CA-2024-002472 - [2025] EWCA Civ 1407

It seems to me that the first question for determination must be whether the way in which NHG now seeks to put its case (i.e. that URE is deemed to have knowledge of its contractual right to terminate in the event of an amalgamation) is open to it on appeal. As to this, I would accept that the point is, albeit only just, open to NHG on the pleadings. NHG pleaded that URE lost the right to terminate the contract on the basis of the amalgamation by affirming the contract on numerous occasions and that:

‘At all material times, URE was (or ought to have been) aware of its right to terminate under clause 10.2(d). This is because:

(i)

it was an express clause in the Contract to which URE was a party; …’

That said, NHG does not appear to have advanced any submission in the court below (or on the summary judgment application) that, as a matter of law, a contracting party must be deemed to have knowledge of the express terms of a contract to which it has agreed and that on this basis the decision of this court in Peyman v Lanjani should be distinguished. The judge therefore cannot be criticised for not having dealt with any such submission in her judgment.

The circumstances in which a party will be allowed to take a new point on appeal have been considered in a number of recent cases, including Prudential Assurance Co Ltd v Revenue and Customs Commissioners [2016] EWCA Civ 376, [2017] 1 WLR 4031, Singh v Dass [2019] EWCA Civ 360 and Notting Hill Finance Ltd v Sheikh [2019] EWCA Civ 1337. In the first of these cases, Prudential Assurance, Lord Justice Lewison said that:

‘25. If the point is a pure point of law, and especially where the point of law goes to the jurisdiction of the court, an appeal court may permit it to be taken for the first time on appeal. But where the point, if successful, would require further findings of fact to be made it is a very rare case indeed in which an appeal court would permit the point to be taken. In addition before an appeal court permits a new point to be taken, it will require a cogent explanation of the omission to take the point below.’

The later cases, however, have not insisted on ‘a cogent explanation’ as an inevitable requirement of permitting a point of law to be taken. Thus in Singh v Dass Lord Justice Haddon-Cave set out the applicable legal principles in the following terms:

‘15. The following legal principles apply where a party seeks to raise a new point on appeal which was not raised below.

16.

First, an appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court.

17.

Second, an appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial (Mullarkey v Broad [2009] EWCA Civ 2 at [30] and [49]).

18.

Third, even where the point might be considered a “pure point of law”, the appellate court will only allow it to be raised if three criteria are satisfied: (a) the other party has had adequate time to deal with the point; (b) the other party has not acted to his detriment on the faith of the earlier omission to raise it; and (c) the other party can be adequately protected in costs. (R (on the application of Humphreys) v Parking and Traffic Appeals Service [2017] EWCA Civ 24; [2017] R.T.R. 22 at [29]).’

The judgment of Mr Justice Snowden in Notting Hill Finance Ltd v Sheikh, paras 21 to 28, is to the same effect.

Accordingly, an appellate court has a discretion to permit a new point to be taken on appeal. This discretion is more likely to be exercised if the point is one of law which would not require further evidence or factual findings, would not have affected the conduct of the proceedings below, and does not prejudice the other party in a way which cannot be compensated in costs. The absence of an explanation why the point was not taken below is a factor to be considered, but is not necessarily fatal.

In the present case the point which NHG seeks to advance is a point of law and it was not suggested that any further evidence or factual findings would be necessary. Mr Sims suggested that the proceedings below might have been conducted differently if the point had been taken, but that seems to me to be very doubtful. URE would still have needed to make good its factual case that Mr Ensor did not know about the right to terminate and that would have required the same evidence and waiver of privilege which in fact occurred. Mr Sims submitted also that the point would or might have been relevant to the way in which URE had funded the litigation, including the terms of its ATE (after the event) insurance policy, but there was no evidence about this (despite the fact that the point which NHG seeks to run has been clear since service of its skeleton argument for the appeal on 6^th November 2024) and this submission seems to me to be highly speculative.

I am satisfied that allowing NHG to run this point would not cause prejudice to URE which cannot (if appropriate) be compensated in costs and I would permit it to do so. It is true that there has been no explanation of why the point was not run below, although the simple explanation seems likely to be that NHG’s legal team had not thought of this way of putting the case. Be that as it may, I would permit NHG to advance the argument which it wishes to make.