Appeal: Claimant’s Skeleton Argument by Adrian Davies

Claimant’s Skeleton Argument

1.  In September 1996 the Claimant issued a writ against the Defendants for libel.

2.  On 11th April 2000 Gray J found in favour of the Defendants on their defence of justification, and refused to give permission to appeal (Vol. A, tab 2).

3.  On 5th May 2000 Gray J ordered (Vol. A, tab 3) the Claimant to make an interim payment of £150,000 to the First Defendants on account of their costs.

4.  The Claimant applied to the Court of Appeal for permission to appeal (Vol. A, tab 4) against Gray J’s judgment, and against his order for an interim payment of £150,000 to the First Defendants (Vol. A, tab 5).

5.  On 18th December 2000, Sedley LJ, while declining (Vol. C, tab 14) to give permission to appeal on the papers, imposed a short stay of execution, and directed that the Claimant should apply to the full Court for a further stay, if he requested an oral hearing of his application for permission to appeal by the full Court.

6.  The Claimant did request an oral hearing, and on 17th January 2001, Sedley and Pill LJJ heard the Claimant’s application to continue the stay, which they granted on terms with which the Claimant has complied.

7.  The Court further ordered that the Claimant’s application for permission to appeal was to be listed with the appeal itself to follow, if permission was granted. 3 days were to be allocated for the hearing and the court would make an assessment of the time needed for pre-reading.

8.  The Claimant indicated his intention to adduce limited further evidence. The Court directed that the Claimant was to give notice to the Defendants and to the Court of any application by him to introduce new evidence on or before 14th February 2001. Any such notice was to be accompanied by all supporting documents and a skeleton argument in support of the application. Upon receipt of any such application, the Court would give written directions for the disposal of that application. The Defendants were to have permission to make submissions (in the first instance, in writing) about that application within 28 days of its receipt or by 14th March 2001.

9.  On 21st February Pill LJ extended the Claimant’s time for applying to introduce new evidence until 28th February 2001. The Claimant has filed a separate skeleton argument in support of that application, and a request for a further extension of time until 1st March 2001 to file the supporting documents.

10.  On 27th February the Court gave notice to the Claimant that the permission application had been listed for 19th March 2001. The Claimant then made written representations by letter dated 16th February why the permission application should be stood out of the list.

11.  That request was refused, whereupon the Claimant requested an oral hearing by letter dated 21st February, and made additional representations by letter dated 26th February 2001.

12.  The practical difficulties in which the Claimant finds himself by the unexpectedly early listing of the permission application are set out with particularity in the letters of 16th February and 26th February mentioned in paragraphs 10 and 11 above.

13.  It is submitted that the relevant principles of law are to be found in CPR 1.1 (2):–

“dealing with a case justly includes, so far as is practicable–

• (a)  ensuring that the parties are on an equal footing:
• (c)  dealing with the case in ways which are proportionate —
• …
• (ii)  to the importance of the case;
• (iii)  to the complexity of the issues; and
• (iv)  to the financial position of each party…”

14.  CPR 1.1 (2) and the right to a fair trial under Article 6 (1) of the European Convention on Human Rights (involving the principle of equality of arms) are to very similar effect.

15.  In Bulut v. Austria (1996) 24 E.H.R.R. para. 47, the ECHR observed:–

“The Court recalls that under the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-à-vis his opponent. In this context, importance is attached to appearances as well as to the increased sensitivity to the fair administration of justice.”

16.  It would be almost impossible to overstate the disparity in resources between the Claimants and the Defendants. The Defendants have effectively unlimited resources at their disposal, while the Claimant is entirely dependent upon the generosity of a few well-wishers to find any funds at all. He could not pay for any representation at first instance.

17.  The Defendants’ advisers acted at first instance, and so know the documents in the case (amounting some 200 lever arch files) thoroughly, which is plainly an immense advantage in preparing for the permission application. In view of the weight of documents and the complexity of the historical and scientific issues involved, it would be wholly unrealistic to suggest that the Claimant’s case could be prepared between now and 19th March to anything approaching an adequate standard.

18.  The Claimant would moreover prefer to be represented by leading counsel on the permission hearing. He has gone to the USA on a trip arranged well before he had notice of the date of 19th March 2001 in an endeavour to raise the funds needed to that end. At present he has not the means to fund representation on the permission hearing by junior counsel alone, let alone by leading counsel.

19.  It is submitted that to refuse the Claimant an adjournment to a fixture allowing him reasonable time to raise the funds necessary to ensure adequate representation and the proper presentation of his case would be utterly unjust, and equivalent in practice to refusing permission without hearing argument.

ADRIAN DAVIES

Chambers of Mr Martin Burr
Temple Chambers
3/7 Temple Avenue
London
EC4Y ODA
DX 146 London (Chancery Lane)

Tel. 0207 353 2929
Fax 0207 353 2946

1st March 2001