In Blakeman v University Hospitals Of North Midlands NHS Trust [2026] EWHC 1089 (KB) ('Blakeman'), Wall J heard an appeal on 4 grounds, against 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.'
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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