Lowe and another v W Machell Joinery Ltd [2011] EWCA Civ 794

The Appellant and Respondent had entered in to a contract for the sale of goods. The Appellant paid for the goods, but when they were delivered they took the view that the goods did not comply with the Respondent’s obligations under the contract. The goods were rejected, and the Appellant issued proceedings to recover the price of the goods. Shortly before trial, the Appellant introduced a new point as an additional justification for its rejection of the goods.

At first instance, the judge found that the Respondent was in breach of contract, but that the breach did not justify rejection of the goods. On appeal, the Appellant argued that the court could not hold that it was not entitled to reject the goods in a situation where the Respondent had been found to be in breach of contract.  

There was an issue on appeal as to whether the Appellant was entitled to rely on the implied terms in s.14 of the Sale of Goods Act 1979 on appeal. This point had been pleaded at first instance, but had not been relied on at trial.  

The majority of the Court of Appeal (Rix LJ dissented) held that the Appellant was entitled to rely on this point. It had been pleaded, and there was nothing to suggest that it had been abandoned. Such an abandonment would require either an express statement to that effect, or conduct at trial which was incompatible with reliance on the point in question.  

In reaching this conclusion, the Court considered various of the authorities on the issue of whether parties should be permitted to raise issues on appeal which were not raised at trial.