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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 >> Irving v Penguin Books Ltd & Anor [2001] EWCA Civ 114 (17 January 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/114.html Cite as: [2001] EWCA Civ 114

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE GRAY)

		Royal Courts of Justice Strand London WC2 17th January 2001

Wednesday, 17th January 2001

1. LORD JUSTICE SEDLEY:It is necessary to give only the barest recital of the history of this application. Mr Irving brought defamation proceedings against Penguin Books Limited and Deborah Lipstadt alleging, correctly, that they had defamed him as a historian. On 11th April 2000 Gray J, sitting without a jury, held that the defendants had, however, established the defence of justification. He gave judgment for them and ordered Mr Irving to pay their costs subject to assessment and pending a further hearing. He amended that order the following month to allow the claimant to apply for disallowances and at the same time he refused permission to appeal.
2. At about the same time the defendants obtained an order for a payment of £150,000 on account of their costs to be made by mid-June with liberty to apply for more if permission to appeal was refused by this court or alternatively not sought from it. In August 2000 solicitors now on the record for Mr Irving, who up to that point had been in person, reapplied for permission to appeal together with permission to amend and a stay on Gray J's interim costs order.
3. The matter came before me as a desk application and I adjourned it with directions for exchange of written submissions, deferring meanwhile the applications to amend and for a stay. For reasons that I gave, it was not until 18th December that I was able to give my decision. I refused permission to appeal but enlarged time in order to allow the application to be made. I gave permission to amend but omitted to say in the decision box that there was to be a temporary stay on costs. It was, however, clear from the final paragraph of my written reasons that that was intended and it was put beyond doubt by the Civil Appeals Office earlier this year.
4. The situation is therefore that at present the payment ordered by Gray J is stayed only until today; the opportunity having been afforded to Penguin Books to oppose the continuance of it if so minded, if the application for permission to appeal were renewed to the Full Court. It has been so renewed. Penguin Books have indicated their intention to oppose the continuance of the stay and the matter comes before the court today in those circumstances.
5. What has happened, however, is that Mr Irving, at the 11th hour, has provided Penguin Books with a draft affidavit of his means. The upshot, if the affidavit is correct, is that he is effectively without means and that therefore the payment on account of costs ordered by Gray J -- if enforced in advance of his application for permission to appeal -- would create crushing hardship for him and indeed might put it beyond his power to continue to be represented on the application. A stay, he submits, would create little hardship on Penguin Books, which is a prosperous commercial organisation.
6. Penguin Books, for their part, have asked a series of sensible questions about the draft affidavit which deserve an answer; and if the answers are given it seems, to me at least, that enough would have been done to entitle Mr Irving, subject to any surprises that might emerge from his answers, to continuance of the stay pending the hearing of his application for permission to appeal.
7. It seems to me equally that Penguin Books ought to have the opportunity -- which we understand the solicitors now instructed for Mr Irving are prepared to afford -- to serve any statutory demand and any bankruptcy petition upon those solicitors on behalf of Mr Irving should the occasion arise. That too, I think, should be provided for.
8. The logistics of the application for permission to appeal are such that in my view the work to be done in order to hear the application is such that it would be duplicated if permission to appeal were given and the appeal then heard; and, by contrast, that there would be no waste of effort -- or no appreciable waste of effort -- in doing the work for the application for permission to appeal alone if permission is refused. This is essentially an appeal on fact and detail whether it goes beyond an application or does not. I think the right course is that the application for permission to appeal should be listed with the appeal to follow if permission is granted.
9. Mr Davies has suggested on Mr Irving's behalf that there may be an application to admit further evidence in the appeal, if one is permitted. That is something which -- particularly in a case in which so much detail has already been canvassed -- one views with some alarm. Under the Civil Procedure Rules, the principles stated in Ladd v Marshall remain relevant, not as rules, but as matters necessarily to be considered in the exercise of the Court's discretion to allow further evidence on appeal in accordance with the overriding objective. It therefore seems to me that, if any such application is to be made, it has to be made in detail and promptly, and if necessary disposed of in advance.
10. What I would therefore propose is an order in the following terms: that there be a stay upon Gray J's interim costs order until the hearing of the application for permission to appeal, upon the following undertakings. First, the claimant undertaking (a) to swear forthwith his draft affidavit of means, and (b) to answer on oath the further questions put by the solicitors for Penguin Books in their letter of 16th January 2001, such answers to be given within 14 days but not to include the identities of any individuals who are the sources of receipts shown on the bank accounts to which questions 22 and 25 relate. These answers are to relate to all transactions since the date of judgment, i.e. 11th April 2000, but to the contents of the claimant's fighting fund since 1st January 2000.
11. Next, the stay is also to be upon the defendant's undertaking that information supplied by the claimant pursuant to the foregoing undertaking will be disclosed only to persons within Penguin Books who have a need to know in connection with the proceedings and will otherwise be kept confidential.
12. Finally, the stay is to be upon the undertaking of Mr Irving's solicitors, Nigel Adams and Company, through counsel, that Nigel Adams and Company will accept service on behalf of Mr Irving of any statutory demand and any bankruptcy petition which may be issued.
13. The next head of the order which I would propose is that the application for permission to appeal be listed with the appeal to follow if permission is granted. Three days should be allocated for the hearing. The court will make arrangements with the assistance of counsel's estimates for prereading.
14. The time estimate may be subject to revision in light of the third limb of the order to which I turn: I would propose an order that any notice to the defendants and to the court of an application to introduce new evidence must be given within 28 days of today and be accompanied by all supporting documents and a skeleton argument. Upon receipt of such notice, if any, the court will give written directions for disposal of the application. The defendants are to have fourteen days from receipt of any such notice to make any submissions they wish to make about manner of disposal before the court decides upon it.
15. LORD JUSTICE POTTER:I agree with the judgment of Sedley LJ and the terms of the order which he proposes. It seems to me that the terms of that order were made clear in his judgment but, equally, it seems to me that for the purposes of precision it would be advisable for counsel, in the light of his judgment and the notes they have of it, to agree an order and supply it to the Associate so that the terms shall be beyond doubt.
16. Application allowed for stay of Gray J's cost order.
17. Draft minute of order to be provided by counsel.
18. Costs to be in the application for permission to appeal.