BAL v KNZ

An appeal court must address allegations and evidence that are material to the pleaded claim and the relief sought. A failure to determine material allegations may render the decision wrong, even where the judge has made some findings and has otherwise approached the evidence carefully. Fresh evidence on appeal remains subject to Ladd v Marshall principles, and evidence of changed circumstances should be admitted only sparingly. Where a material omission may have affected the outcome, the proper course may be to set aside the decision, preserve unaffected findings and order a new trial.

The claimant brought a claim under the Protection From Harassment Act 1997 and sought an injunction against the defendant. The County Court dismissed the claim, finding three incidents proved but concluding that they did not amount to a sufficiently connected course of conduct and that an injunction was not just and convenient.

Permission to appeal was granted on the grounds that the judge may not have addressed further allegations, social-media evidence and the possible involvement of the defendant’s family. The claimant also sought to adduce evidence of later events. The central issues were whether the fresh evidence should be admitted and whether the judge’s failure to address material allegations made the decision wrong.

1. Fresh evidence. Under CPR 52.21(2)(b), the appeal court will ordinarily not receive evidence that was not before the lower court. The principles in Ladd v Marshall remain relevant: the evidence should not reasonably have been obtainable for the trial, it should probably have an important influence on the result, and it should be apparently credible. Evidence of changed circumstances should be admitted sparingly. The claimant’s further evidence was refused because most could have been obtained earlier, and the later matters did not fall within the recognised exceptional categories.
2. Material omissions. The lower court’s findings on three incidents were not challenged. However, it failed to address allegations concerning incidents on 29 September 2021 and 3 March 2024. Those allegations formed part of the alleged pattern of harassment and raised potentially material issues concerning the defendant’s conduct with family members and alleged false police complaints. They were issues the judge had to determine or material considerations he had to take into account.
3. The omissions were material because findings in the claimant’s favour might have affected the assessment of the gravity and overall pattern of conduct, the social-media evidence, whether there was a course of conduct and whether an injunction was required. The decision was therefore wrong under CPR 52.21(3)(a).
4. The appeal was allowed. The order of HHJ Robinson was set aside under CPR 52.20(2)(a), save for the preserved findings on the three proved incidents. A new trial was ordered on the two omitted allegations under CPR 52.20(2)(c), consolidated with the claimant’s further County Court injunction application.

• High Court (King’s Bench Division): appeal from the County Court at Middlesbrough was allowed. The order dated 2 December 2024 was set aside, subject to preserved factual findings, and a new trial was ordered.
• County Court at Middlesbrough: HHJ Robinson dismissed the claimant’s harassment claim and injunction application on 2 December 2024.