Abbey Life Assurance Company Limited v Yeap

An appellant will not generally be permitted to amend the grounds of appeal to revive an issue abandoned below. Where the trial judge was not asked to determine a pleaded unfairness challenge, the relevant evidence was not called, and the order dismissed the counterclaim, the issue is treated as abandoned. The court may refuse permission on that basis. It may also observe that the proposed point would face serious difficulties on its merits, particularly where it depends on evidence not tested at trial.

The appellant sought permission to amend his grounds of appeal to raise an unfairness challenge to a contractual term relied upon to terminate his contract immediately. The issue had been mentioned in the amended pleading and during argument below, but the parties proceeded on the regulations issue. After the judge delivered judgment and made observations about the termination, the parties returned only to agree figures and address interest. The judge was not asked to decide the unfairness point. Judgment for Abbey Life had the effect of dismissing the counterclaim. The issue before the Court of Appeal was whether the appellant could revive that point on appeal.

Lord Justice Waller delivered the judgment, with Lady Justice Hale and Lord Justice Dyson agreeing.

1. Abandonment. The unfairness point had been abandoned. Although it appeared in the amended pleading and had been mentioned in argument, the parties chose to proceed with the regulations issue. When they returned after judgment, the appellant did not ask the judge to continue and determine unfairness. The resulting order gave judgment for Abbey Life and dismissed the counterclaim.
2. Procedural consequence. The Court of Appeal would not permit the grounds to be amended to raise the abandoned issue. If the issue had been pursued below, evidence would have been required. Abbey Life would also have needed an opportunity to answer the allegations that the contractual term was oppressive and that its conduct was morally reprehensible.
3. Additional observation. Even if the abandonment hurdle could have been overcome, the appellant accepted that the point faced a very difficult prospect of success in the Court of Appeal. This reinforced the refusal of permission, but was not the primary basis of the decision.

Permission to amend the grounds of appeal in relation to the unfairness point was refused. Permission to incorporate ground 2 was granted.

1. Court of Appeal (Civil Division). Permission to amend the grounds of appeal in relation to the unfairness point was refused. Permission to incorporate ground 2 was granted.
2. Central London County Court. His Honour Judge Coltart gave judgment for Abbey Life, which had the effect of dismissing the appellant’s counterclaim.