Update: see Kul v DWF Law LLP [2026] EWCA Civ 1130

In Blakeman v University Hospitals Of North Midlands NHS Trust [2026] EWHC 1089 (KB) ('Blakeman'), Wall J heard an appeal on 4 grounds, against a first instance decision, refusing the claimant/appellant permission to rely upon amended particulars of claim (in a medical negligence case). Ground 1 was that 'the Judge wrongly failed to consider allowing the application under s33 Limitation Act 1980' (paragraph 17). As to this, Wall J said, 

'The Judge did not consider whether he should allow the amendment under s33 Limitation Act. That is unsurprising. He was not asked to do so. Therefore, the appellant now seeks to advance a case on appeal which was not advanced before the judge at first instance.' (paragraph 18)

Wall J then said, at paragraph 19:

'In deciding whether to allow a point which was not argued at first instance to be argued on appeal, I must apply the principles in Singh -v- Dass [2019] EWCA Civ 360. The court should be cautious about letting a new point to be raised [16]. A new point should not be raised if it would necessitate new evidence or would have resulted in the case being run differently in the court below [17]. The court should only allow a new point of law to be raised if (a) the other party has had time to deal with the point, (b) the other party has not acted to its detriment on the faith of the earlier omission to raise it, and (c) the other party can be adequately protected in costs [18].'

Singh v Dass

In Singh v Dass [2019] EWCA Civ 360, Haddon-Cave LJ (with whom McCombe LJ and Moylan LJ agreed), under the heading 'Legal Framework' and subheading 'The legal principles', said, at paragraphs 15 to 18:

'The following legal principles apply where a party seeks to raise a new point on appeal which was not raised below.

First, an appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court.

Second, an appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial (Mullarkey v Broad [2009] EWCA Civ 2 at [30] and [49]).

Third, even where the point might be considered a 'pure point of law', the appellate court will only allow it to be raised if three criteria are satisfied: (a) the other party has had adequate time to deal with the point; (b) the other party has not acted to his detriment on the faith of the earlier omission to raise it; and (c) the other party can be adequately protected in costs. (R (on the application of Humphreys) v Parking and Traffic Appeals Service [2017] EWCA Civ 24; [2017] R.T.R. 22 at [29]).'

Rhine Shipping

There is a more recent authority however. In Rhine Shipping DMCC v Vitol SA [2024] EWCA Civ 580 [2025] 1 All ER (Comm) 97 ('Rhine Shipping'), Popplewell LJ (with whom Underhill LJ and Asplin LJ agreed), under the heading 'The principles applicable to new arguments raised for the first time on appeal' said, at paragraphs 23 to 28:

'The applicable principles were not in dispute. In Singh v Dass [2019] EWCA Civ 360 Haddon-Cave LJ summarised the guidance in the authorities which this court generally applies in deciding whether a new point may be advanced on appeal:

"16. First, an appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court.

17. Second, an appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial …

18. Third, even where the point might be considered a "pure point of law", the appellate court will only allow it to be raised if three criteria are satisfied: (a) the other party has had adequate time to deal with the point; (b) the other party has not acted to his detriment on the faith of the earlier omission to raise it; and (c) the other party can be adequately protected in costs."

There are aspects of such guidance which I would emphasise as of importance to the present case. First, the caution about allowing a point to be raised for the first time on appeal, irrespective of whether it affects the evidence or argument which would have been advanced at trial, reflects a policy both of fairness and of the efficient use of court resources which was encapsulated by May LJ in Jones v MBNA [2000] EWCA Civ 514 (unreported 30 June 2000) at [52]:

"Civil trials are conducted on the basis that the court decides the factual and legal issues which the parties bring before the court. Normally each party should bring before the court the whole relevant case that he wishes to advance. He may choose to confine his claim or defence to some only of the theoretical ways in which the case might be put. If he does so, the court will decide the issues which are raised and normally will not decide issues which are not raised. Normally a party cannot raise in subsequent proceedings claims or issues which could and should have been raised in the first proceedings. Equally, a party cannot, in my judgment, normally seek to appeal a trial judge's decision on the basis that a claim, which could have been brought before the trial judge, but was not, would have succeeded if it had been so brought. The justice of this as a general principle is, in my view, obvious. 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. The parties are entitled, and the court requires, to know what the issues are. Upon this depends a variety of decisions, including, by the parties, what evidence to call, how much effort and money it is appropriate to invest in the case, and generally how to conduct the case; and, by the court, what case management and administrative decisions and directions to make and give, and the substantive decisions in the case itself. Litigation should be resolved once and for all, and it is not, generally speaking, just if a party who successfully contested a case advanced on one basis should be expected to face on appeal, not a challenge to the original decision, but a new case advanced on a different basis. There may be exceptional cases in which the court would not apply the general principle which I have expressed. But in my view this is not such a case."

