Singh v Singh

A party should present its whole case at the first reasonable opportunity, including alternative contentions. This is a principle of substantive justice. On appeal, a court may refuse a new argument which was not raised below, particularly where the opposing party had no opportunity to meet it, the necessary factual findings were not made, and the issue would require a retrial. Costs and proportionality under the new Civil Procedure Rules regime are relevant, as is the risk of fresh injustice. A party should not receive a second opportunity where reopening the case would undermine the trial process and impose disproportionate expense.

The claimant paid £27,647.69 in connection with the proposed acquisition of an off-licence business, including its stock and goodwill and a proposed twenty-year lease. The defendant denied having any dealings with the claimant and maintained that his dealings were with another person.

At first instance, His Honour Judge Orrell found that the defendant had received the money, had orally agreed to the arrangement, and had induced the payments. He ordered repayment because it would be unjust for the defendant to retain the money after the consideration had wholly failed.

On appeal, the defendant accepted the adverse factual findings but sought to raise new arguments concerning the claimant’s knowledge of the draft lease, his delay, and the hardship of repayment. The central issue was whether those arguments should be entertained for the first time on appeal.

1. Appeal dismissed. Lord Justice Sedley delivered the first judgment. Lord Justice Waller agreed entirely and gave additional reasons. The appellant was ordered to pay the respondent’s costs of £7,200.
2. A party must bring its entire case forward at the first reasonable opportunity, including alternative cases. This is a principle of substantive justice rather than merely a technical rule about pleading. The defendant had deliberately run the case below on the basis that he had never dealt with the claimant, so the claimant had no opportunity to address the proposed restitution arguments by evidence or submissions.
3. The Court of Appeal was entitled to consider the practical consequences of admitting the new points. These included the absence of relevant findings by the trial judge, the possible need to remit the matter or order a complete retrial, the delay involved in reopening the judgment, the costs already incurred, proportionality between further costs and the sum in issue, and the risk of fresh injustice.
4. The three proposed points were not capable of being resolved in the defendant’s favour on appeal without undermining the findings already made for the claimant or returning the case to the trial judge. The judge had referred to the claimant’s knowledge that the draft lease named another person, but had not assessed the further issues because they had not been raised. Those issues included whether the defendant had participated in a fraud, whether the claimant had acquiesced, and whether he had been misled into believing that his interests were being protected.
5. Lord Justice Waller added that the knowledge of the draft lease did not make the judge’s finding on inducement clearly wrong. The claimant could have understood that he was entitled to become a party to the lease and could have continued paying because he had already paid part of the purchase price. In any event, allowing the new case would be unfair and disproportionate. The appeal was therefore dismissed.

1. Court of Appeal (Civil Division) — Singh v Singh, [2002] EWCA Civ 992: appeal dismissed.
2. Derby County Court — His Honour Judge Orrell found that the defendant had received the claimant’s money and ordered repayment of £27,647.69. The decision was given on 25 May 2001; no citation is stated in the judgment.