Rehana Azhar v All Money Matters T/A TFC Home Loans

An appellate court deciding whether to permit a new point must ask whether the opposing party had fair warning and could deal with it properly, including through responsive evidence. The degree of novelty lies on a spectrum, but fairness is the overriding consideration.

A point presented as contractual interpretation may properly be refused where it would require fresh factual evaluation or evidence concerning matters such as waiver or estoppel. A later court should not interfere with that evaluative case-management decision merely because it might have decided differently. It must identify a material flaw in the reasoning or exercise of discretion.

A mortgage broker obtained a finance offer for the appellant and claimed a contractual arrangement fee. The Deputy District Judge entered judgment for the broker. Permission for a first appeal was limited to whether the absence of a confirmation-of-instructions letter meant that there was no qualifying finance offer.

HHJ Lethem held that this was a new point of which the broker had received insufficient warning. Its determination could require further documents, factual inquiry and evidence concerning waiver or estoppel. He refused to permit the point to be advanced. The Court of Appeal considered whether that evaluative case-management decision was wrong.

1. Appeal dismissed. HHJ Lethem was entitled to consider whether the permitted ground was a new point. The grant of permission to appeal did not prevent the respondent from objecting on that basis.

2. Elementary fairness requires each party to know the case it must meet. Statements of case define the issues, inform disclosure and evidence, and enable preparation for trial. A party wishing to advance a new case should ordinarily amend its statement of case. The appellant had neither pleaded the confirmation-of-instructions argument nor clearly identified it in her pre-trial skeleton argument.

3. The novelty of an appellate point lies on a spectrum. The overriding inquiry is whether the opposing party had fair warning and could deal with the point properly, with responsive evidence where appropriate. That inquiry must be conducted without hindsight. Although the point emerged during cross-examination and closing submissions, the respondent had not received fair warning before trial and had to address an unclear argument without suitable preparation.

4. Characterising contractual interpretation as a question of law did not make the point suitable for determination on appeal. The respondent might have relied on waiver or estoppel by convention had the issue been pleaded. The parties' submissions also demonstrated that fresh factual evaluation, and possibly further evidence, would be necessary. An appellate court may refuse a new legal point in those circumstances.

5. HHJ Lethem's decision was evaluative and concerned case management. An appellate court does not repeat the balancing exercise. It must identify a flaw such as defective logic, inconsistency, omission of a material factor, reliance on an irrelevant factor or a plainly wrongful exercise of discretion. No such flaw was shown. Lewison LJ gave the judgment, with which Nugee and Falk LJJ agreed.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld HHJ Lethem's refusal to permit the new point to be advanced.
2. Central London County Court, HHJ Lethem: The judge treated the permitted ground as a new point which had not been properly pleaded or tried and which could require further factual inquiry and evidence. He refused to allow it on the first appeal.
3. County Court, DDJ Arnold: Following a fast-track trial, judgment was entered for the mortgage broker on its claim for the arrangement fee.