Al-Medenni v Mars UK Ltd

In adversarial civil litigation, the parties must identify the issues on which the case is to be decided. A judge may invite them to alter or widen those issues, but may not determine the claim on an unpleaded and unadvanced factual basis if they do not do so.

Pleadings define the evidence and preparation required for trial. A party seeking to rely on an alternative case that departs from its pleaded case must seek permission to amend. A late alternative which has not been explored with witnesses may unfairly prejudice the opposing party and cannot properly found judgment.

The claimant was injured at work when a reel of wrapping paper fell from a machine. She pleaded and presented her case on the basis that a named fellow employee, Mr Braich, had placed the reel insecurely on the machine. The employer alleged that the claimant had herself placed it unsafely.

His Honour Judge Catlin found that neither the claimant nor Mr Braich had placed the reel on the machine. He nevertheless found liability on the basis that an unidentified employee had done so carelessly. The employer appealed against that finding of liability.

The central issue was whether the judge could uphold the claim on that unpleaded and untested “third man” theory.

1. Appeal allowed. Lord Justice Dyson, with whom Lord Justice Tuckey and Lord Justice Brooke agreed, held that the judge was not entitled to find liability on the unidentified-employee theory. The judgment for the claimant was set aside.

2. The case as pleaded, supplemented by the further information, alleged that Mr Braich and no other person had placed the reel on the machine. The alternative theory was not pleaded, was not advanced in the opening, and was not explored with the witnesses. It was raised only faintly in closing submissions, when it was too late.

3. The court reaffirmed that the adversarial system requires parties to define the issues for decision. A judge may invite or encourage a party to recast its case, but must respect a decision not to do so. Otherwise the opposing party may be denied the opportunity to investigate, call evidence on, and answer the new case.

4. Applying Loveridge and Loveridge v Healey [2004] EWCA Civ 173, the court held that pleadings mark the parameters of the dispute. The claimant needed permission to amend before relying on an alternative case inconsistent with her own evidence and original case. Since the judge had found that neither pleaded factual account was established, the claim had not been proved and should have been dismissed.

5. The court granted permission to appeal, allowed the appeal, set aside Judge Catlin’s judgment, and ordered the claimant to pay the employer’s costs at first instance and on appeal, subject to detailed assessment if not agreed.

• Court of Appeal (Civil Division): Allowed the employer’s appeal in Al-Medenni v Mars UK Ltd [2005] EWCA Civ 1041, set aside the liability judgment, and dismissed the claim.

• County Court: His Honour Judge Catlin gave judgment for the claimant on liability on 7 September 2004, ordered damages to be assessed, and awarded the claimant 50% of her costs.