Bentley v Jones Harris & Company

An appellant cannot ordinarily enlarge the grounds of appeal at the hearing by adding issues for which permission was not granted. A late application should be refused where the proposed issues are discrete and the court and respondent have lacked a proper opportunity to prepare. Any intention to raise an issue previously refused permission should be notified as soon as practicable after notification of the relevant order, as indicated by paragraph 4.18 of the Practice Direction to CPR Part 52.

The claimant appealed from a decision of the High Court of Justice, Queen’s Bench Division, given by Mr H K Goddard QC. Permission had been granted on one ground of appeal. On the day of the hearing, newly instructed counsel sought to add two further and discrete issues, without seeking an adjournment. The central question was whether the Court of Appeal should permit the grounds of appeal to be expanded despite the lateness of the application.

The Court of Appeal dismissed the application unanimously. Lord Justice Latham gave the principal reasons, and Mr Justice Burton agreed and added a procedural observation.

1. Late enlargement of grounds. The application was made on the day of the hearing and was too late to be dealt with properly. The proposed issues were separate from the permitted ground and had already been adequately addressed by the judge below. Allowing them would create consequential difficulties in disposing of the appeal and would not serve the interests of justice.
2. Notice of previously refused issues. Burton J drew attention to paragraph 4.18 of the Practice Direction to CPR Part 52. Where the Court has jurisdiction to permit an issue for which permission was previously refused, any intention to raise it should be notified as soon as practicable after notification of the court order. If the appellant wished to argue that the proposed issues were not discrete, timely notice should have been given to enable the court and respondents to prepare and to address the gaps in counsel’s knowledge and submissions.
3. Order. The application to expand the grounds of appeal was refused. The application was dismissed.

• Court of Appeal (Civil Division): refused the application to add two further grounds of appeal and dismissed the application.
• High Court of Justice, Queen’s Bench Division: decision under appeal given by Mr H K Goddard QC; no citation was stated in the judgment.