Times Travel (UK) Limited & Anor. v Pakistan International Airlines Corporation

An appellate court should be cautious before permitting a party to raise a point not taken at trial. Permission will generally be refused where the point requires fresh evidence, further factual inquiry, or would have changed the conduct of the trial. Finality carries particular weight after a full trial, although there is no universal requirement that the case be exceptional: [2019] EWCA Civ 1337. A pure point of law may be admitted where the opposing party has adequate time to meet it, has not relied to its detriment on the omission, and can be protected in costs. Where existing documents cannot establish the alleged error or quantify its consequences, the appeal court should not reopen the account.

Times Travel (UK) Limited and Nottingham Travel Limited, acting as travel agents for Pakistan International Airlines Corporation, obtained orders for an account of unpaid remuneration and commission. The appellant was debarred from defending the account after failing to provide compliant spreadsheets, and the Deputy High Court Judge entered judgment for specified sums: [2020] EWHC 2600 (Ch).

After the order had been perfected, PIA argued on appeal that the calculations wrongly included tax. Establishing and quantifying that contention would require fresh evidence and further factual inquiry. The central issue was whether the Court of Appeal should permit the new point and reopen the account.

Appeal dismissed. Newey LJ delivered the leading judgment, with which Arnold and Birss LJJ agreed.

1. The court has a discretion whether to permit a point not raised below, but must approach the application cautiously. The relevant considerations include the nature of the lower-court proceedings, the nature of the new point and prejudice to the opposing party. A point will generally be refused where it requires new evidence or would have caused the trial to be conducted differently. There is no universal requirement that the case be exceptional.
2. The authorities also identify a more favourable approach to a pure point of law which can be decided on facts already found. Even then, the opposing party must have adequate time to meet the argument, must not have acted to its detriment on the basis of the omission, and must be adequately protected in costs. That branch of the guidance did not assist PIA because its proposed point required factual investigation.
3. The existing BSP documents did not establish whether the calculations had used tax-inclusive figures or show how any correction should be made. The evidence did not disclose whether fees or fuel surcharges were included in the relevant columns. PIA could not therefore establish either the alleged error or the amount of any overpayment without fresh evidence.
4. Allowing the point would have required a remittal, a new hearing and the retaking of the account on a different basis. PIA had failed to raise the issue at trial, despite having the opportunity to do so, and its default had contributed to its inability to defend the account. The Court of Appeal accordingly declined permission to raise the new point and dismissed the appeal.

• Court of Appeal (Civil Division): Dismissed PIA’s appeal and refused permission to raise the new tax-related point, [2022] EWCA Civ 415.
• High Court of Justice, Business and Property Courts, Chancery Division: The Deputy High Court Judge determined the account and entered judgment for TT and NT, [2020] EWHC 2600 (Ch).