THE CURRENT IMPORTANCE OF PLEADINGS 6: A PARTY NOT ALLOWED TO RAISE A MATTER ON APPEAL THAT WAS NOT PLEADED AND NOT CONSIDERED BY THE TRIAL JUDGE

April 22, 2025 · by · in Appeals, Civil evidence, Statements of Case

Another example of the importance of all issues being properly pleaded can be found in the judgment of   Mr Justice Edwin Johnson in Dunya Dervis v Kenan Deniz [2025] EWHC 902 (Ch). The appellant was not allowed, on appeal, to pursue a point that was not pleaded and not raised before the trial judge.

 

“… even if I was minded to permit the Release Claim to be pursued, it seems to me that it would need to be pleaded to, by both parties. In practical terms, this would mean that I would not be able to determine the Release Claim for myself. Instead, it seems to me that the Release Claim would have to be remitted to the County Court, for the Release Claim to be pleaded to by the parties, and then heard at trial, for which appropriate directions would have to be given. I cannot see how it could possibly be right to condemn the parties to this course. Not only would it amount to giving the Appellant an effective second attempt at the action. It would also condemn the parties to further expense and delay, in a case where, it seems clear, resources are limited and it is in the best interests of the parties that this very unfortunate litigation is brought to a conclusion as soon as possible.”

 

KEY PRACTICE POINT

This case shows the importance of considering and pleading all potential (credible) arguments for a party at the outset. The arguments that the appellant wanted to raise on appeal had not been pleaded, nor put before the trial judge. It is unwise to litigate in the expectation that new arguments can be raised on appeal.

THE CASE

The appellant had failed at trial her argument that she was the sole beneficial owner of a property. The trial judge found that the parties were beneficial joint tenants of the property.  The appellant appealed.

THE NEW ISSUE – THE RELEASE CLAIM

On appeal the appellant wished to raise an argument that had not been pleaded. She wanted to argue that certain emails from the responded amounted to the surrender of his interest in the property. However this argument, described as “the release claim”, had not been pleaded.  The emails in question had been in evidence before the trial judge, but not on the basis of any argument that they amounted to a release of the respondent’s interests.

ON APPEAL: COULD THE DEFENDANT PURSUE THE RELEASE CLAIM?

The first issue the judge had to decide was whether the appellant could raise the “release claim” on appeal.  This was not an issue that had ever been pleaded, nor had the argument been put – in the terms the appellant now argued – before the trial judge.

82. I now come to the first of the two issues raised in the appeal, which is whether the Appellant should be permitted to pursue the Release Claim in the appeal.

83. I should start by making it clear that, in my judgment, the Release Claim constitutes a new point, which the Appellant seeks to raise for the first time in the appeal. As such, it seems to me that the Appellant requires my permission to pursue the Release Claim in the appeal. It is not open to the Appellant simply to pursue the Release Claim in the appeal. As I understood Mr Barnes’ position in his oral submissions, he accepted, correctly in my view, that this was the position.

84. I make this position clear however because, as I have explained earlier in this judgment, the Exchanges did feature, to a limited extent, in the Trial. It might also have been said that the Judge made a decision on the effect of the Exchanges, in paragraphs 53-55 of the Second Judgment. I do not think that these features of the Trial render tenable an argument that the Release Claim was raised and was the subject of a decision by the Judge. The Release Claim was never pleaded in the action and, as is clear from the transcripts of the Trial, the Release Claim was not put before the Judge. The Exchanges played only a limited part in the Trial, and were not relied upon for the purposes of advancing the Release Claim or any comparable case. It is clear from the relevant part of the Second Judgment that the Judge, in addressing the Exchanges, did not have in mind the Release Claim or any comparable case. The principal question addressed by the Judge in this part of the Second Judgment was the question of whether the Respondent was admitting, in the Exchanges, that he had never had any beneficial interest in the Property. As I have said, I assume that the Judge addressed the Exchanges in the Second Judgment because they had been relied upon by Ms Ballard in an attempt to support her case that there had never been an intention that the Respondent should have a financial interest in the Property. That case, it is clear, was concentrated on what the intention of the parties had been at the time of the 2018 Transfer. It is true that the Judge went on, at paragraph 55 of the Second Judgment, to consider whether the Exchanges contained a release or gift of the Respondent’s beneficial interest in the Property. It seems clear to me however that the Judge dealt with this point because he considered it to have a bearing on the question of what the Respondent had acknowledged or admitted in the Exchanges.

