Dunya Dervis v Kenan Deniz

An appellate court should exercise caution before allowing a new claim or point to be raised for the first time on appeal. Permission should ordinarily be refused where the point would require further evidence, factual investigation, or a materially different trial. A point is not a pure point of law merely because the ultimate issue involves interpretation of written communications. The admissible factual matrix may be important to that interpretation. Where the proposed point is a distinct unpleaded claim, allowing it may require remittal for pleadings and a new trial, causing unfairness, expense and delay.

The appellant and respondent held a property as beneficial joint tenants under an express declaration of trust in a 2018 transfer. Following the breakdown of their relationship, the appellant brought proceedings seeking sole beneficial ownership and other relief. The County Court declared that the parties held the property as beneficial joint tenants, ordered its sale, dismissed the appellant’s unjust enrichment and credit-card claims, and made consequential costs orders.

The appellant sought to raise, for the first time on appeal, a claim that emails sent by the respondent in 2021 released his beneficial interest to her. Permission to appeal had been granted. The central issues were whether the Release Claim could be pursued on appeal and, if so, whether the emails constituted an effective disposition under the Law of Property Act 1925.

1. Appeal dismissed. The Release Claim was a new and distinct claim. It had not been pleaded, had not been advanced at trial, and had not been determined by the County Court. The judge’s limited discussion of the emails did not amount to a decision on the Release Claim.
2. The court applied the principles governing new points on appeal stated in Prudential Assurance Co Ltd v HMRC [2016] EWCA Civ 376, Singh v Dass [2019] EWCA Civ 360 and Notting Hill Finance Ltd v Sheikh [2019] EWCA Civ 1337. An appellate court should be cautious. Permission will generally be refused where the proposed point requires new evidence or would have caused the trial to proceed differently. Even for a pure point of law, adequate time, absence of detriment and protection in costs are relevant.
3. The Release Claim was not a pure point of law. Although subjective intention was inadmissible, interpretation had to proceed against the admissible factual matrix. The circumstances of the emails, including an unexamined telephone conversation, had not been investigated. If pleaded at trial, the claim would have materially altered the evidence and submissions.
4. The critical emails were materially less clear than those considered in Hudson v Hathway [2022] EWCA Civ 1648. Questions arose as to whether references to removal from the mortgage, signing documents, and seeking no financial interest amounted objectively to an immediate release of an existing beneficial interest.
5. Allowing the claim would have prejudiced the respondent and required pleadings, directions and a further trial, effectively giving the appellant a second attempt at the action. It was therefore neither appropriate nor just to permit the claim. The court did not determine the substantive release issue.
6. The express declaration of trust in the 2018 transfer remained binding, and the County Court’s order, including the declaration of joint beneficial ownership and sale directions, stood.

• High Court, Chancery Appeals: On appeal from the County Court at Central London order of 2 February 2024, the appeal was dismissed.
• County Court at Central London: His Honour Judge Gerald declared that the parties held the property on trust as beneficial joint tenants, ordered its sale, dismissed the relevant additional claims, and made costs orders.