Gray v Elite Town Management

On a second appeal, permission is confined to cases raising an important point of principle or practice or presenting another compelling reason. The importance of the property or statutory subject matter does not suffice where proposed grounds concern only evidential detail. Matters that could have been raised below are too late to introduce by amendment. The Court of Appeal determines points of law arising from the judgment under appeal and does not receive fresh factual evidence on a second appeal.

Mr Gray, appearing in person, sought permission to amend his notice of appeal to introduce new grounds. The proceedings concerned a second appeal from a decision of the Central London County Court, which had itself been made on appeal from an award by a third surveyor under the Party Wall Act 1996.

The proposed amendments concerned the evidence and matters which had not been raised at the County Court hearing. The central issues were whether the amendments satisfied the second appeals test and whether they could properly be considered without fresh factual evidence.

1. Application refused. The judgment was given by Lord Justice Jackson as the judgment of the court.
2. Rule 52.13 of the Civil Procedure Rules requires permission for a second appeal from a decision of the County Court, family court or High Court which was itself made on appeal. Permission is available only where the appeal would raise an important point of principle or practice, or where there is another compelling reason for the Court of Appeal to hear it.
3. The court accepted that genuine points of law under the Party Wall Act 1996 might raise important points of principle or practice, particularly in a context where basement construction and substantial sums were involved. The proposed grounds, however, concerned only detailed evidential matters. They therefore failed the second appeals test.
4. The proposed matters could have been raised in the County Court. The court also identified an inconsistency between the proposed amendments and the arguments previously advanced below, on which Mr Gray had succeeded and obtained a favourable award under section 11(11) of the Party Wall Act 1996.
5. The proposed grounds would require further factual evidence. It was not the function of the Court of Appeal, hearing a second appeal in a party wall matter, to receive fresh evidence. Its task was confined to points of law arising from the judgment under appeal.

For those reasons, the application to amend the notice of appeal was refused.

• Court of Appeal (Civil Division) — in [2016] EWCA Civ 1216, refused the application to amend the notice of appeal.
• Central London County Court — Judge Bailey heard an appeal from an award by a third surveyor under the Party Wall Act 1996.