UK Learning Academy Ltd v Leeds City Council

An appellate court should not ordinarily determine new strike-out grounds for the first time on appeal where the issue was not decided below and would require the appellate court to act as a tribunal of first instance. That course is exceptional, especially where the unsuccessful party would have no further appeal. The usual course is a fresh application to the court below. Where the original ground for striking out fails, the appeal may be allowed without deciding new or undeveloped grounds. The court also cautioned against severing a defamation claim from a continuous pleading merely to narrow the litigation before the facts and any cause of action have been tested at trial.

UK Learning Academy Ltd brought proceedings against Leeds City Council alleging interference with contractual relations and defamation arising from an email concerning approved training providers for taxi-driver qualifications. The High Court, on an application by the Council, struck out the defamation element because there was insufficient evidence that the Council authored the email.

On appeal, the Council admitted that an employee had authored and sent the email in the course of employment. It nevertheless sought to uphold the strike-out on grounds that the claimant was not identified, that the email was not defamatory, and that the claim was too trivial to justify the use of court resources. The central issue was whether those matters should be determined for the first time by the Court of Appeal.

Appeal allowed. The Council’s admission established the fact on which the High Court’s strike-out decision had proceeded. The appeal therefore succeeded on that ground.

1. The Court of Appeal may in a proper case determine a new issue raised for the first time on appeal where it could dispose of the appeal and required no further findings of fact. Such a course should be adopted only in exceptional circumstances. If the appellate court decided the issue, the unsuccessful party would have no further recourse and the appellate court would have become a tribunal of first instance.
2. Where, as here, the remaining proposed grounds had not been decided below and included new issues concerning identification, defamatory meaning and triviality, the proper course was, if pursued, a fresh application before the court below. The Court of Appeal declined to determine those issues.
3. The court expressed the view that the defamation claim should not readily be severed from the continuous narrative of the pleading merely to reduce the scope of the litigation. It was potentially more economical and expeditious to allow the whole case to proceed to trial, where the facts and any cause of action could be determined. That was a cautionary observation rather than a necessary basis of the decision.

Lady Justice Hallett and Lord Justice Thorpe agreed with Sir Stephen Sedley. The formal order was: application allowed.

• Court of Appeal (Civil Division): Allowed the appeal after the Council admitted authorship of the email. Declined to determine new strike-out grounds raised for the first time on appeal.
• High Court of Justice (Queen’s Bench Division): HHJ Kaye QC struck out the defamation element of the pleading on the ground that authorship of the email could not sufficiently be attributed to the Council.