Singh v Dass

An appellate court will generally refuse a new point which was not raised below if it would require fresh evidence or would have caused the trial evidence to be presented differently. Either condition is sufficient.

A payment restarts time under section 29(5) of the Limitation Act 1980 only if it relates to the debt or liquidated pecuniary claim in issue and is made to the creditor or the creditor’s agent. Whether a post-termination payment satisfies those requirements may depend on evidence about its purpose, recipient and relationship to any separate debts or running account.

Singh v Dass concerned an oral building contract. The claimant issued proceedings for unpaid labour and materials almost six years after the defendant had purportedly terminated the contract. A District Judge in Birmingham County Court found that the contract ended on 23 November 2008 and dismissed the claim as statute-barred under section 5 of the Limitation Act 1980.

Permission to appeal was granted on a new ground. The claimant contended that payments made after termination caused the right of action to accrue afresh under section 29(5). That point had not been raised or investigated below. The central issue was whether the claimant should be permitted to advance it for the first time on appeal.

1. Appeal dismissed. Haddon-Cave LJ gave the judgment, with which Moylan and McCombe LJJ agreed. The claimant was not permitted to raise the section 29(5) argument for the first time on appeal.

2. An appellate court approaches a new point with caution. Under Mullarkey v Broad [2009] EWCA Civ 2, a point will not generally be permitted where it would require new evidence or where its earlier deployment would have altered the conduct of the trial evidence. Even a pure point of law is ordinarily permitted only if the opposing party has had adequate time to respond, has not acted to their detriment because of the omission, and can be protected in costs: R (on the application of Humphreys) v Parking and Traffic Appeals Service [2017] EWCA Civ 24.

3. Section 29(5) of the Limitation Act 1980 treats a claim for a debt or other liquidated pecuniary claim as accruing afresh when the liable person acknowledges the claim or makes a payment in respect of it. The provision covers ascertainable contractual debts and reasonable contractual sums, but excludes unliquidated damages. Under section 30(2)(b), a qualifying payment must be made to the creditor or the creditor’s agent and must relate to the claim in issue.

4. Determining whether the post-termination payments satisfied those requirements would demand factual findings about the purpose and recipient of each payment, whether labour and materials were separate debts, and whether the parties operated a single running account. The claimant would also have to establish that the payments acknowledged the claimed total, an accepted lesser balance or a general balance to be determined.

5. The District Judge had not investigated those matters because the section 29(5) argument was not before her. Her existing findings indicated that some payments concerned materials and that another payment was personal assistance rather than part-payment of the alleged debt. Resolving the new ground would therefore require fresh evidence and would revisit disputed factual findings. The trial would almost certainly have been conducted differently had the point been raised below.

6. The claimant was ordered to pay the respondent’s costs of the appeal.

1. Court of Appeal (Civil Division): In Singh v Dass [2019] EWCA Civ 360, the court unanimously dismissed the appeal. It refused to permit the section 29(5) ground to be advanced for the first time and ordered the claimant to pay the respondent’s appeal costs.

2. Permission to appeal: Lewison LJ granted permission solely on whether post-termination payments might have caused fresh accrual under section 29(5) of the Limitation Act 1980. The respondent remained entitled to object that the point had not been raised below.

3. Birmingham County Court: District Judge Ingram determined a preliminary limitation issue. She found that the building contract ended on 23 November 2008 and dismissed the claim as statute-barred.