WXY v Gewanter & Anor [2012] EWHC 1491 (QB)

Case No HQ09X04089[2012] EWHC 1491 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30/05/2012
Before
THE HONOURABLE MRS JUSTICE SLADE DBE
Between
WXYClaimantHenry GewanterDefendantPositive Profile LtdDefendantWXY, - and -, (1) Henry Gewanter (2) Positive Profile Ltd, (3) Mark Burby for WXY Claimant- and -(1) Henry Gewanter (2) Positive Profile Ltd Defendants (3) Mark BurbyClaimant, Defendants for Claimant Defendants
Mr Aiden Eardley (instructed by Archerfield Partners LLP for ClaimantMr Patrick Green QC (instructed under the direct professional access scheme) for Third DefendantHearing Hearing dates: 11 th May 2012
Judgment
[1]Mr Burby seeks permission to appeal the judgment of 6th March 2012. As is recognised by Mr Green QC in his skeleton argument of 20th April 2012, the application for permission to appeal and an application to set aside the judgment of 6th March 2012 overlap to some extent. By email of 16th May 2012 Mr Green QC clarified that permission to appeal the judgment of 6th March 2012 is sought on the following grounds:
“The learned judge: A. failed to have regard to Mr Burby’s Article 6(1) rights to a fair trial and/or the overriding objective in the conduct of the proceedings; B. erred in her approach to Mr Burby’s non-attendance at Court and the reason for it; C. erred in her approach to Mr Burby’s motive for publication.”
[2]Mr Burby did not attend the trial of the claims against him. His application to have the judgment of 6th March 2012 set aside on grounds of his inability to attend has been dismissed. He failed to establish a good reason for not attending the trial. Notwithstanding this, measures were put in place, which are referred to in paragraph 11 of the judgment on 6th March 2012, to keep him informed of the progress of the hearing. The issues of law raised in his Defence were considered. An appeal on Grounds A and B has no prospect of success.[3]As for Ground C, Mr Burby’s motive for publication was fully considered in paragraphs 97 to 102 of the judgment of 6th March 2012. The statement in his letter of 15th July 2011 as to his motive for publication of material relating to the Claimant was considered in the judgment on his application under CPR 39.3(3) to set aside the judgment of 6th March 2012. An appeal on Ground C has no prospect of success.[4]As is made clear in Mr Green’s email of 16th May 2012 proposed Ground of appeal D is not pursued.[5]None of the proposed Grounds of Appeal have any prospect of success. Permission to appeal is refused.