THE JUDGE WAS RIGHT TO REFUSE TO ALLOW A “NEW POINT” TO BE TAKEN ON APPEAL: DON’T FORGET PLEADINGS ARE STILL IMPORTANT…

In Azhar v All Money Matters t/a TFC Home Loans [2023] EWCA Civ 1341 the Court of Appeal rejected a defendant’s argument that it should have been permitted to raise a “new” point on appeal.  The matter upon which the defendant appealed was never pleaded and, prior to trial, the claimant had no notice of the issue.  The case also provides a salutary reminder of the importance of pleadings and the difficulty of appealing “evaluative” case management type decisions.

“It is on the basis of the pleadings that the parties decide what evidence they will need to place before the court and what preparations are necessary before the trial.”

THE CASE

The claimant brought an action for a fee arising from a mortgage offer being made which the defendant did not proceed with. The matter was defended on the grounds that the mortgage did not proceed. No positive case was pleaded in the Defence.

The action proceeded to trial where the claimant was successful.  During the trial the trial judge raised the question of whether, for the contract to be complete, a “Confirmation of Instructions” letter was necessary.  The matter was not pleaded but dealt with in closing submissions.

THE DEFENDANT’S INITIAL APPEAL

The claimant succeeded at trial.  The defendant appealed, arguing that the judge failed to give appropriate weight to the need for a confirmation of instructions letter.  The judge found that this was a “new” point that had not been pleaded prior to the trial. They did not allow the claimant to pursue the point and the appeal failed.

THE DEFENDANT’S UNSUCCESSFUL APPEAL TO THE COURT OF APPEAL

The defendant was equally unsuccessful when the matter reached the Court of Appeal.  The Court held that this was a new point. It had never been pleaded. The fact that the defendant had permission to appeal on that point did not prevent the Court from finding that it could not properly be raised.

THE JUDGMENT ON THIS ISSUE

Lord Justice Lewison set out the history of the matter and held that this was, indeed, a new point and the defendant could not raise it.

1. 1. Having heard evidence DDJ Arnold gave judgment for AMM. Mrs Azhar applied for permission to appeal, and eventually HHJ Lochrane gave her permission to appeal on one point only, namely:

“The judge erred in giving insufficient or no weight to the fact that there was no “Confirmation of instructions letter – an essential element of the definition of Finance Offer in the Agreement.”

The first appeal

1. 1. HHJ Lethem heard the appeal. Mr Stephens advanced two arguments before the judge. The first was that the sole ground of appeal was not a point that was taken at trial; and that it went to the heart of the factual matrix that underpinned the trial. The second was that AMM’s response to the point would be to call additional and further evidence and that the court would need to consider both emails and documents passing between the parties, and also their conversations.

1. 1. HHJ Lethem referred to the relevant authorities on the principle, culminating in Singh v Dass [2019] EWCA Civ 360 and Notting Hill Finance Ltd v Sheikh [2019] EWCA Civ 1337, [2019] 4 WLR 146. In the latter case Snowden J said that there was a spectrum of cases. He continued at [27]:

“At one end of the spectrum are cases such as the Jones case in which there has been a full trial involving live evidence and cross-examination in the lower court, and there is an attempt to raise a new point on appeal which, had it been taken at the trial, might have changed the course of the evidence given at trial, and/or which would require further factual inquiry. In such a case, the potential prejudice to the opposing party is likely to be significant, and the policy arguments in favour of finality in litigation carry great weight.”

1. 1. Snowden J added at [28]:

“At the other end of the spectrum are cases where the point sought to be taken on appeal is a pure point of law which can be run on the basis of the facts as found by the judge in the lower court… In such a case, it is far more likely that the appeal court will permit the point to be taken, provided that the other party has time to meet the new argument and has not suffered any irremediable prejudice in the meantime.”

1. 1. HHJ Lethem examined the transcript of the trial in some detail, in order to decide whether the point was indeed a new one. At [37] he said that as far as he could ascertain there was nothing to put AMM on notice of the point; and at [39] that “before the parties walked into court” he had no doubt that there was nothing to put AMM on notice of the precise argument Mrs Azhar was running at trial. In my judgment he was correct in that assessment. To the extent that the point arose at all, it arose out of questions raised by the Deputy District Judge, and a time when evidence had already been filed and disclosure had taken place. At [40] HHJ Lethem observed that it would have been open to the defendant to apply to amend the Defence, but that was not done.

1. 1. He acknowledged that the point was raised in closing submissions, but as the point had not previously been raised Mr Stephens had to deal with it “on the hoof”. At [55] he said that the issue was “fogged” by the lack of proper pleadings; and that there was no document “to properly alert” AMM that this was a point that was taken. He considered at [56] that there was “a certain confusion” both in Mr Stephens’ mind and that of the judge about the precise point that was being taken “namely whether there had to be a letter or whether other documents would suffice providing there was confirmation of instructions”.

1. 1. At [57] he said that in the circumstances he was not satisfied that the argument was “put to the court at the outset and tried properly”. At [65] he said that it was a case where the issues that arose “had not been trailed in the Defence or in the witness statement”. Since the definition of “Finance Offer” permitted oral or written variation, it would require consideration of the documents passing between the parties and their communications.

Conclusions

1. 1. It is true that Mrs Azhar had been granted permission to appeal on this very point, but where an appellant has been given permission to appeal that does not preclude the respondent from objecting on the ground that it is a new point: Mullarkey v Broad [2009] EWCA Civ 2 at [29]; Brent LBC v Johnson [2022] EWCA Civ 28 at [37]; Gill v Lees News Ltd [2023] EWCA Civ 1178 at [63]. HHJ Lethem was thus fully entitled to consider the objection.

