Practice and procedure – Appeal – New point – Appellant appealing against decision of deputy district judge in favour of respondent lender – Appeal judge refusing to permit alleged new point to be advanced and dismissing appeal – Appellant bringing second appeal – Whether disputed point put to court at outset and tried properly – Whether judge wrong to refuse to permit new point – Appeal dismissed
In 2016, the appellant wanted to buy a property interest in 46, Camden High Street in which she already had a part share. She needed a loan and signed an agreement with the respondent which included an “arrangement fee” based on a mortgage offer which had been made on 29 March 2017.
When she did not pay, the respondent issued a claim form in the county court. The particulars of claim alleged that it was an express term of the contract that the appellant would pay the claimant an arrangement fee of 2% of the mortgage offer. Since the appellant had accepted mortgage finance arranged by the respondent in the sum of £1,235,000 she was obliged to pay the respondent £24,700. The deputy district judge gave judgment for the respondent.
The appellant appealed contending that 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 appeal judge refused to permit what he regarded as a new point to be advanced as the argument was not put to the court at the outset and tried properly. 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. The judge dismissed the appeal. The appellant was granted permission to bring a second appeal.
Held: The appeal was dismissed.
(1) In deciding whether a new point was being advanced there was a spectrum of cases. At one end of the spectrum were cases in which there had been a full trial involving live evidence and cross-examination in the lower court, and there was 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 was likely to be significant, and the policy arguments in favour of finality in litigation carried great weight. At the other end of the spectrum were cases where the point sought to be taken on appeal was a pure point of law which could be run on the basis of the facts as found by the judge in the lower court. In such a case, it was far more likely that the appeal court would permit the point to be taken, provided that the other party had time to meet the new argument and had not suffered any irremediable prejudice in the meantime: Singh v Dass [2019] EWCA Civ 360 and Notting Hill Finance Ltd v Sheikh [2019] EWCA Civ 1337; [2019] PLSCS 164; [2019] 4 WLR 146 considered.
(2) Although the appellant had been granted permission to appeal on the very point in issue, that did not preclude the respondent from objecting on the ground that it was a new point. The county court was thus fully entitled to consider the objection. Even though this was a case allocated to the fast track, elementary fairness required that each side knew what points the other side would take. It was for the parties (subject to the control of the court) to define the issues on which the court was invited to adjudicate. That function was the purpose of statements of case which enabled the other party to know what points were in issue, what documents to disclose, what evidence to call and how to prepare for trial. It was inimical to a fair hearing that a party should be exposed to issues and arguments of which he had had no fair warning. If a party wished to raise a new point, he should do so by amending a statement of case: Prudential Assurance Co Ltd v HMRC [2016] EWCA Civ 376; [2017] 1 WLR 4031 considered.
(3) The overriding question in each case was whether the party against whom the point was raised had had fair warning of it and was 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. The judge’s decision on that question was an evaluative case management decision. Where there was an appeal against an evaluative decision, an appeal court did not carry out a balancing task afresh but had to 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 undermined the cogency of the conclusion: Loveridge v Healey [2004] EWCA Civ 173; [2004] PLSCS 45, Mullarkey v Broad [2009] EWCA Civ 2, Prudential Assurance, Re Sprintroom Ltd [2019] EWCA Civ 932, [2019] BCC 1031, UK Learning Academy Ltd v Secretary of State for Education [2020] EWCA Civ 370, Brent London Borough Council v Johnson [2022] EWCA Civ 28; [2022] PLSCS 13 and Gill v Lees News Ltd [2023] EWCA Civ 1178; [2023] PLSCS 171 considered.
(4) Whichever approach was adopted, an appeal court would not interfere merely because it would have decided differently. The first question was whether the point really was a new point. The underlying question was whether the respondent had been given fair warning before trial of the points it would have to deal with. 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 was precisely the situation in which an appeal court was entitled to refuse to allow what appeared to be a new point of law to be taken on appeal.
In the present case, there was no 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. It followed that the appeal would be dismissed.
Simeon Thrower (instructed by Green & Olive Solicitors) appeared for the appellant; Mark Stephens (instructed by Freeths LLP) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Azhar v All Money Matters (t/a TFC Home Loans)