As Snowden LJ said in Notting Hill Finance Ltd v Sheikh [2019] EWCA Civ 1337 [2019] 4 WLR 146 at [26] (as Snowden J sitting in this court), there is no general rule that a case needs to be exceptional before a new point will be allowed to be taken on appeal. The court must examine each application on its own facts in the light of the guidance to be found in the authorities. Nevertheless the considerations of fairness and efficiency adverted to by May LJ remain factors to be taken into account.

Secondly, it will usually be fatal to the new point being permitted to be raised for the first time on an appeal if there is a real possibility that, had the point been taken at trial, evidence could have been adduced which might have affected the outcome. As Nourse LJ put it in Pittalis v Grant [1989] QB 605 at p. 611:

"The stance which an appellate court should take towards a point not raised at the trial is in general well settled: see Macdougall v Knight (1889) 14 App Cas 194 and The Tasmania (1890) 15 App Cas 223. It is perhaps best stated in Ex parte Firth, In re Cowburn (1882) 19 Ch D 419, 429, per Sir George Jessel MR: 'the rule is that, if a point was not taken before the tribunal which hears the evidence, and evidence could have been adduced which by any possibility would prevent the point from succeeding, it cannot be taken afterwards. You are bound to take the point in the first instance, so as to enable the other party to give evidence.'" (my emphasis)

The reference to the mere possibility of other evidence affecting the outcome of the point is also reflected in similar language in the classic dictum of Lord Herschell in The Tasmania at p. 225:

"It appears to me that under these circumstances a Court of Appeal ought only to decide in favour of an appellant on a ground there put forward for the first time, if it be satisfied beyond doubt, first, that it has before it all the facts bearing upon the new contention, as completely as would have been the case if the controversy had arisen at the trial; and next, that no satisfactory explanation could have been offered by those whose conduct is impugned if an opportunity for explanation had been afforded them when in the witness box." (my emphasis)

To similar effect is the judgment of Gibson LJ in Jones v MBNA at [38]. The court must be confident that there is no realistic possibility that had the point been raised below there would have been evidence which the other party could or would have adduced which might have had any possibility of affecting the outcome. Moreover where there has been no disclosure relevant to the new way in which the appellant seeks to put its case, the court cannot reasonably expect the other party to be specific about the evidence it would have adduced had the point been raised at the trial. As Arden LJ observed in Crane t/a Indigital Satelite Services v Sky In-Home Ltd [2008] EWCA Civ 978 at [21]:

"If there is any area of doubt, the benefit of it must be given to the party against whom the amendment [of the grounds of appeal] is sought. It is the party who should have raised the point at trial who should bear any risk of prejudice."

Thirdly, it will usually be fatal to the application if the new point requires findings of fact which the Judge has not made. The appellant may be able to point to evidence at the trial which would support a finding of fact which is necessary for the new point to succeed. But unless that evidence was expressly agreed, in the absence of a finding by the judge accepting that evidence, there will not ordinarily be the necessary evidential foundation for the new point to succeed.

Fourthly, even if there is evidence at the trial which is agreed or unchallenged, it will often be unfair to allow it to be relied on in support of a new point taken for the first time on appeal if it was not directed to the points then in issue and was not necessary or relevant to their resolution. In conducting litigation the parties can be expected to address the facts which matter for the way in which the claim has been framed, and indeed the overriding objective requires them to do so. As Lord Herschell put it in The Tasmania at p. 225:

"The conduct of a cause at the trial is governed by, and the questions asked of the witnesses are directed to, the points then suggested. And it is obvious that no care is exercised in the elucidation of facts not material to them."

Fifthly, care needs to be taken in interpreting answers given by a witness at trial when the appellant is seeking to rely on them for the new point. If the answers were given by reference to a different point in issue at the trial, there is a real risk of unfairness in assuming that they convey the same meaning by reference to the new point.