1. 1. Even though this was a case allocated to the fast track, elementary fairness requires that each side knows what points the other side will take. In Prudential Assurance Co Ltd v HMRC [2016] EWCA Civ 376, [2017] 1 WLR 4031 in the judgment of this court (Lewison, Christopher Clarke and Sales LJJ) it was stated at [20]:

“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.”

1. 1. As Lord Phillips MR also said in Loveridge v Healey [2004] EWCA Civ 173, [2004] CP Rep 30 at [23]:

“It is on the basis of the pleadings that the parties decide what evidence they will need to place before the court and what preparations are necessary before the trial.”

1. 1. In UK Learning Academy Ltd v Secretary of State for Education [2020] EWCA Civ 370 David Richards LJ said at [47] that:

“… the statements of case play a critical role in civil litigation which should not be diminished.”

1. 1. Having referred to the spectrum of cases described in the Notting Hill case the judge decided that potential prejudice to AMM was likely to be significant; and that it was not a case in which he could simply rely on the evidence in the lower court. He concluded, therefore, that it was not a case in which he could properly permit a new point to be taken. In my judgment, just as there is a spectrum of cases in the sense described, there is also a spectrum of “newness”. The overriding question in each case is whether the party against whom the point is raised has had fair warning of it and is able properly to deal with it, with the aid (if appropriate) of evidence designed to confront or neutralise the point. That question should not be answered with the benefit of hindsight.

1. 1. The judge’s decision on that question was an evaluative case management decision. Where there is an appeal against an evaluative decision, an appeal court applies the approach explained in the judgment of this court in Re Sprintroom Ltd [2019] EWCA Civ 932, [2019] BCC 1031 at [76]:

“So, on a challenge to an evaluative decision of a first instance judge, the appeal court does not carry out a balancing task afresh but must ask whether the decision of the judge was wrong by reason of some identifiable flaw in the judge’s treatment of the question to be decided, “such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion”.”

1. 1. Where there is an appeal against a case management decision, the principles that an appeal court applies were set out by Coulson LJ in Jalla v Shell International Trading And Shipping Co Ltd [2021] EWCA Civ 1559:

“[27] The starting point is that this was a case management decision, reached after a full day’s argument. In Mannion v Ginty [2012] EWCA Civ 1667 at [18], Lewison LJ said that it was “vital for the Court of Appeal to uphold robust, fair case management decisions made by first instance judges”. That point was reiterated in Abdulle v Commissioner of Police of the Metropolis [2015] EWCA Civ 1260; [2016] 1 WLR 898, where it was made plain that this principle applied, even if the case management decision in question had a very significant impact upon the proceedings.

[28] In such a case, this court can only interfere with the decision of the lower court if the judge had regard to a factor that was irrelevant or failed to have regard to a factor that was relevant, or if the judge’s discretion was “clearly wholly wrongly exercised”: see Eagil Trust Co Ltd v Pigott-Brown [1985] 3 All ER 119 and Royal and Sun Alliance Insurance PLC v T&N Ltd [2002] EWCA Civ 1964, at [38] and [47].”

1. 1. Whichever approach is adopted, an appeal court will not interfere merely because it would have decided differently.

1. 1. The first question is whether the point really was a new point. Mr Thrower argues that it was not because it was raised by the judge, put to Mr Smethurst in cross-examination, and argued in the course of closing submissions. I do not consider that this is a complete answer. The underlying question is whether AMM had been given fair warning before trial of the points it would have to deal with. Mr Thrower asserted in his skeleton argument that no further oral evidence could assist AMM in the absence of a confirmation of instructions letter. But in the first place, as Lloyd LJ said in Mullarkey at [49]:

“A party who seeks to advance a different case, in circumstances such as this, bears a heavy burden as regards showing that the case could not have been conducted differently, in any material respect, as regards the evidence.”

1. 1. Second, Mr Stephens has raised the possibility of an answer to the point based either on waiver or estoppel by convention. I find it impossible to say that if those points had been in issue there could not have been further relevant evidence called. In giving permission to appeal to this court, Andrews LJ said that if it were to have been argued that the parties agreed to dispense with a “confirmation of instructions letter” that is something that should have been pleaded. I agree, but that only points up the difficulty. What reason was there for AMM to have pleaded estoppel or waiver when it did not appear to be in issue either on the pleadings or in the skeleton argument filed on behalf of Mrs Azhar?

1. 1. Mr Thrower submitted that the point he wished to raise was a pure point of law. In one sense that is true because in this jurisdiction (largely for historical reasons) the interpretation of a contract is regarded as a question of law. But that is not an answer in this case in view of the potential defences that Mr Stephens has pointed to. As both Mr Thrower and Mr Stephens advanced their respective positions in this court, it became clearer and clearer that if the point were allowed to be run there would need to be a fresh evaluation of the facts; and the clear possibility that further evidence would need to be called. That is precisely the situation in which an appeal court is entitled to refuse to allow what appears to be a new point of law to be taken on appeal.

Result

1. I cannot see any appealable flaw in the judge’s evaluative decision that this was a point that he should not allow to be advanced on the first appeal. Since it was the only ground on which permission to appeal from DDJ Arnold was granted, it follows that I would dismiss the appeal.