Freund v Charles Scott Developments (South Devon) Ltd

Where an appeal is already proceeding, the Court of Appeal may adjourn a renewed application for permission to appeal on a new point so that it can be considered by the full court at the appeal hearing. The court may take account of the potential importance of the point and procedural economy. The absence of any satisfactory explanation for failing to raise the point earlier, and the court’s provisional view that the proposed argument is weak, remain relevant considerations.

The applicant sought permission to appeal from a decision of Mr Justice Jacob in the High Court, Queen’s Bench Division, Bristol Mercantile Court. Permission had already been granted on the first five paragraphs of the amended grounds of appeal. The renewed application concerned paragraph 6, which raised a new argument based on affirmation and/or estoppel, supported by documentary evidence concerning dealings between the parties before expiry of a conditional sale agreement.

The applicant argued that, under the new CPR regime, the principles in Ladd v Marshall were no longer strict conditions precedent to receiving new evidence. The central procedural question was whether permission and the admission of the new evidence should be determined immediately or adjourned to the hearing of the existing appeal.

1. The renewed application concerned an entirely new point, outside the construction issues considered below. The applicant accepted that there was no explanation or valid excuse for failing to pursue the point earlier.

2. The court was not persuaded, on the material then available, that the proposed new evidence and submissions disclosed a proper case of affirmation or estoppel. The suggested argument was that conduct concerning valuation of the land amounted to affirmation of the agreement, or estopped the respondent from relying on the defect which had defeated the applicant’s rights under the agreement.

3. The court noted the submission that the Ladd v Marshall considerations remained relevant under the new CPR regime but were no longer strictly binding conditions precedent to receiving new evidence. The court did not finally determine that issue.

4. Because an appeal would proceed in any event, and because the new point might be critical to the parties’ rights on one possible view, the application was adjourned to the hearing of the appeal before the full Court of Appeal. Any consideration of permission and admission of the documentary evidence would take place with notice to the respondent, and the appeal could then be dealt with immediately if permission were granted.

Order: Application adjourned to the hearing of the appeal.

• High Court, Queen’s Bench Division, Bristol Mercantile Court: The matter was decided by Mr Justice Jacob. The citation of the decision under appeal was not stated.
• Court of Appeal (Civil Division): Permission had already been granted on the first five amended grounds. The renewed application concerning the sixth ground was adjourned to the appeal hearing.