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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 >> Vickerage v Cunningham [2018] EWCA Civ 1164 (17 May 2018) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2018/1164.html Cite as: [2018] EWCA Civ 1164

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Haverfordwest County Court
Recorder Craven
A38YM065

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/05/2018

Lord Justice Coulson :

1. The applicant and the defendant were neighbours. Their relationship was very bad for years, and often focused on the behaviour of the applicant's dog, Molly. In December 2012, it was alleged that Molly had bitten the defendant. In consequence, the applicant was prosecuted under the Dangerous Dogs Act. After a Crown Court trial in October 2013, she was unanimously acquitted. Thereafter, the applicant brought a claim for malicious prosecution against the defendant.
2. Following a further lengthy trial, the malicious prosecution action was dismissed by Recorder Craven as long ago as 17 December 2015. This was on the basis of a detailed judgment that ran to over 100 paragraphs. In a subsequent order dated 4 January 2016, he refused the application for permission to appeal.
3. The claimant wrote to the Court of Appeal office on 14 January 2016, but there were no grounds of appeal or any of the other formal documents required to commence an appeal. Indeed the letter was brief and entirely silent as to why the applicant wished to appeal. Further documents were promised by 26 January 2016 but they were not forthcoming. Eventually, at the end of July 2016, and doubtless prompted by the office, the applicant provided an appellant's notice seeking permission to appeal the orders of Recorder Craven. The notice was filed on 21 July 2016. The Court of Appeal seal is date stamped 29 July 2016.
4. The Rules make clear that the appeal starts when the appellant's notice is received at the Court of Appeal office. Here, the appellant's notice was filed 7 months after the judgment. The Rules prescribe a period of just 28 days after the judgment for the filing of the notice. The appeal was therefore brought long out of time. And I am unable to have regard to any document earlier than the notice, because as I have said there was nothing – not even a letter – which set out what the complaints were.
5. An extension of time is therefore required. I have read the papers, including the applicant's letter of 16 July 2016, which addresses the issue of delay. It does not contain any coherent reason for the delay, or explain why the applicant should be entitled to an extension of time in order to bring this appeal.
6. Application for permission to appeal to this court was refused on the papers by Floyd LJ on 13 April 2018. This is therefore an oral renewal. In dealing with the claim for an extension of time, Floyd LJ said that he would not in any event have granted it because:

"…the delay in launching the appeal is very serious and substantial, and the explanation proffered in the letter of 16 July 2016 is unspecific and inadequate. In all the circumstances an extension of time would not be justified."

