Al-Medenni v Mars UK Ltd

In adversarial proceedings, the parties identify the issues for adjudication. A judge may invite or encourage their modification, but must respect the parties’ decision to maintain the case as advanced. Pleadings define the dispute and inform the preparation of evidence. A prejudicial departure requires permission to amend; an alternative factual case raised only in closing submissions may be too late where witnesses have not been questioned about it. If the claimant’s factual case fails, the judge cannot impose liability on an unpleaded alternative which the defendant has had no fair opportunity to investigate or answer.

The claimant, an employee of the defendant factory operator, was injured when a reel of wrapping paper fell onto her shoulder near a machine. She alleged that a fellow employee, Mr Braich, had placed the reel insecurely on the machine. The defendant denied negligence and alleged that the claimant had placed it there herself.

After a liability trial at Reading County Court, Judge Catlin rejected both accounts. He nevertheless found the defendant liable on the basis that an unidentified employee had insecurely fitted the reel. That alternative had not been pleaded or explored with witnesses, although claimant’s counsel adopted it in closing submissions. The defendant sought permission to appeal, contending that the judge could not decide liability on that basis.

1. Permission to appeal was granted and the appeal allowed unanimously. Dyson LJ’s reasoning was expressly adopted by Tuckey and Brooke LJJ. The judge had been entitled to adjudicate upon the issues advanced by the parties, but had exceeded that function by finding liability on an alternative factual basis which had not properly become an issue at trial.

2. The adversarial system required the parties clearly to identify the issues so that each could respond to the other’s case. A judge could invite or encourage the parties to modify those issues. If they declined, the judge had to respect their decision, even where a claim might have succeeded on a different basis. Deciding an unadvanced case created uncertainty and potentially real unfairness.

3. The pleadings were the starting point. The principles stated in Loveridge and Loveridge v Healey [2004] EWCA Civ 173, incorporating the observations in McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775, established their importance in defining the dispute and informing evidential preparation. The claimant’s pleadings, supplemented by further information, attributed responsibility to Mr Braich alone. Advancing responsibility of an unidentified employee required permission to amend. Adopting that alternative in closing submissions was too late: the witnesses had not been questioned about it, and the defendant had lost the opportunity to consider further questioning or additional evidence. There was also no indication in the pleadings, witness statements or conduct of the claimant’s case that she relied on res ipsa loquitur.

4. Once the judge rejected the claimant’s account, the claim was unproved and should have been dismissed. Judge Catlin’s judgment was set aside. The claimant was ordered to pay the defendant’s costs in both courts, subject to detailed assessment if not agreed.

As a procedural footnote, the court stated that appeals from the county court in multi-track cases lay to the Court of Appeal. Lodging the application initially in the High Court had caused delay.

• Court of Appeal (Civil Division): In [2005] EWCA Civ 1041 , permission to appeal was granted and the defendant’s appeal was allowed unanimously. Judge Catlin’s judgment was set aside, with costs awarded to the defendant here and below.
• High Court: The application for permission to appeal was initially lodged there, causing delay. The Court of Appeal stated that the appeal belonged in that court.
• County Court: The appeal was identified as arising from High Wycombe County Court. Judge Catlin, sitting at Reading County Court, gave judgment for the claimant on liability on 7 September 2004 and ordered damages to be assessed. He awarded her 50% of her costs because she had not succeeded on the case pleaded and advanced at trial.