn as the third ground is, in that a considerable amount of time may be taken up and expense incurred in relation to an argument, which has less prospect of success than that arising out of the judge withdrawing the case from the jury on the issue of malice.
7.	I have decided, on reflection, to grant permission to appeal without limitation of grounds. It will be for the advisers of Mr Halford to consider how far they wish to pursue some grounds rather than others. While making it clear that I regard the malice ground as the principal ground of appeal in this case, I grant this application for permission to appeal.
Order: Application allowed