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Gordon
None of the judgments makes clear precisely what was said in the pleadings. In particular, what case (beyond general denials/non-admissions) did the Defendant put forward in its Defence? It’s also surprising that the judgments contain no mention of Rule 16.5. Did the Defendant make clear what its arguments would be (whether in the pleadings or in correspondence), or did it save them up and deploy them only in closing submissions?
For a good example of one of the parties not being allowed to “ambush” its opponent by raising matters for the first time in closing submissions, see Grimm v Newman [2002] EWCA Civ 1621 (at [64] to [74]) . Again, that decision is not mentioned in the judgments in this case.