Palmer v Lane & Anor

An appellate court may refuse permission to appeal where the proposed ground was not raised at first instance, was not foreshadowed by the pleadings, and was not supported by evidence directed to it. This applies even where the argument is ingenious or potentially arguable. Litigation should be conducted by advancing all material points at the outset, rather than introducing a new case after an unsuccessful first-instance decision.

The defendants occupied premises initially with the owner’s permission. The Central London County Court held that their possession became wrongful from 15 May 1997, dismissed their counterclaim for improvements, ordered possession and awarded mesne profits.

The defendants sought permission to appeal on a new argument. They contended that delay in selling the property, allegedly caused by their occupation during a period of rising house prices, had benefited the claimant and should be set off against the mesne profits. The argument had not been raised below, pleaded, or specifically addressed by the evidence. The central issue was whether permission should be granted to advance that point for the first time on appeal.

Lord Justice Schiemann gave the judgment of the court. Lord Justice Rix agreed. The application for permission to appeal was refused, with no order for costs.

1. New point on appeal. The proposed set-off argument had not been advanced before the county court. It was not foreshadowed in the pleadings, and the evidence had not been directed to the factual questions on which it depended. The court therefore considered it unjust to permit the defendants to raise it at this stage.
2. General procedural principle. A party should raise all points on which it intends to rely at the beginning of the litigation. The rule reflects the need to limit the burden and disruption of litigation and prevents a party from presenting a new case after losing at first instance.
3. Merits not determined. The court acknowledged that the argument might possibly have appeared attractive to another court, but it did not decide whether a benefit from the claimant’s property could in principle be set off against mesne profits. The defendants’ proposed appeal would have required further factual findings and a remittal to the county court, which reinforced the injustice of permitting the new point to be introduced for the first time on appeal.

• Court of Appeal (Civil Division): Permission to appeal refused. [2001] EWCA Civ 1670.
• Central London County Court: Mr Recorder Barnard found the defendants in wrongful possession from 15 May 1997, dismissed their counterclaim for improvements, and ordered possession and mesne profits.