7. I respectfully agree with that conclusion. This application is being heard 5.5 years after the alleged incident, and 2.5 years after the trial. The applicant's delay is unacceptable and unjustified. Accordingly, in the absence of an extension of time, the application for permission to appeal is out of time and bound to fail. However, because of the views I have reached on the balance of the applicant's applications, I go on to address them, in case I am wrong, and an extension of time is warranted.
8. No matter how many different ways this application is presented, the applicant's underlying complaint is that the Recorder Craven was wrong on the facts to dismiss her claim for malicious prosecution, and that she is entitled to appeal as a result. Having studied the papers, I reject that submission for a wide variety of reasons.
9. The first is a matter of law. The judge spent some time in his careful judgment explaining how and why the defendant, Mrs Cunningham, was not a prosecutor within the definition developed by the courts over many years, and which is a necessary component of any claim for malicious prosecution. Nowhere in the appellant's notice, or in any of the other documents that she has produced, does the applicant begin to suggest that Recorder Craven was wrong in law in his conclusion that the defendant was not a prosecutor. This morning the applicant made plain that she was not a lawyer, so she was unable to respond on this topic. The difficulty with that, of course, is that, if there is no appeal on that issue, it is fatal to the appeal as a whole.
10. In any event, I am clear that the Recorder's analysis is correct. So, the defendant was not a prosecutor, and she could not in law be liable for malicious prosecution. That is again the end of the application. Since the applicant has no positive case to put on the prosecutor point, and I consider that the Recorder was in any event right, this application for permission to appeal must fail.
11. Then there is a wider point about the judge's findings of fact. This court has said repeatedly that it will not interfere with the findings of fact made by a lower court, who heard the witnesses and considered all the circumstances of the case: see, for example, McGraddie v McGraddie & Anr [2013] UKSC 58. Those principles apply in particular to this sort of case, where there was a good deal of hotly-contested oral evidence which the judge had to evaluate. As Lewison LJ has said, the original trial was not a rehearsal; it was the only show in town.
12. As Floyd LJ pointed out in the first paragraph of his written reasons for refusing permission to appeal in this case, "the judge heard witnesses and gave detailed reasons for his conclusion on this issue. There is absolutely no prospect of this court being in a position to reach the opposite conclusion". Again, I respectfully agree with that conclusion.
13. It is clear from the papers that – perhaps understandably – what really upsets the applicant is that, having been acquitted in the criminal court, Recorder Craven found that Molly had bitten the defendant, after all. However such an outcome is, in truth, far from unusual. In a criminal court a jury has to be satisfied of the guilt of the defendant beyond all reasonable doubt. In the civil court, the test is the lower one of the balance of probabilities. From time to time, therefore, different results can occur. Moreover, who knows why the jury decided that they were not sure of the applicant's guilt? It might have been to do with the central fact of whether or not Molly had bitten the defendant, but it could have been some other necessary element of the criminal offence about which they were unsure. Hence the acquittal. None of this has any bearing on the decision of the judge in a civil court, considering all the evidence and deciding whether, on the balance of probabilities Molly did indeed bite the defendant. There is no inconsistency.
14. This morning, the applicant raised a point about the evidence of Mr Philips, a witness who she wished to call (she issued a witness summons) but who did not in the event give evidence. Mr Philips never gave a statement and there is nothing to suggest that he could or would have given any relevant evidence. I am told that the document that exists, which I have not seen, is a draft statement prepared by the applicant, not by Mr Philips. It is therefore of no probative value.
15. Accordingly, for these principal reasons, I am satisfied that this appeal has no prospect of success and I should not grant permission to appeal.
16. There is a related application to adduce further evidence, which also raises a number of disclosure issues. This application was made in March 2017. That was well over a year after the trial in this matter had concluded. Again, I have seen nothing which explains – let alone justifies - that delay. Again, therefore, I consider that this application is out of time.
17. As to the purported further evidence, I have concluded that it is irrelevant to the issues that arose in the malicious prosecution trial. As to that aspect of the application, I can do no better than repeat the detailed conclusions of Floyd LJ in his written reasons for refusing permission to appeal. On this aspect of the case he said:

"The application to adduce further evidence concerns witness statements which seem to have had little or no influence on the judge. Even if the assertion that these witness statements were somehow incorrect or falsified is accepted at face value, they would not be likely to have a material influence on the outcome of the appeal. In fact the further evidence raises as many questions as it answers. The fact that the school did not know that their letter was going to be used at the trial is irrelevant: it is any event addressed to "To whom it may concern". It is by no means apparent that the incident outside school referred to by the teacher was the dog biting one. The role of any RSPCA inspector in the trial remains obscure, and certainly has no relevance to the central incident.

The application for disclosure relates to the evidence of a bruise, but casts no light on the separate evidence of a puncture wound. It is not clear that an application for disclosure was made to the trial judge, as it should have been. In any event it cannot and does not assist the applicant's case for permission to appeal."

18. I agree with that summary of the application in respect of further evidence and disclosure. Indeed, I can add some further examples, from the submissions made by the applicant today:

a) The CPS letter to the defendant was dated September 2015. It was therefore available at the trial although it was not seen by the applicant at that time. Now its contents are completely contrary to the applicant's case, because they make clear that the contemporaneous medical notes confirmed that the defendant had suffered a dog bite. The precise description of the injury as a "wound" is also consistent with that conclusion.

b) The allegations of "falsified" evidence were rejected by the judge. They are not supported by any credible material at all, and I regret to say that the suggestion that a PC changed her evidence for a £129 is wholly unwarranted.

c) The suggestion of intimidation was raised and dealt with by Recorder Craven. It is again therefore not a new point.

19. For all those reasons, therefore, these renewed applications are refused. The applicant may not be happy with the result, but I am in no doubt that she had a more than fair trial. The applications themselves are totally without merit.