Speaking then of the facts in the Rhine Shipping, Popplewell LJ said, at paragraph 31:

'Some of Mr Berry's submissions illustrated this unfairness. He relied on evidence given by both Mr Smith and Ms Bossley that they had seen no evidence that Vitol externally hedged "this risk". The questions were asked, and the answers given, in relation to a specific external hedge of the pricing risks created first by the TOTSA contract itself and then by the effect of delay on the pricing risk, i.e. an equivalent external swap to that initially entered as a notional paper swap internally in portfolio 645 and then as entries for its rolling. The question and answers were not addressed to a book hedge of whatever the risk might have looked like at the end of a process of netting off within the Vista system, still less to a hypothetical hedging of a book risk which would have existed but for Rhine's breach. Mr Berry sought to treat this evidence as an admission that Vitol would not, in the counterfactual scenario, have left unhedged any book risk which was the oppositional equivalent to the pricing risk arising from the delay caused by Rhine. It was no such thing, and neither witness was addressing their mind to the question of what book hedge Vitol would have purchased in the counterfactual hypothesis of no breach. The answers they gave were not addressing that question.'

Mullarkey v Broad 

In Mullarkey v Broad (also known as Southill Finance Ltd (In Liquidation)) [2009] EWCA Civ 2, Lloyd LJ (with whom Moses LJ and Pill LJ agreed) agreed, said:

(a) at paragraph 30:

'The authority cited by Counsel in relation to the question whether a concession should be allowed to be withdrawn is Pittalis v. Grant [1989] 1 QB 605, in particular a passage in the judgment of Nourse LJ at page 611, as follows:

“The stance which an appellate court should take towards a point not raised at the trial is in general well settled: Macdougall v. Knight (1889) 14 App. Cas. 194 and The Tasmania (1890) 15 App. Cas. 223. It is perhaps best stated in Ex parte Firth, In re Cowburn (1882) 19 Ch.D. 419, 429, per Sir George Jessel M.R.:

“the rule is that, if a point was not taken before the tribunal which hears the evidence, and evidence could have been adduced which by any possibility would prevent the point from succeeding, it cannot be taken afterwards. You are bound to take the point in the first instance, so as to enable the other party to give evidence.”

Even if the point is a pure point of law, the appellate court retains a discretion to exclude it. But where we can be confident, first, that the other party has had opportunity enough to meet it, secondly, that he has not acted to his detriment on the faith of the earlier omission to raise it and, thirdly, that he can be adequately protected in costs, our usual practice is to allow a pure point of law not raised below to be taken in this court. Otherwise, in the name of doing justice to the other party, we might, through visiting the sins of the adviser on the client, do an injustice to the party who seeks to raise it.”'

(b) at paragraph 49:

'A party who seeks to advance a different case, in circumstances such as this, bears a heavy burden as regards showing that the case could not have been conducted differently, in any material respect, as regards the evidence. In a case such as Pittalis v Grant, that task could readily be discharged, since there was no doubt about the relevant facts and the dispute was as to a matter of law. In the present case the change of position would not be so great as it was in Jones v MBNA. But in my judgment the court cannot properly be satisfied, in this instance, that the case would not have gone in a materially different way as regards the evidence if Mr Brockman, instead of nailing his colours exclusively to the mast of fraud, had told the judge that he had two alternative cases: one of fraud and the other of breach of fiduciary duty by Mr Broad in procuring a prohibited loan to himself. It is clear that some questions would have been asked in cross-examination of Mr Broad in addition to those which Mr Goodman did ask. Whether the answers would have influenced the judge, and if so how, is a matter of speculation. It is particularly difficult to be sure of that given, on the one hand, the fact that the parties were, for most of the trial, in person and, on the other, the resulting burden on the judge of ensuring that he and the parties understood exactly how the case was being put and that they appreciated what matters of evidence might need to be covered as a result.'

