Summary hearing – raising new points on appeal
 EWCA Civ 1337
The Court of Appeal considered the circumstances in which a point not raised during a summary possession hearing could be raised for the first time on appeal
The Claimant had the benefit of a secured loan against the Defendant’s property. The Defendant failed to repay the loan and accordingly the Claimant issued possession proceedings. At the first summary hearing, the Defendant attended and was represented by the duty solicitor. The Defendant did not raise any question about whether the default interest rate under the loan of 289.6% was a penalty and unenforceable.
The first appeal was heard by a Circuit Judge in the County Court. The Circuit Judge held, relying on Jones v MBNA International Bank Limited  EWCA Civ 314, that whilst an appellate court could entertain a point not taken below, the circumstances in which it would do so would be unusual if not exceptional.
However, it was held that the facts of the instant case were exceptional. This was a summary hearing which took place over only seven minutes, at which the Defendant was effectively a litigant in person. The Claimant had accepted that, had the interest rate issue been raised at the hearing, the judge would have given directions for that issue to be determined at a trial.
Accordingly, the Circuit Judge held that i) the Defendant was entitled to raise the interest rate point on appeal; and ii) the failure to identify the points at first instance amounted to a serious procedural irregularity below which justified allowing the appeal.
The issue for the Court of Appeal was whether, having failed to take any point on the interest rate at the possession hearing, the Defendant was able to raise the point for the first time on appeal?
Decision on appeal
The Claimant was granted permission to appeal to the Court of Appeal on the issue of whether there had been a serious procedural irregularity in the lower court, and whether the Defendant should have been permitted to raise the interest rate point for the first time on appeal. There was an important point of principle relating to unrepresented litigants in lower courts.
The Claimant’s case was that the Circuit Judge was wrong to hold that the case was exceptional – the failure by a defendant in a Part 55 claim to prepare or advance a defence at the summary hearing was “entirely routine”. Secondly, there was no serious procedural irregularity – the District Judge could not be expected to take the interest rate point of his own motion and the Defendant could not rely on his own failure to advance his case as an irregularity justifying the judgment being overturned.
The Court of Appeal pointed out that, in fact, the most authoritative and frequently applied statement of the approach of an appellate court to new points was to be found not in Jones v MBNA International Bank Limited  EWCA Civ 314, but in Pittalis v Grant  QB 605, in which it was held that new pure points of law would be allowed where the court could be certain that the other party:
- Has had adequate opportunity to deal with the point;
- Has not acted to his detriment on the omission to raise the point; and
- Can be adequately protected in costs.
Therefore, there is no general requirement for exceptionality and, whilst a court will be cautious before allowing a new point to be raised on appeal, the decision to do so will be based on an analysis of all the relevant factors, including the nature of the proceedings, the nature of the new point and the prejudice that will be caused by the new point being raised.
Clearly, where there has been a full trial involving live evidence, and the new point might have changed how the trial had been conducted, the finality of litigation was an important factor and exceptionality would be required.
However, where, as here, the hearing was not a trial (see Forcelux v Binnie  EWCA Civ 854) and where, as here, the factual enquiry would have been put off to a later hearing had it been raised, the concern that the raising of a new point would subvert the evidential process that had already taken place simply did not exist.
It was important also that the Defendant had acted quickly to raise the point after the hearing, so the Claimant had not relied on the omission to raise it, and that very little time and resources had been committed to the case by the parties and the court.
However, the Court of Appeal made it clear that the fact that the Defendant was effectively a litigant in person carried very little weight – the rules of court apply equally to represented and unrepresented parties.
As to whether there had been a serious procedural irregularity due to the failure to identify the interest rate point, the Court of Appeal held that there was no need to consider the appeal in this way. Rather, the decision was simply “wrong” – with the benefit of the new argument, the appeal court could see that the decision of the lower court was not a decision that should have been made. Accordingly, the appeal ought to be allowed on that basis.
This decision is interesting for three reasons.
First, as the Claimant pointed out, it is very common that an unrepresented Defendant to a Part 55 claim will attend the first hearing without preparing any defence. However, the fact that he has not raised a point at the first summary hearing will not prevent him raising the new point on appeal, so long as he acts quickly.
Secondly, the Court of Appeal left open the question of the extent to which a District Judge might be under a duty to unrepresented litigants to raise points in their favour, and whether a failure to do so amounts to a serious procedural irregularity. However, in so doing, Mr Justice Snowden pointed out that the interest rate in this case should have “rung alarm-bells” for the District Judge, even in his busy list.
Thirdly, this is another decision that highlights the principle that the court will have little sympathy for litigants in person who fail to comply with the rules – the court’s rules apply to all litigants equally.
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