Stalham Engineering Limited v Horner & Anor

The court may, assuming it has jurisdiction, refuse permission to enlarge the grounds of an appeal where the application is substantially delayed, unexplained, and would materially expand the respondent’s exposure. The overriding objective requires fairness to both parties. A potentially meritorious ground may properly be excluded where a firm procedural sanction is proportionate and necessary to prevent undue hardship and secure finality in litigation.

The appellant had permission to pursue nine grounds challenging a county court assessment of damages. It later sought, shortly before the appeal hearing, to add a further ground concerning the largest element of the damages award. The respondents had prepared on the basis of a substantially narrower appeal.

The court considered whether it had jurisdiction to extend the permitted grounds, in light of Fieldman v Markovich (4 July 2001). It found it unnecessary to decide that jurisdictional issue because the application failed as a matter of discretion.

1. Application refused. The court declined to extend the grounds of appeal to include ground 10. The appeal was withdrawn.
2. Lord Justice Robert Walker held that, even if the court possessed flexible case-management jurisdiction to enlarge the grounds, the discretion should not be exercised. The proposed ground would approximately double the amount at stake, and the respondents had understood until shortly before the hearing that they faced a materially narrower appeal.
3. The overriding objective required justice to both sides. Excluding a ground which might have had some prospect of success was a severe sanction, but it was proportionate in the circumstances and necessary to avoid undue hardship to the respondents.
4. Lord Justice Keene agreed. He identified three matters: the Civil Procedure Rules contemplated prompt requests for oral reconsideration of refused permission; no such prompt request had been made; and no explanation for the delay had been provided. The fact that an oral hearing had already taken place on other refused grounds made the omission particularly significant. Finality in litigation included finality in the scope of the litigation.
5. Sir Christopher Slade agreed. He considered that ground 10 concerned future contracts, whereas ground 9 concerned existing contracts, and inferred that the failure to pursue ground 10 earlier had been deliberate. He added that ground 10 might in any event have ceased to matter if grounds 1 to 6 succeeded on the proper basis for assessing damages.

• Court of Appeal (Civil Division): The court refused the application to extend the permitted grounds of appeal. The appeal was withdrawn.
• Norwich County Court: The county court assessed damages payable to the respondents following an earlier successful appeal and remittal.