Reigate & Banstead District Council v Benfield & Anor

On an application to amend grounds of appeal, a proposed new defence based on Convention incompatibility should not be introduced where it was not raised below, its resolution would require evidence, and the late amendment may prejudice the respondent. The appellate court is not ordinarily the forum for resolving disputed factual matters. The potential legal merits do not outweigh procedural unfairness in those circumstances. Unopposed amendments concerning issues that must be determined in any event may be allowed.

The respondent local authority had elected to operate an introductory tenancy regime under Part 5, Chapter 1 of the Housing Act 1996. The appellants sought to amend their grounds of appeal to seek a declaration that the decision was incompatible with Convention rights under Article 14 taken with Article 8 and was therefore unlawful. They argued that unlawfulness would provide a defence to the county-court proceedings. The issue had not been raised below and relevant evidence had not been gathered. The central question was whether the amendment should be permitted at this stage.

Lord Justice Kay allowed the unopposed parts of the application to amend the grounds of appeal, since they concerned matters that would have to be determined in any event. He refused the proposed amendment seeking a declaration that the local authority’s election to operate an introductory tenancy regime under Part 5, Chapter 1 of the Housing Act 1996 was incompatible with Convention rights and unlawful.

1. The proposed Convention-based defence had never been raised in the county court. It had therefore never been considered, and determining it would require factual evidence that had not been collected.
2. The Court of Appeal was not the appropriate forum for deciding those factual matters. Although there were limited circumstances in which an appellate court might undertake such an exercise, none applied here.
3. The local authority was not under a duty to incur the expense of obtaining evidence about a possible defence before the issue became live. If the issue had been raised in the county court, or at an earlier stage of the appeal when permission was sought, the authority could have addressed the evidence then.
4. The appellants’ assertion that the evidence was unlikely to be disputed could not justify the amendment, particularly since they had not seen the evidence. Allowing the issue to be raised at this late stage would be unfair and might prejudice the local authority. Those procedural considerations were sufficient, whatever the legal merits of the proposed defence.

Costs were ordered to be costs in the appeal.

1. Court of Appeal (Civil Division): On appeal from Epsom County Court, the application to amend the grounds was allowed in part. The proposed Convention-based amendment was refused. The order was that costs be costs in the appeal. The judgment is reported at [2001] EWCA Civ 1009.
2. Epsom County Court: The proposed Convention-based defence had not been raised or considered at first instance. No citation for the county-court decision is stated in the judgment.