Humphreys

In R. (on the application of Humphreys) v Parking and Traffic Appeals Service [2017] EWCA Civ 24; [2017] RTR 22, Beatson LJ (with whom Briggs LJ and, on this point - see paragraph 72 - McCombe LJ agreed) said, at paragraph 29:

'It is...clear from the authorities that, where submissions which could have been made at first instance but were not, if allowing them on appeal would not require further factual findings on areas not covered by the judgment below, and where the point which had not been raised at first instance is a pure question of law, although the appellate court retains a discretion to exclude it, provided three conditions are met, the usual practice of this court is to allow the point to be taken: see Pittalis v Grant [1989] Q.B. 605 and Crane (t/a Indigital Satellite Services) v Sky In-Home Ltd [2008] EWCA Civ 978 at [23]. The three conditions stated by Nourse LJ in Pittalis v Grant are that the other party: (a) has had adequate opportunity to deal with the point; (b) has not acted to his detriment on the faith of the earlier omission to raise it; and (c) can be adequately protected in costs.'

Update 

In Kul v DWF Law LLP [2026] EWCA Civ 1130, some claimants/appellants sought to advance a new unpleaded case (strictly, a new new case). Warby LJ (with whom Asplin LJ and Newey LJ agreed), explained the case and position, at paragraphs 1 and 2:

'The appellants made claims for damages for personal injury resulting from road traffic accidents (RTAs). The respondent solicitors (DWF), who acted for the defendants to those claims, used information about them in other personal injury litigation, to support a contention that the claims in the other litigation were fundamentally dishonest. The appellants brought this action against DWF, claiming that such use infringed their data protection rights. They did not seek compensation but only declaratory remedies and compliance orders under the Data Protection Act (DPA) 2018. The claims were dismissed after a trial by Eady J (the Judge), who found that DWF's processing of the appellants' personal data was lawful, fair, and compliant with the other data protection principles relied on. At the hearing of this appeal the appellants argued that (a) the Judge erred in law in her approach to proportionality; (b) she should have (i) held that processing their personal data without pseudonymising them would be disproportionate and for that reason a breach of the UK GDPR, (ii) found that DWF might engage in such processing in future, and (iii) granted declarations that this would be unlawful.

I would dismiss the appeal. My detailed reasons follow but can be summarised as follows. This is a new, unpleaded case. It was advanced for the first time at the hearing of the appeal. Legally and factually, it is inconsistent with the position adopted by the appellants before the court below. The appellants need the court's permission and relief from sanctions to change their position at this late stage. Assuming the court has jurisdiction to allow this, I can see no good reason for doing so. It would be prejudicial to DWF, and to the interests of justice more generally. The merits of the new case do not outweigh that prejudice. Most fundamentally, I do not consider that the factual propositions on which the new case is based are arguable. There is no evidence of the alleged risk. The material before us suggests that if there ever was any such risk it had evaporated before this action was started. In any event, this action would not be a suitable vehicle for dealing with any such risk.' [bold added]

Later, under the heading 'Assessment' and subheading 'The appellants' case on appeal', Warby LJ said, at paragraphs 44 to 46:

'The claims advanced in this action have fluctuated and mutated over time. They changed more than once during this appeal. By the end of the hearing before us, the only contention that was being advanced on behalf of these three appellants was that the Judge erred by failing to find a risk that DWF would in future process their personal data in the form of a version of JS1 that was not pseudonymised, that this would be disproportionate and otherwise contrary to the UK GDPR and DPA 2018, and that declarations should be made accordingly.

This is another new way of putting the case – as one might say, a new, new case. There has never been any written statement of a claim for the declarations now sought. No such claim was pleaded in the Amended Particulars of Claim. The new claim lies beyond the parameters of the case as "crystallised" and presented to the Judge by junior Counsel previously instructed by the appellants. The new claim falls outside the scope of the relief sought in the appellants' notice. It is not covered by the grant of permission to appeal. It is not a claim advanced in the replacement skeleton argument for the appeal. To make good their new case the appellants rely not only on a new proposition of law which is contrary to the agreed position before the Judge but also on factual propositions that were advanced in the claim form but abandoned in the Particulars of Claim, and which were not the subject of debate at the trial. The contention that there is a risk of future processing without pseudonymisation is directly contrary to the facts as found by the Judge. The position adopted by [counsel for the appellants] at the hearing is not the same as the second ground of appeal, but it is hard to reconcile with the abandonment of that ground.

