Permission to appeal application determinations from the UK Supreme Court

The full list of determinations are available on the UKSC website and JCPC website.

Given the number of cases, we have picked out four determinations in more detail below that may be of interest.

• Corbyn (Appellant) v Millett (Respondent) - UKSC 2021/0109
  On appeal from the Court of Appeal (Civil Division)
  

In 2018, while Mr Corbyn was leader of the Labour Party, he attended a televised interview conducted by Andrew Marr. During that interview, Mr Corbyn was shown a recording of a speech he made in 2013 where he referred to “Zionists” who “don’t understand English irony”. Mr Marr suggested that this was a “strange thing to say”. Mr Corbyn explained that he had been referring to people who had been “very, very abusive” to the Palestinian Ambassador during a meeting with the Ambassador in the House of Commons. Mr Corbyn stated that these people were so “disruptive” that “the police wanted to throw them out of the meeting”.

Mr Millett alleged that he was one of the people to whom Mr Corbyn referred. He brought a claim for (among other things) damages for libel in respect of the words used by Mr Corbyn in the interview. A trial of three preliminary issues was ordered. At that trial, Saini J determined that: (a) the natural and ordinary meaning of the words used by Mr Corbyn referred to Mr Millett; (b) the statement made by Mr Corbyn was one of fact; which (c) was defamatory of Mr Millett at common law. Mr Corbyn appealed in relation to issues (b) and (c), submitting that Saini J had erred in finding that the statement was entirely one of fact and/or that it was defamatory. The Court of Appeal dismissed Mr Corbyn’s appeal on both issues. He now seeks permission to appeal to the Supreme Court.

The issue is: 

Whether the words used by Mr Corbyn referencing Mr Millett were statements of fact which were defamatory.

Permission to appeal be REFUSED because the application does not raise an arguable point of law.

--

• Popoviciu (Respondent) v Curtea De Apel Bucharest (Romania) (Appellant) - UKSC 2021/0152
  On appeal from the Divisional Court of the Queen's Bench Division of the High Court

Gabriel Popoviciu (“Popoviciu”) was convicted in Romania of two offences – accessory to aggravated abuse of power, and bribery – and was sentenced to 7 years’ imprisonment.

On 3 August 2017, a European Arrest Warrant (“EAW”) was issued by the Bucharest Court of Appeal (the “Bucharest Court”) seeking the return of Popoviciu. He was arrested on 14 August 2017 and on 12 July 2019 the Westminster Magistrates’ Court ordered his extradition.

Popoviciu appealed to the Administrative Court on the basis that the judge that convicted him in Romania, Judge Tudoran, had an undisclosed and inappropriate long-standing relationship with the prosecution’s primary witness. Popoviciu provided new evidence from a Romanian lawyer who is investigating Judge Tudoran for various corruption-related offences which shed light on his relationship with the prosecution’s primary witness. The Administrative Court admitted this new evidence and, having taken it into account, overturned the Westminster Magistrates’ Court’s order on the basis that there would be a flagrant breach of Popoviciu’s Article 5 rights if he was returned to Romania, as he would be at risk of being imprisoned for a substantial period there, having previously been convicted after a flagrantly unfair trial. The judge’s undisclosed relationship with the primary witness meant that Popoviciu suffered a complete denial of his Article 6 rights. The Bucharest Court now appeals to the Supreme Court.

The issue is:

In a conviction extradition case, is it sufficient for the requested person to show substantial grounds for believing that there is a real risk that his trial was so flagrantly unfair as to deprive him of the essence of his Article 6 rights, and therefore a real risk that his imprisonment in the requesting state will violate his Article 5 rights?

Permission to appeal be GRANTED.

--

• Royal Mail Plc (Appellant) v Office of Communications and another (Respondents) - UKSC 2021/0124
  On appeal from the Court of Appeal (Civil Division)

The Appellant has historically been the only mail company able to undertake the final delivery of so-called “bulk mail” (such as bank statements and utility bills) to individual addresses. Its competitors, such as the second respondent, collected and sorted bulk mail but would contract with the Appellant for the provision of delivering the mail. The Appellant has been found by Ofcom to have a dominant position in respect of this final delivery market (the so-called “wholesale market”).

The Appellant offers different price plans depending on the type of service required. For National Price Plan 1 (“NPP1”) purchasers of services from the Appellant must post mail across the UK. For National Price Plan 2 (“APP2”), purchasers are not required to send mail so extensively.

The second Respondent purchases certain final wholesale market services from the Appellant. In 2012, however, it began to introduce its own final delivery services in a geographically limited part of the UK but continuing to purchase services in respect of other parts of the country.

In December 2013, the Appellant announced plans to increase the price of APP2 relative to NPP1. The first Respondent Ofcom initiated an investigation meaning that the plans were automatically suspended. The Appellant ultimately withdrew the plans in 2015 without them ever having effect.

In 2018, Ofcom found that the Appellant had abused its dominant position in the wholesale bulk mail delivery market. This was because any purchaser of wholesale bulk mail delivery services from the Appellant which wished to introduce its own final delivery services (such as the second Appellant) in a part of the country would no longer qualify for NPP1, which would cause them to incur the additional costs introduced for APP1. Ofcom concluded that this would make it more difficult for competitors to the Appellant to enter and expand into the wholesale market. Ofcom imposed a fine of £50m on the Appellant.

The Competition Appeal Tribunal and the Court of Appeal dismissed the Appellant’s appeals. The Appellant now appeals to the Supreme Court.

The issue is:

Was the Court of Appeal entitled to uphold the conclusions of the Competition Appeal Tribunal in respect of its treatment of “an efficient competitor” evidence provided by the Appellant?

Permission to appeal be REFUSED because the application does not raise an arguable point of law of general public importance.

--

• Peter John Nygard (Appellant) v Frederick Smith QC and 2 others (Respondents) (Bahamas) - JCPC 2021/0089
  On appeal from the Court of Appeal (Bahamas)
  

The Appellant was alleged to have breached an injunction obtained against him by the Respondents. The alleged breach consisted of the use of correspondence from the First Respondent, the managing partner of the Third Respondent, which represented the Second Respondent in litigation against the Appellant, in related proceedings in New York. The correspondence was said to be privileged and to have been unlawfully obtained via hacking.

On a further application by the Respondents, the Appellant was found to have breached the injunction and thereby committed contempt of court. He was therefore found to be liable for committal. At a subsequent hearing he was sentenced to 90 days’ imprisonment and fined $150,000 for contempt. He was further fined $5,000 per day for as long as he continued to fail to explain his non-attendance at the sentencing hearing and to give a written undertaking that no further use would be made of the correspondence in the New York proceedings in breach of the injunction.

The Appellant appealed unsuccessfully to the Court of Appeal which also subsequently refused conditional leave to appeal to Her Majesty in Council. The Appellant now seeks special leave to appeal to Her Majesty in Council.

The issue is:

Was the Court of Appeal correct to uphold the finding of contempt against the Appellant and the order for his committal for breach of an injunction?

Permission to appeal should be REFUSED because the appeal does not raise an arguable point of law.