A point was raised for the first time on appeal.
Held: Though an appellate court could exclude a pure question of law which had not been raised at first instance from being raised on appeal, the usual practice was to allow it to be taken where the other party had had an opportunity of meeting it, had not acted to his detriment by reason of the earlier omission to take the point, and could be adequately compensated in costs.
Nourse LJ said: ‘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.’
Judges:
Nourse LJ
Citations:
[1989] QB 605
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – Ex parte Firth , In re Cowburn 1882
The court considered the practice where a point of law was raised first only on appeal: ‘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 . .
Cited – Macdougall v Knight 1889
Practice where an issue of law is raised for the first time on appeal. . .
Cited – The Tasmania 1890
The court described how to deal with issues of law raised only on appeal. Lord Herschell said: ‘My Lords, I think that a point such as this, not taken at the trial, and presented for the first time in the Court of Appeal, ought to be most jealously . .
Cited – Maunsell v Olins HL 1975
The House considered whether a sub-tenant could claim protection under the 1968 Act. This depended on the interpretation of the word ‘premises’ in the context of a sub-tenancy of a cottage on a farm let under an agricultural tenancy.
Held: . .
Cited by:
Cited – King v Jackson (T/a Jackson Flower Company) CA 16-Jul-1997
The defendant appealed an award of pounds 11,000 damages for unlawful eviction of his tenant. The tenant had found herself unable to pay the rent and had given notice to quit. She was then told to leave immediately. The judge awarded statutory . .
Cited – Earl Cadogan, Cadogan Estates Limited v Search Guarantees Plc CA 27-Jul-2004
The tenant of a house had subdivided it and let off the flats. He sought to acquire the freehold.
Held: Where none of the subtenants themselves had qualifying leases, the head tenant could be in sufficient occupation to be able to buy the . .
Not Followed – Wellcome Trust Ltd v Hamad; Ebied and Another v Hopkins and Another; Church Commissioners for England v Baines CA 30-Jul-1997
There was a tenancy for mixed residential and business purposes and, with the landlord’s permission, the tenant sublet one of the residential flats within the premises to the defendant, who enjoyed protection under the Act of 1977.
Held: . .
Cited – Desnousse v London Borough of Newham and others CA 17-May-2006
The occupier had been granted a temporary licence by the authority under the homelessness provisions whilst it made its assessment. The assessment concluded that she had become homeless intentionally, and therefore terminated the licence and set out . .
Cited – Crane (T/A Indigital Satelite Services) v Sky In-Home Ltd and Another CA 3-Jul-2008
Arden LJ considered the principles to be applied when considering whether a party to civil litigation should be allowed to appeal a trial judge’s decision on the basis that a claim, which could have been brought before him but was not, would have . .
Cited – Brown-Quinn and Another v Equity Syndicate Management Ltd and Another CA 12-Dec-2012
The court was asked as to the requirement for a client to be given free choice of a lawyer in the context of legal expenses insurance. The various claimants insured by the defendants had sought to instruct solicitors not on the respondent’s approved . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant
Updated: 26 July 2022; Ref: scu.196697