In these circumstances. as it seems to me, there are at least three conditions precedent to any determination by this court of the substantive merits of the appellants' new, new case. The appellants require permission to amend their Particulars of Claim after judgment, they require permission to amend their Grounds of Appeal, and they need to persuade us that we should allow them to take a new point on appeal.'

Under the subheading 'Principles', Warby LJ said, at paragraphs 47 to 51:

'The jurisdiction of an appeal court is "constrained by what is in the grounds of appeal and in the grant of permission": Gover v Propertycare Ltd [2006] EWCA Civ 340, [2006] 4 All ER 69 [10] (Buxton LJ). A substantive change of position requires amendment of the grounds of appeal. That may not be done without the permission of the appeal court: CPR 52.17 and, in the Court of Appeal, PD 52C para 30. An application for permission to amend should be made. The right approach to such an application, where it is made outside the time limit for appealing, was considered by this court in Lighting and Lamps UK Ltd v Clarke [2016] EWCA Civ 5. Vos LJ (as he then was) rejected a submission that the first step was to apply the principles relating to relief from sanctions by analogy (Denton v TH White [2014] EWCA Civ 906 [2014] 1 WLR 3926; R (Hysaj) v Secretary of State for the Home Department [2015] 1 WLR 2472). Vos LJ held that the court should first apply the principles governing late amendments and then address the Denton principles, as appropriate. Sir James Munby, P and Theis J agreed.

Parties seeking to amend their statements of case at a late stage face a heavy burden. The principles are identified in the judgment of Carr J, as she then was, in Quah v Goldman Sachs International [2015] EWHC 759 (Comm) [38], which has often been cited and applied. The financial impact on the opposing party of allowing the amendment remains a factor for consideration. But it is no longer the rule that costs, if they can be paid, are a sufficient compensation. The party seeking to amend will be expected to formulate the amendment and provide a good explanation of why it was not advanced earlier. They will need to persuade the court that the strength of their case is such as to eclipse or at least outweigh the interests of other parties to the litigation. The interests of court users generally, and the need to allocate fairly the limited resources of the court, are also material factors: see also CPR 1.1(2)(e) and Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 WLR 795. As Sir Geoffrey Vos MR observed in Nesbit Law Group LLP v Acasta European Insurance Co Ltd [2018] EWCA Civ 268 [41], these principles apply with "even greater rigour" to an amendment sought "after the trial and in the course of an appeal." The Denton principles are well known and need not be rehearsed here.

The approach an appellate court should take towards a new point raised for the first time on appeal has been considered on several occasions. A recent example is Vince v Tice [2026] EWCA Civ 844. In that case, as here, the appellant sought to raise on appeal a new point which would require permission for an amendment to the pleadings which had not been sought at first instance. The first question that arose was whether a decision can be said to be "wrong" within the meaning of CPR 52.1(3) because it did not address and find in favour of the appellant on a point of this kind. In a judgment with which Lewison and Coulson LJJ agreed I saw some force in the respondent's argument that the court has no jurisdiction to allow an appeal on such a ground: see [56], [58]. It was not necessary to decide the point. At [56] and [59] I summarised the approach where the court does have jurisdiction to allow the new point to be taken, drawing on Notting Hill Finance Ltd v Sheikh [2019] EWCA Civ 1337, [2019] 4 WLR 146 [26] (Snowden J, as he then was), and Prudential Assurance Co Ltd v Revenue and Customs Commrs. [2016] EWCA Civ 376, [2017] 1 WLR 4031 [25] (Lewison LJ). I said this:

56 ... the court has a discretion to permit a party to advance a new case on appeal, if that is the just thing to do having regard to "an analysis of all the relevant factors"....

59 ... "an appellate court will always be cautious before allowing a new point to be taken". Among the factors to be considered are the nature of the proceedings which have taken place in the lower court, the nature of the new point, and any prejudice that would be caused to the opposing party if the new point is allowed to be taken. The court will rarely allow a new point to be taken where it would require further findings of fact, and will in any event expect "a cogent explanation of the omission to take the point below".

50. Another well-known statement of the principles is to be found in Singh v Dass [2019] EWCA Civ 360. Having first referred to the general rule of caution to which I have referred, Haddon-Cave LJ (with whom McCombe and Moylan LJJ agreed) went on:

17. Second, an appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial.

18. Third, even where the point might be considered a 'pure point of law', the appellate court will only allow it to be raised if three criteria are satisfied: (a) the other party has had adequate time to deal with the point; (b) the other party has not acted to his detriment on the faith of the earlier omission to raise it; and (c) the other party can be adequately protected in costs.

