Cheltenham & Gloucester Plc v Ashford

An appellate court may refuse to entertain a new ground of appeal that was not included in the notice of appeal and is raised only at a late stage. That is particularly so where the proposed ground is complicated and cannot fairly be dealt with at the hearing without further adjournment or evidence. Refusal in those circumstances is a proper exercise of appellate discretion.

The appellant appealed from the Medway County Court, where His Honour Judge Russell-Vick QC declined to entertain an additional ground concerning the timing of interest entries on his mortgage account. The ground had not been included in the notice of appeal and was raised at a late stage. Permission to appeal had been granted on a separate MIRAS issue. The appellant renewed his application for permission on the additional accounting issue. The question was whether there was a reasonable prospect of showing that the judge had erred in refusing to entertain it.

1. Renewed application refused. The court was firmly of the opinion that the appellant had no reasonable prospect of persuading it that the judge had erred in refusing to entertain the additional ground.
2. The proposed issue had not been included in the notice of appeal. It was raised too late and appeared to involve a complicated accounting question that could not properly be dealt with at the hearing then taking place.
3. In those circumstances, the judge’s decision not to entertain the additional ground was a proper exercise of discretion. The possible absence of the respondent’s deponent provided an additional reason why the issue could not fairly be addressed at that stage.
4. The court had explained that any challenge to the costs order would be reviewed if the appellant succeeded on the merits. The appellant did not challenge costs independently if the merits appeal failed.
5. Order: permission to appeal on the additional point refused. The appellant was invited to proceed with the MIRAS point.

• Medway County Court: His Honour Judge Russell-Vick QC refused to entertain the additional ground of appeal because it was raised too late and had not been added to the notice of appeal.
• Court of Appeal (Civil Division): the renewed application for permission to appeal on that point was refused. Permission had already been granted on the separate MIRAS issue.