KA-2024-MAN-000008 - [2025] EWHC 2826 (KB)

During the course of argument, I raised the possibility that the Recorder may have erred in failing to address Harrison Bryce’s alternative case that it was in any event entitled to recover its expenses and disbursements on the basis that it had concluded (with justification, as the Recorder found) that Mr Shamaj’s claim was no longer likely to succeed. This would have been a purely contractual claim rather than a claim for damages. It seemed to me that there was no obvious answer to this claim where the Recorder had held that Harrison Bryce was indeed entitled to terminate the retainer and where that retainer must have come to an end at some stage.

As Mr Uddin pointed out, however, the alternative case had never formed any part of Harrison Bryce’s Grounds of Appeal. He submitted that it would be procedurally unfair to determine the point in the absence of prior notice to Mr Shamaj and a properly articulated application to make a late amendment to the Grounds of Appeal.

Dr Rahim did not make any application to amend but instead he presented the appeal firmly on the basis discussed above. He did nonetheless argue in reply that the ground of appeal for which permission had been given was sufficiently broad to encompass the alternative case.

I do not agree. The honesty or otherwise of the claim and the genuineness of the accident have nothing to with a contractual claim based on an entitlement to terminate the retainer. While an appeal on this basis might have succeeded, it was not before the court and so the question does not arise.

For all these reasons, the appeal is dismissed.