In Demetriou v Mopara [2022] EWCA Civ 1001 this court, applying Lighting and Lamps UK Ltd v Clarke, refused an application made at the outset of the appeal for permission to amend the grounds of appeal to raise a new point by way of appeal, against a paragraph of the order below that had not previously been challenged. Here, the appellants go further, relying on a new point of law and a new factual case to seek relief which was not claimed in the proceedings below.'

Under the subheading 'Submissions', Warby LJ said, at paragraph 52:

'In his oral submissions [counsel for the appellants] addressed, at the court's request, the question of whether the appellants should be permitted to rely on Lumsdon. He accepted that this was a new point but argued that the ground of appeal for which permission was given raised a point of law resulting from the application to the case of fresh eyes. No application was made for permission to amend the appellants' statement of case or their grounds of appeal. No draft Re-Amended Particulars of Claim were presented to us, nor were any draft Amended Grounds of Appeal provided. [Counsel for the respondents] referred us to Singh v Dass and urged caution. He addressed the legal merits of the argument based on Lumsdon and the question of whether it would yield a different outcome if, contrary to his submissions, it applied to this case. He reiterated the points he had made in his original skeleton argument about the alleged risk of future use of JS1 without pseudonymisation.'

Under the subheading 'Conclusions and reasons', Warby LJ said, at paragraph 53: 

'I would refuse to entertain the new points on appeal, and I would have refused the applications which were not made, for permission to amend the grounds of appeal and to re-amend the Particulars of Claim.'

Under the subheading 'New points on appeal', Warby LJ said, at paragraphs 54 to 57: 

'Since Vince v Tice, I have become aware of a decision not cited in that case that may have some bearing on the first question we then addressed. In Islington London Borough Council v Uckac [2006] 1 WLR 1303 [36]-[41], this court gave the claimant permission to re-amend by adding a point not raised in the court below. I still see some force in the proposition that a decision cannot be criticised as "wrong" within the meaning of CPR 52.21(3) on the grounds that it failed to grant a remedy that was not being claimed at that time. However, the point was not argued before us and, as in Vince v Tice, it is unnecessary to decide it. Assuming we have a discretion to entertain the appellants' new, new case, the application of the principles I have identified leads me to the clear conclusion that we would be wrong to do so.

The proceedings in the court below were entirely focused on whether, in the past, DWF had processed the appellants' personal data by including them in the Spreadsheet, and in JS1, and disclosing that document to others. Considerable resources were devoted to that question, including not just the two-day trial but all the preparation work that went into that trial. No effort was devoted to examining whether there was a risk of future use of JS1 without pseudonymisation. It was taken as read, and the Judge plainly considered, that the effect of the March 2023 Order was that there was no prospect of such future use.

The second ground of appeal appears to have invited a departure from that common factual assumption. On one interpretation, ground 2 covered some of the territory that was later occupied by the new, new claim. But, in the knowledge of DWF's argument that it was ill-founded, the second ground of appeal was expressly abandoned. The written argument that was then pursued was, predominantly at least, about what had happened in the past. There was no statement, or no clear statement, of any complaint about what might happen in future. There certainly was no claim for any relief restraining future processing of the Spreadsheet, nor for any declaration that this would be unlawful if it took place.

What happened at the hearing was, in terms of the remedies sought, an about turn. In my judgment, that was in and of itself unfair to DWF, regardless of any costs implications. But it does have costs implications. A claim for relief based on a future risk would require us to set aside the Judge's uncontested conclusion on that point and to undertake, or direct, a fresh factual evaluation. Allied to this is the fact that the new claim rests on a new point of law which is also contrary to the position agreed at the trial. At the hearing we enquired whether the appellants were in a position to cover the additional costs incurred as a result of the changes in their position. This was not confirmed. The only explanation offered for any of this is the one I have mentioned: that the Lumsdon point was taken because new Counsel brought fresh eyes to the case. I do not think that is a good enough reason. I would echo the words of Lewison LJ in Demetriou v Mopara [22]: "I do not regard a change of counsel as itself being a good reason for the delay in seeking to amend. The short point is that [the appellant] sought to raise a new point which his previous legal team had not thought of…"'

Under the subheading 'Amendment', Warby LJ said, at paragraphs 58 to 61: 

'The next question, though academic, is whether, applying the principles identified above, permission should be granted to amend the Grounds of Appeal and Particulars of Claim. This raises considerations which overlap with but go beyond those with which I have already dealt. My reasons for concluding that permission to amend ought not to be granted are, briefly, these.

