Angeli v Knight & Ors

A party seeking to rely on waiver of an opponent’s procedural right must raise the point at the hearing where the relevant conduct occurred. A point not taken below, and expressly abandoned there, should not be revived on a second appeal, even where permission to appeal was granted on the basis that the point appeared arguable. A litigant cannot adopt a position which induces reliance and later resile from it where that would cause prejudice or otherwise abuse the process. The appeal may therefore be dismissed when fuller facts show that the permitted issue was not live and the challenge was founded on an incomplete account.

The appellant brought fraud proceedings against several defendants, including his trustee in bankruptcy and Barclays Bank plc. The writ was issued in March 1998, renewed ex parte on three occasions and served in April 1999. Barclays challenged the validity of the renewals. The trustee initially sought an extension of time and applied to strike out, but later amended his application to adopt Barclays’ challenge.

Master Hodgson made orders in favour of both defendants. The appellant appealed to Burton J, who rejected his challenge to the extension of the writ. Sedley LJ granted limited permission to appeal on whether the trustee had waived the right to raise the challenge through his earlier procedural steps. The central issue was whether that point could be entertained when it had not been taken before the Master and had been expressly conceded there.

1. Disposition. The Court of Appeal dismissed the appeal unanimously, with costs.
2. Procedural waiver. The point that the trustee had waived his right to challenge the validity of the renewed writ should have been taken before Master Hodgson. It was not taken. The appellant’s counsel expressly accepted that the trustee could adopt Barclays’ successful application and did not rely on the trustee’s earlier procedural steps as a waiver.
3. Resiling from a litigation position. Chadwick LJ stated that a litigant who adopts a position which leads the other party to alter its position cannot resile from it where that would cause prejudice or otherwise abuse the process. The principle applied to the appellant’s attempt to depart from the position taken by counsel on his behalf. The Master had relied on that position in making the order, and the trustee had relied on it in his submissions. The point was therefore not open to the appellant at the appellate stage.
4. Permission granted on incomplete facts. Thorpe LJ explained that Sedley LJ had granted permission on a limited waiver point without being told of the concession before the Master or of the issue of a fresh writ. Permission did not require the Court to determine an issue which, on fuller investigation, was shown not to have been live.
5. Costs. The costs payable by the appellant in respect of the appeal were directed to be determined by a costs judge in accordance with Community Legal Services Costs Regulation 2000, regulation 10, with provision for payment from public funds subject to the resulting order.

1. Court of Appeal (Civil Division): In [2001] EWCA Civ 434, the appeal was dismissed with costs.
2. High Court of Justice (Burton J): On 27 January 2000, the appellant’s challenge to the validity of the renewed writ was rejected.
3. Master Hodgson: The Master made orders bringing the proceedings to an end, including orders in favour of Barclays Bank plc and the trustee in bankruptcy.