Cavan v Bunting

Factual and Procedural Background

The Plaintiff initiated proceedings in the County Court seeking injunctive relief, resulting in an interim injunction order dated 9 August 2022. This order included undertakings on service and related matters, with costs reserved to the trial judge and a scheduled review in September 2022. Procedural steps such as the filing of a civil bill and affidavits were duly completed by the Plaintiff’s solicitor. Subsequently, the Defendant was found in contempt of the initial order in September 2022, and the interim injunction was extended until further order in October 2022.

The final County Court order, described as a "protection from harassment injunction" with a five-year duration, restrained the Defendant from various specified conduct and included a mandatory element. This order was made in the Defendant’s absence but recorded that counsel for both parties were present. A significant procedural delay of approximately 14 months ensued before the case stated was signed and transmitted to the Court of Appeal in September 2024, far exceeding the procedural time limits and conflicting with principles of expedition and fairness under common law and Article 6 of the European Convention on Human Rights.

Legal Issues Presented

1. Whether the County Court judge was correct in law in deciding that there was material before the court amounting to conduct that was oppressive and unreasonable under the test established in King v Sunday Newspapers [2011] NICA 8.
2. Whether the County Court judge was correct in law to strictly construe and restrict the Defendant’s Article 10 Convention rights regarding the material she published.
3. Whether, in light of the Plaintiff declining to initiate defamation proceedings, the judge was correct in law to determine that the Defendant’s conduct amounted to "torment" sufficient to sustain criminal liability as per King v Sunday Newspapers.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court of Appeal identified multiple procedural and substantive deficiencies in the case stated submitted by the County Court. Procedurally, there was an egregious delay of approximately 14 months in prosecuting the appeal, far exceeding statutory time limits and undermining principles of expedition and fairness, including Article 6 ECHR considerations.

Substantively, the court found the case stated failed to comply with established legal standards governing appeals by case stated. The initial section, purporting to set out "Facts and Inferred Facts," contained predominantly procedural history and no actual facts. The section styled "Contention of Appellant/Defendant" was largely a recital of oral evidence rather than legal argument. The "Judge’s Findings" section conflated findings of fact, legal conclusions, recitations of evidence, and discursive commentary, which is contrary to the strict separation required by precedent.

The court emphasized that findings of fact must be clearly and discretely stated, separate from evidence and legal conclusions, and that the case stated must precisely identify uncontested facts and judicial findings on contentious issues. The legal questions posed were imprecise, incorrectly formulated, and lacked proper linkage to specific factual findings. For example, the test for harassment was misstated as "oppressive and unacceptable" rather than the correct "oppressive and unreasonable" standard.

Regarding Article 10 ECHR rights, the case stated failed to specify the acts of freedom of expression involved or properly analyze the limitations imposed, including the statutory requirements under section 12 of the Human Rights Act 1998. The question concerning the Defendant’s conduct amounting to "torment" sufficient for criminal liability was inadequately supported, lacking identification of the criminal offence, its elements, or evidential basis.

The court also criticized procedural missteps at the appeal stage, including the inappropriate inclusion of voluminous first instance transcripts and skeleton arguments, which distracted from the appellate court’s limited role in reviewing the case stated.

Holding and Implications

The Court of Appeal REMITTED the case to the deputy judge pursuant to section 38(1)(b), (c), and (f) of the Judicature (Northern Ireland) Act 1978 for the formulation of a new case stated. The court directed that the new case stated must comply with the guidance provided in the judgment, specifically requiring clear, precise, and properly structured findings of fact, contentions, and legal questions.

The appellant’s legal representatives are ordered to provide the deputy judge and the respondent’s legal representatives with a new draft case stated within 14 days of the Court of Appeal’s final order. The respondent shall reply within a further 14 days, and the deputy judge must finalize the new case stated within a subsequent 14-day period. The court set a backstop date of 11 April 2025 for completion of this process.

The court declined to dismiss the appeal for want of prosecution despite the delay, acknowledging multiple contributing factors. No new legal precedent was established; the decision’s direct effect is procedural, emphasizing the necessity for proper case stated formulation and timely prosecution of appeals.