YOU CAN’T APPEAL ON A POINT THAT YOU HAVEN’T PLEADED: DEFENDANT’S ARGUMENTS GO DOWN THE PAN
There are periodic reminders from the court as to how important the statement of case is. This can be seen in the judgment today in Watt v Dignan & Ors  EWCA Civ 1390.
“I do not agree that a few phrases and sentences, taken out of context, can justify the radical departure from the pleaded case”
“Our procedural system is and remains an adversarial one. It is for the parties (subject to the control of the court) to define the issues on which the court is invited to adjudicate. This function is the purpose of statements of case. The setting out of a party’s case in a statement of case enables the other party to know what points are in issue, what documents to disclose, what evidence to call and how to prepare for trial. It is inimical to a fair hearing that a party should be exposed to issues and arguments of which he has had no fair warning. If a party wishes to raise a new point, he should do so by amending a statement of case”
The claimants succeeded at trial in establishing that they had a right to use toilet facilities on an industrial estate. The judge awarded damages in lieu of an injunction. The defendant appealed. One of the arguments put forward was estoppel.
THE DEFENDANT’S PLEADED CASE ON ESTOPPEL
Lord Justice Lewison observed that there was a considerable difference between the estoppel argument put on appeal and the defendant’s pleaded case.
“Further or in the alternative, it is averred that the Claimants are estopped from relying upon the Right to WC Facilities.
PARTICULARS OF ESTOPPEL
(i) The WC Facilities were removed by 2005 at the latest;
(ii) The Claimants did not make any request for the reinstatement of the WC Facilities until 12 December 2012 but made use of alternative toilet facilities;
(iii) The Claimants utilised the WC Facilities as a storage area and/or dumping ground from 2005 at the latest;
(iv) Such conduct on the part of the Claimants constituted a promise and/or representation to the First Defendant that the Claimants would not use the WC Facilities and/or would not rely upon and/or issue proceedings consequence upon the Right to WC Facilities;
(v) The First Defendant relied upon the Claimants’ promise and/or representation and accordingly demolished part of Unit 27;
(vi) The First Defendant would suffer detriment in the form of rebuilding costs and/or damages if the Claimants were permitted to resile from their promise and/or representation;
(vii) It would be unconscionable for the Claimants to be permitted to resile from their promise and/or representation.”
i) The conduct relied on was the conduct of the Dignans, rather than their predecessors in title, Mr and Mrs Tomlin.
ii) The conduct was said to be a representation to Mr Watt, rather than to his predecessor in title, Tasco LLP.
iii) The detrimental reliance pleaded was the demolition of part of Unit 27, not anything earlier in time.
The case now advanced on appeal is that before Mr Watt bought Unit 27 there was already a completed estoppel as between the Dignans or their predecessors in title on the one hand, and Tasco LLP on the other, and that Mr Watt’s detrimental reliance was not the demolition of the toilet block but his antecedent purchase of Unit 27 with a view to demolition. Alternatively it is said that there was an inchoate estoppel at the time of Mr Watt’s purchase of Unit 27 which crystallised on that purchase. This is a different case to the one that is pleaded.
In Prudential Assurance Co Ltd v HMRC  EWCA Civ 376,  1 All ER 815 this court, in a judgment to which I was a party, said:
“ … Our procedural system is and remains an adversarial one. It is for the parties (subject to the control of the court) to define the issues on which the court is invited to adjudicate. This function is the purpose of statements of case. The setting out of a party’s case in a statement of case enables the other party to know what points are in issue, what documents to disclose, what evidence to call and how to prepare for trial. It is inimical to a fair hearing that a party should be exposed to issues and arguments of which he has had no fair warning. If a party wishes to raise a new point, he should do so by amending a statement of case. We were told that by the time that skeleton arguments for trial were served each party would know what points were in issue. We do not regard that as sufficient. In this case, for example, HMRC’s skeleton argument was served about ten days before the trial started. If (as in fact happened in this case) HMRC wished to argue that the evidence proposed to be called by Prudential was directed at the wrong issue (being an issue that had not been raised before) ten days’ prior notice was manifestly inadequate.
 Although in days gone by the court would routinely allow late amendments to statements of case, in more recent time attitudes have changed. It is now the case that the court requires strong justification for a late amendment. This is not only in the interest of the opposing party but also consonant with the interests of other litigants in other cases before the court and the court’s duty to allocate a proportionate share of the court’s resources to any particular case. Where a new issue arises which is not foreshadowed in a statement of case, a party needs the court’s permission to advance it. The court is then faced with a discretionary case management decision, to be exercised in accordance with the overriding objective.”
Mr Tolson, on behalf of the Dignans, complains that the way in which the case is now put on appeal is not the case that his clients came to meet. The evidence that they called was tailored to the pleaded case; the legal submissions made both in the trial skeleton argument and in closing submissions was also tailored to the pleaded case; and at least one witness whose evidence might have been relevant to the new way in which the case is put was not cross-examined. In my judgment these objections are well-founded. Mr Aslett showed us some passages both in the Dignans’ skeleton argument at trial and in the transcript of counsel’s closing submissions which, he said, showed that everyone appreciated the different case that he was advancing in this court. I do not agree that a few phrases and sentences, taken out of context, can justify the radical departure from the pleaded case. For good measure Mr Tolson showed us other passages in which Ms Mansfield, then appearing for the Dignans, clearly understood that the detrimental reliance was that which had been pleaded: namely the demolition of the toilet block. In addition, I do not consider that there would have been an evidential foundation for the case that is now advanced.