Peter Demetriou v Mehmood Mapara & Ors.

A very late amendment to an appeal may be refused where it attacks an unchallenged part of the order, raises points not argued below, and leaves the respondent without adequate time to respond. The applicant bears a heavy burden and, where the application is effectively out of time, the three-stage Denton approach applies. In long-term burial-right deeds, a specific right reserved to the original cemetery owner may cease to govern once that owner is no longer involved. A general covenant requiring compliance with regulations may address unforeseen matters, but regulations cannot derogate from granted rights. Declarations should be framed cautiously and should ordinarily resolve the concrete dispute while leaving unnecessary questions open.

The High Court, on an appeal from the judgment of Ian Karet, sitting as a Deputy High Court Judge, made declarations concerning burial rights granted by deeds to trustees of an Islamic cemetery association. It held that the cemetery owner had not inherited his predecessor’s exclusive right to dig graves and could not insist on doing so under the regulations then in force. The owner appealed against the use of the word “areas” rather than “plots”. The trustees cross-appealed against the qualification limiting the declaration to the regulations existing at trial. Shortly before the hearing, the owner also sought to introduce a new proprietary argument based on the Law of Property Act 1925; permission to amend was refused.

The Court of Appeal, with Lord Justice Lewison giving the judgment and Lady Justice Macur and Lord Justice Dingemans agreeing, refused the late application to amend and dismissed both the appeal and the cross-appeal.

1. Late amendment. Under CPR 52.17, a party seeking a very late amendment bears a very heavy burden to show the strength of the new case and why justice requires permission. A new point of law will normally be admitted only where the respondent has had adequate time to deal with it, has not acted to their detriment in reliance on the omission, and can be protected in costs. The proposed amendment was effectively an application for permission to appeal against an unchallenged part of the order, made a year out of time, and raised new and difficult issues. The three-stage approach in Denton v TH White Ltd [2014] EWCA Civ 906 applied: the default was serious, there was no good reason, and the circumstances did not justify admission. The reappraisal by new counsel did not provide an adequate explanation or justify a late supplementary skeleton under PD 52C paragraph 32(3).
2. Construction and regulations. The deeds were intended to endure for centuries. The specific right to dig was reserved to Badgehurst, whereas the general covenant concerning regulations extended to successors in title. Once Badgehurst ceased to be involved, the specific provision had no further part to play. The general covenant allowed the cemetery owner to address unforeseen contingencies, but any regulations remained subject to the prohibition against derogation from grant. The judge was entitled to frame the declaration by reference to the regulations existing at trial and had made no appealable error in exercising his discretion over the form of declaration.
3. Questions left open. It was arguable that a grant of the right of burying bodies necessarily included a right to dig graves, subject to the rights reserved to Badgehurst. That question was not necessary to the decision and was left for any future case in which the validity of new regulations required determination. The court also left unresolved the position under the deed of 4 May 1985, which contained neither the exclusive digging right nor the covenant concerning regulations.
4. The distinction between “areas” and “plots” made no substantive difference on the evidence, and no practical benefit from amendment had been established. The appeal and cross-appeal were therefore both dismissed.

• Court of Appeal (Civil Division) — On 19 July 2022, refused permission to amend the grounds and dismissed the appeal and cross-appeal.
• High Court of Justice, Chancery Division — Ian Karet, sitting as a Deputy High Court Judge, made declarations concerning the burial rights and the cemetery regulations: [2021] EWHC 764 (Ch).