85. If the Release Claim can be pursued in the appeal, it seems to me that the strict position is that the Appellant is obliged to challenge what was decided by the Judge in paragraph 55 of the Second Judgment. This does not however seem to me to mean that the Release Claim has been decided by the Judge. The conclusions expressed by the Judge in paragraphs 53-55 of the Second Judgment, and in particular the conclusion expressed in paragraph 55 of the Second Judgment were not conclusions expressed on the Release Claim, because the Release Claim was not before the Judge.

 

SHOULD THE COURT, ON APPEAL,  GRANT PERMISSION TO THE APPELLANT TO PURSUE THE ISSUE NOT PUT BEFORE THE TRIAL JUDGE?

The judge carried out a detailed consideration of the authorities and principles relating to raising new issues at the appeal stage and, in particular, the appellant’s arguments that there were comparable cases where this had been allowed. The appellant’s arguments were not accepted by the judge.

“114. Returning to the authorities cited to me on the question of when an appeal court should permit a new point to be taken, and drawing together all of the above analysis, my conclusions are as follows.

115. First, and so far as the question of permission to pursue the Release Claim is concerned, I do not accept, for the reasons which I have given, that the present case is on all fours with Hudson v Hathway. It seems to me that there are significant differences, including important differences in the email statements which were under consideration in Hudson v Hathway and the email statements which are under consideration in the present case.

116. Second, it seems to me that Ms Shalom was right in her identification of where this case lies, on the spectrum explained by Snowden J in Notting Hill Finance. If the Release Claim had been raised at the Trial it would (not might) have changed the course of the Trial significantly, in terms of the evidence and the submissions on that evidence, and would have required further factual enquiry. I do not accept that the Release Claim qualifies or comes anywhere near qualifying as a pure point of law which can be run on the basis of the facts as found by the Judge.

117. Third, and turning to the principles identified by Haddon-Cave LJ in Singh v Dass, it seems to me that the present case falls into that category of cases where, as a general rule, the appeal court should not permit a new point to be raised because the new point either necessitates new evidence or, if the point had been run before the trial judge, would have resulted in the trial being conducted differently.

118. Fourth, Snowden J did admit the possibility, in Notting Hill Finance at [27], that there might be exceptional cases in which the appeal court could properly exercise its discretion to allow a new point to be taken, notwithstanding that the case was on the wrong end of the spectrum, as a case where the course of the evidence at trial would have been different if the point had been taken at the trial. I cannot see that the present case falls into that category of exceptional cases. To the contrary, it seems to me that it would be both unfair and to the prejudice of the Respondent if I was to permit the Release Claim to be pursued now, in circumstances where the Respondent successfully resisted the Principal Claim and the Resulting Trust Claim, with no inkling, at the Trial, that what he had said in the Exchanges would turn out to be at the centre of the case.

119. The conclusions which I have just set out seem to me to be reinforced by this point. In the course of argument I canvassed with counsel what course I should take if I was minded to permit the Release Claim to be pursued in the appeal. My use of the word “pursued”, in my references in this judgment to the raising of the Release Claim in the appeal, is not an accident. It reflects the fact that the Release Claim is not, as it seems to me, aptly described as a “point”. It seems to me that it is a distinct claim, separate to the Claims which were pleaded in the action. As such, the Release Claim required to be pleaded, and the Respondent was entitled to plead his case in response to the Release Claim, with the possibility, if required, of a reply from the Appellant. In the present case this has not happened. The Release Claim was not pleaded and remains unpleaded.

