PLEADINGS ARE IMPORTANT: NO LUCK IN TRYING TO ARGUE AN UNPLEADED CASE ON APPEAL: NOT A “DRY, TECHNICAL POINT”
In Kalma & Ors v African Minerals Ltd & Ors  EWCA Civ 144 the Court of Appeal dismissed an appeal brought by unsuccessful claimants. In the judgment it was observed that the claimants were attempting to run a case that was never pleaded.
“The starting point is that the new case is not pleaded. That is not a dry, technical point”
The claimants brought an action alleging the the defendant company had a common purpose with the Sierra Leone police who, it was said had overreacted to events and this led to “violent chaos during the course of which many villagers were variously beaten, shot, gassed, robbed, sexually assaulted, squalidly incarcerated and, in one case, killed”. They were unsuccessful at trial and they appealed to the Court of Appeal.
THE COURT OF APPEAL
The Court of Appeal observed that one of the arguments on appeal was a “new case”. The fact that it was not pleaded was highly relevant.
5.4 The New Case on Inferred Intention
At the appeal hearing, the appellants advanced a new case on inferred intention (“the new case”). It was not pleaded. It may have been somewhere within the dense closing submissions (or their footnotes) that were provided by the appellants, but it was never at the forefront of the appellants’ case advanced before the judge at trial.
The new case works in this way. The appellants say that, even if (contrary to their pleaded case) the respondents did not instigate/direct/counsel/procure the tortious actions of the SLP, a case in common design can still be made out by reference simply to the provision of money, vehicles and accommodation (the assistance), and on what Mr Hermer called “an intent to quash protest, if need be by the use of excessive violence” (the intent). This argument necessarily emphasised that, in relation to the law of common design, the required intent can be conditional so that, to use the well-worn example, an intention to rob a bank if the coast is clear is a conditional intent, but an intent nonetheless.
In exposition of the new case, Mr Hermer said that the respondents could foresee that the SLP might use excessive force and that, by providing them with money, vehicles, and accommodation, they intended that the protests should be quashed, if need be by the use of unlawful force. In this way, he sought to infer the necessary intent, presumably as a way round the judge’s express findings that there was no actual intent on the part of the respondents. In addition, the appellants also suggested that the judge’s findings confused intent with desire: they argued that, although the respondents may not have wanted violence to be used, their intent could still be conditional (“to quash protest if need be by violent means”).
For a variety of reasons, explained in paragraphs 84-107 below, I consider that the new case is unsustainable. It takes what were, on the judge’s findings, neutral acts of assistance to the SLP – the provision of money, vehicles and accommodation – and uses the foreseeability that (regardless of that assistance) the SLP might over-react to the unrest, in order to disregard the judge’s findings as to actual intent and found an entire case based on inferred, conditional intent.
a) New Case Not Pleaded
The starting point is that the new case is not pleaded. That is not a dry, technical point. The focus of the trial was on the allegations that the respondents’ employees were directly involved in and responsible for the over-reaction of the SLP. That case was emphatically rejected by the judge on the facts. The new case, based on what the judge treated as neutral acts of assistance (and which, as he made clear, were not the subject of any real dispute) and inferences as to intent never previously suggested, is far removed from the main areas of debate at the trial. It is not appropriate to criticise the judge because he failed to address such a case, and this court should be very wary of allowing the new case to be developed to such an extent that it starts to run counter to the judge’s myriad findings of fact.