No good explanation has been provided for not taking the point earlier. The amendments have never been formulated in writing, and when the new case was put forward it was framed in a variety of ways. It is clear, though, that the amendments would be prejudicial to DWF in the ways I have outlined. The new, new case is by no means legally strong. In Cooper, the Court of Appeal rejected a challenge to the application in the data protection context of a test of "reasonable necessity". On its face, Cooper is binding authority for the test applied by the Judge. That test has been applied in many other data protection cases before and since. The assertion that Cooper was decided without reference to South Lanarkshire is incorrect. The decision in that case was considered in Cooper in some detail: see the judgment of Sales LJ at [90]-[92]. In South Lanarkshire, the Supreme Court addressed the European case law on proportionality. I do not detect an inconsistency between South Lanarkshire and Cooper. For these and other reasons, I am not at all convinced that the application of the Lumsdon principle would be likely to lead to a different conclusion on the issue of proportionality in this case. I also think it open to doubt that we have jurisdiction, in this data protection claim, to grant the declaratory relief claimed: see the discussion in Aven v Orbis Business Intelligence Ltd [2020] EWHC 1812 (QB) [191].

Most compellingly of all, the appellants' factual case for claiming relief in respect of future risk is, in my judgment, unsustainable. The submission that the outcome of the 2023 Order was no more than pseudonymisation for the five claims then before HHJ Backhouse is at odds with the record. The clear intention of the order was to resolve that issue for good, in all the claims. In her judgment after the trial of these claims, the Judge held that "once the issue of admissibility had been resolved, and the Ersan claims returned to the County Court, the defendant offered to pseudonymise the data contained within JS1 for all future purposes (something that was done before the present proceedings commenced)" (emphasis added). In response to the submissions made for the appellants at the hearing before us, [counsel for the respondents] assured us, on instructions, that this is in fact the position: as from the date of the March 2023 Order, it is only the pseudonymised version of the Spreadsheet that is being relied on. I have seen no good reason to doubt that is so. I can see no tenable basis for fearing, or asserting, the existence of a risk that absent a declaration of rights DWF would use JS1 without pseudonymisation.

Even if that were wrong, and there was any real room for concern, at any time after the March 2023 Order, that DWF might further process JS1 without pseudonymisation, the appropriate first step would have been to raise the matter in correspondence and seek assurances. Only in the absence of a satisfactory response would it have been appropriate to take any formal step. The appropriate legal remedy, if any, would have been an application to the County Court in respect of the Disputed Claims. It would not have been appropriate to raise the matter by way of a fresh High Court action such as this, still less by taking a new point on an appeal heard more than three years after the making of the March 2023 Order.' [bold added]

Under the subheading 'The Denton principles', Warby LJ said, at paragraphs 62:  

'For good measure, I shall state my conclusions on this aspect of the matter. The default is plainly serious and significant, for reasons I have already stated. There is no application for relief from sanctions nor is there any evidence in support. No good reason has been put forward for not raising the point until this very late stage. The relevant circumstances include the prejudicial impact that taking the new, new point at this stage would have, and its merits. They also include the overall lack of procedural rigour and efficiency on the appellants' side and the fact that, due to a generous exercise of discretion on the part of the trial Judge, they have already had the benefit of one late, unpleaded amendment. Those are matters relevant to factors (a) and (b) in CPR 3.9(1). Taken in the round, the circumstances point unequivocally in favour of refusing an extension of time for raising the new, new claim on this appeal.'[1]

Collatory Case Series

The Collatory Case Series, is an series of bulletins, designed to report that one case which collates the essential principles/propositions of law, for a particular doctrine/area of law (and perhaps, sometimes, provide a few extra citations/quotations etc.). It is not designed as a deep and comprehensive review of an area of law, but to provide that quick 'go to' case.

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Simon Hill practices in the following areas: insolvency, company and business law, with some tax and property law.

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