120. If the Release Claim constituted a pure point of law this might not matter. The absence of a pleaded case might be considered not to matter. This is not however the position. In my view, even if I was minded to permit the Release Claim to be pursued, it seems to me that it would need to be pleaded to, by both parties. In practical terms, this would mean that I would not be able to determine the Release Claim for myself. Instead, it seems to me that the Release Claim would have to be remitted to the County Court, for the Release Claim to be pleaded to by the parties, and then heard at trial, for which appropriate directions would have to be given. I cannot see how it could possibly be right to condemn the parties to this course. Not only would it amount to giving the Appellant an effective second attempt at the action. It would also condemn the parties to further expense and delay, in a case where, it seems clear, resources are limited and it is in the best interests of the parties that this very unfortunate litigation is brought to a conclusion as soon as possible.

121. All this, as I have said, seems to me to reinforce my conclusion that it would neither be appropriate nor just to allow the Release Claim to be raised in this appeal.

122. There is one other point which I should mention before I come to my decision on the question of whether the Appellant should be permitted to pursue the Release Claim in the appeal. In the course of his oral submissions Mr Barnes invited me to infer that the failure of the Appellant to pursue the Release Claim at the Trial was because the point was missed by her solicitor advocate at the Trial. In making this submission Mr Barnes drew my attention to what was said by Nourse LJ in Pittalis v Grant [1989] QB 605, at 611 (quoted by Snowden J in Notting Hill Finance at [23]):

“The stance which an appellate court should take towards a point not raised at the trial is in general well settled: see Macdougall v Knight (1889) 14 App Cas 194 and The Tasmania (1890) 15 App Cas 223. It is perhaps best stated in Ex parte Firth, In re Cowburn (1882) 19 Ch D 419, 429, per Sir George Jessel MR: ‘the rule is that, if a point was not taken before the tribunal which hears the evidence, and evidence could have been adduced which by any possibility would prevent the point from succeeding, it cannot be taken afterwards. You are bound to take the point in the first instance, so as to enable the other party to give evidence.’ Even if the point is a pure point of law, the appellate court retains a discretion to exclude it. But where we can be confident, first, that the other party has had opportunity enough to meet it, secondly, that he has not acted to his detriment on the faith of the earlier omission to raise it and, thirdly, that he can be adequately protected in costs, our usual practice is to allow a pure point of law not raised below to be taken in this court. Otherwise, in the name of doing justice to the other party, we might, through visiting the sins of the adviser on the client, do an injustice to the party who seeks to raise it.”

123. Mr Barnes referred me to the concluding part of this extract from the judgment of Nourse LJ, in which reference was made to doing an injustice to the party seeking to raise the new point “through visiting the sins of the adviser on the client”.

124. I do not think that this reference is relevant in the present case, for at least three reasons.

125. First, Nourse LJ was referring to a situation where the new point was a pure point of law and the conditions for raising the new point, as identified by Nourse LJ, were satisfied. In such a case the usual practice should be to allow the new point to be taken. Not doing so would risk the party seeking to raise the new point being held responsible for a failure by their advisers to take the point at first instance. The present case does not fall into this category of case. The Release Claim is not a pure point of law.

126. Second, it is clear that Nourse LJ did not mean to say that permission to take a new point of law should be granted in all cases where the failure to take the point at first instance was the fault of an adviser. All that Nourse LJ was doing, as I read this extract from his judgment, was identifying a possible injustice which might result from refusing permission for a new point of law to be taken in an appeal.

127. Third, what was by Nourse LJ assumes that the failure to take the relevant point at first instance was the result of a failure on the part of the relevant adviser. I am not persuaded that it is appropriate for me to speculate on why the Release Claim was not pursued in the action or at the Trial. There has been no waiver of privilege by the Appellant, and I do not consider that it would be appropriate or fair to infer or assume that the failure to pursue the Release Claim at first instance was the fault of the Appellant’s then solicitor advocate or, for that matter, the firm of solicitors then acting for the Appellant.

128. Drawing together all of the above analysis, and for the reasons which I have set out and applying the guidance in the authorities cited to me on this question, I conclude that the Appellant should not be permitted to pursue the Release Claim in the appeal.