This article was first published on Lexis®PSL Dispute Resolution on 28 July 2017.
Dispute Resolution analysis: Colm Nugent, barrister at Hardwicke Chambers, explains why the appeal court will not readily countenance a complete change of case on an appeal when the claim or defence as advanced has been struck out, or summary judgment given.
Susan Elisabeth Wood v Days Healthcare UK Ltd and others  EWCA Civ 309
What was the background to this appeal?
The claimant was injured when (it is claimed) the chair riser—part of her NHS-supplied wheelchair—developed a fault. The riser was supplied as an extra at the claimant’s request, but was not considered necessary by the NHS trust. The claimant paid the additional costs of the riser herself. The claimant brought proceedings against the manufacturer and the relevant NHS trust (among others). The claim was advanced in a number of ways including breach of contract as against the rust. The trust initially had not denied the existence of a contractual relationship (with the claimant) but later applied to amend, to plead that defence. The trust expressly conceded that it had the power to make a contract, but argued they did not do so.
In refusing permission to amend, the judge at first instance found that there was a contractual relationship. The trust expressly disavowed any argument that they acted as the claimant’s agent.
How did the appellant seek to alter the case presented at first instance?
The trust appealed, and following change of counsel, sought to withdraw the concession that the trust had the power to make a contract with the claimant, therefore seeking to rely on matters (including statutory provisions) not advanced at first instance, nor drawn to the judge’s attention. These included a statutory prohibition against the NHS charging for certain services.
The appellant suggested that—notwithstanding the presentation in the court below—the appeal raised important issues of principal concerning breach of contract by the NHS in the provision of services to a patient.
What are the previous authorities where such applications have been considered?
The appellant relied on two authorities in support of their proposition that permission to rely upon new points on appeal would be readily given where the new point is one of law and calls for no further evidence:
• Crane trading as Indigital Satellite Services v Sky In-Home Limited & Anor  EWCA Civ 978
• The Prudential Assurance Company Ltd v HM Revenue & Customs  EWCA Civ 376,  All ER (D) 143 (Apr)
The Court of Appeal rejected that analysis of these decisions, citing Jones v MBNA International Bank  EWCA Civ 514,  Lexis Citation 3292 which limited the ability of parties to argue a new case on appeal to ‘exceptional cases’ (of which Jones was not such a case).
What factors did the Court of Appeal take into account, and what did it decide?
In a memorable phrase, the Court of Appeal said ‘…the case put forward by a party at first instance is not a dry run’. The appeal court will not readily countenance a complete change of case on an appeal when, as here, the claim or defence as advanced has been struck out, or summary judgment given.
In considering whether to grant permission only, the Court of Appeal noted CPR 52.21(1) which limited every appeal to the review of a decision of the lower court. The judge below, on the basis of concessions and submissions made, was not ‘arguably wrong’, and it was not the appellant’s case that the judge was wrong on the material before her. The NHS trust was seeking to recast its case, advancing a new case not argued before the judge below.
The Court of Appeal determined it was not in the interests of justice to permit the NHS to recast its claim in the way advanced before them.
The Court of Appeal did permit the second ground of appeal to proceed, in which the judge at first instance determined that there was ‘some injury’ resulting: a matter contested by the trust. The judge at first instance had expressly accepted that her finding ‘would not bind the trial judge’.
What are the key practical learning points for practitioners in terms of seeking permission to appeal where the nature and basis of their client’s case has changed?
This specific case was a permission hearing only and therefore not citable as authority. However, the key point is that the way in which the claim or defence is advanced in terms of arguments to be raised (or not) and concessions made (or not) is not a matter which the court (or the Court of Appeal) will readily permit any party to back away from.
In this case the NHS trust did not advance matters which, on the face of it, would have provided them with a strong defence to the claim. The courts will not permit a party to appeal a trial judge’s decision on the basis of matters which were not before that judge, even if they would have succeeded if they had been advanced at trial.
Per May LJ in Jones (above) at para :
‘It is not merely a matter of efficiency, expediency and cost, but of substantial justice. Parties to litigation are entitled to know where they stand.’
Colm Nugent has been involved in a number of recent High Court and appellate cases on behalf of claimants and defendants involving catastrophic injury and death, as well as appeals on procedural issues including costs and sanctions.
Interviewed by Kate Beaumont.
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