Crane (t/a Indigital Satelite Services) v Sky In-Home Ltd & Anor

An appellate court should permit a party to advance a new case only with caution. Permission will ordinarily be refused where the new case may require further evidence, additional findings of fact or an assessment affected by seeing and hearing witnesses. The court must consider for itself the factual issues likely to arise. Any doubt about prejudice should be resolved in favour of the party opposing the amendment.

A new point of law may be allowed where it requires no further evidence and involves little variation from the case already met. The point’s importance does not justify permission where the opposing party remains at risk of prejudice.

The appellant installed and maintained satellite television equipment under contractual arrangements with the respondents. Following termination, he sought financial relief under the Commercial Agents (Council Directive) Regulations 1993. Briggs J dismissed the claim by an order dated 13 February 2007.

Immediately before the appeal, the appellant sought to amend his appellant’s notice. The proposed case asserted that he could qualify as a commercial agent for Sky+ equipment under an autonomous and purposive interpretation of the Regulations, despite not being an agent for that equipment under English law. That case had not been advanced at trial.

The central issue was whether the new case could fairly be raised on appeal when it might require further evidence and factual findings about the substance of the parties’ trading relationship.

1. Application to amend refused and appeal dismissed. Arden LJ held that permission to advance a new case on appeal should not be given lightly. A trial has already given the parties their opportunity to define their cases, adduce evidence and obtain a decision. The appellate court must therefore protect the successful party from unfairly having to meet a materially different case.

2. Under Rule 52.8 of the Civil Procedure Rules 1998, amendment of an appellant’s notice requires permission. The discretion must be exercised consistently with the overriding objective of dealing with cases justly. The court must assess for itself the factual issues likely to be generated by the proposed case and whether the respondent might have adduced other evidence or conducted the trial differently.

3. Where relevant disclosure has not occurred and the respondent has had little opportunity to investigate the proposed case, the respondent need not identify with precision every item of additional evidence it might have called. Any doubt about possible prejudice must be resolved in its favour. The party that failed to raise the point at trial bears the resulting risk.

4. A materially new point may exceptionally be allowed where it is a point of law requiring no further evidence and involving little variation from the case already met. Other relevant circumstances may include an intervening legal development, the importance of the point and, in an appropriate case, a public interest consideration. Those matters do not justify permission where prejudice remains possible.

5. The proposed case required examination of the substance of the entire trading relationship concerning Sky+ equipment, rather than merely the effect of the contractual documents. It raised issues about control of purchasers and prices, restrictions on distributors, the purpose of the contractual structure and customers’ perceptions. Further disclosure, evidence and factual findings might therefore have been required. No adequate explanation had been given for failing to advance the case at trial.

6. Although the proposed grounds raised important questions concerning the interpretation of the Commercial Agents (Council Directive) Regulations 1993, their importance could not remove the risk of prejudice. Once permission to amend was refused, the remaining issues did not arise because they depended upon the appellant establishing that he was a commercial agent for Sky+ equipment.

1. Court of Appeal (Civil Division): By [2008] EWCA Civ 978, refused permission to amend the appellant’s notice to advance a new case and dismissed the appeal.
2. High Court of Justice, Chancery Division: Briggs J dismissed the claim by an order dated 13 February 2007. No citation is stated in the judgment.