Clarke v Coutts & Co (A Firm)

In a second-tier appeal, permission may be refused for a respondent to raise a further point at the conclusion of its reply where the respondent knew of it at earlier stages and chose not to pursue it. A mistaken belief that raising the point would require an adjournment is insufficient justification. Refusal is particularly appropriate where the point concerns the individual facts rather than a true principle or practice.

David William Clarke appealed to the Court of Appeal from the High Court, Queen’s Bench Division. At the hearing, the respondent sought to raise an additional point, although it had known of the point during both earlier stages of the proceedings and had not previously pursued it. The issue before the Court of Appeal was whether permission should be granted for that late submission, made at the conclusion of the respondent’s reply.

The Court of Appeal, in a judgment given by Lord Justice Simon Brown and agreed by Lord Justice Peter Gibson and Sir Murray Stuart-Smith, unanimously refused the respondent permission to raise the additional point.

1. The respondent had been aware of the point at both earlier stages but had chosen not to take it. The fact that it probably, though mistakenly, believed that advancing the point would require an adjournment did not justify raising it for the first time in this court.
2. The lateness was especially unacceptable because this was a second-tier appeal and the point was raised only at the end of the respondent’s submissions in reply.
3. The proposed point raised no true principle or practice. It turned on the individual facts of the case. That provided a further reason for refusing permission.
4. The respondent’s submissions therefore had to proceed on the basis already established, with the benefit of the respondent’s notice but without the additional point. The judgment records no final disposition of the underlying appeal.

1. Court of Appeal (Civil Division): Appeal from the High Court, Queen’s Bench Division, before His Honour Judge Zucker QC sitting as a judge of the High Court. The Court of Appeal refused permission for the respondent to raise a further point at the hearing.