Asif Ali v Michelle Humphries
| Jurisdiction | England & Wales |
| Judge | Lady Justice Sharp |
| Judgment Date | 12 June 2014 |
| Neutral Citation | [2014] EWCA Civ 1138 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B5/2013/3633 |
| Date | 12 June 2014 |
[2014] EWCA Civ 1138
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
(DISTRICT JUDGE HOVINGTON)
Royal Courts of Justice
Strand
London, WC2
Lady Justice Sharp
B5/2013/3633
Mr J Stark (instructed by WTB Solicitors) appeared on behalf of the Applicant
The appellant renews her application for permission to appeal on Ground 2. Ground 2 is that the judge erred in making the decision that he did because the appellant was not in fact the tenant of the relevant property. Her tenancy agreement had been granted to her when she was under 18 and accordingly in the absence of a third party Trustee, the landlord held the tenancy on Trust for her.
It is perhaps somewhat surprising to see it being said that the judge made an error of law in this respect, since the suggestion formed no part of the appellant's case below, as Mr Stark readily acknowledges. It was this which lead Floyd LJ to refuse permission to appeal on this Ground on the papers.
Mr Stark accepts that Ground 2 raises an entirely new point and also that an appeal is a review, not a rehearing. He says however that this point goes to jurisdiction. No evidence could be given to contradict it and the issues which it gives rise to are ultimately narrow ones.
He refers me to certain observations of this court in Pittalis v Grant [1989] 1 QB 605, where the Court of Appeal set out the principles to be applied when it considers whether a point not taken below should be allowed to be pursued on appeal. He invites attention in particular to the citation in that case of observations by Sir George Jessel MR in Re Cowburn [1882] 19 Ch 419 at 429:
"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 could 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."
In Pittalis v Grant the court went on to say:
"Even if the point is a pure point of law, the appellate court retains a discretion to exclude it. Where we can be confident, first, that the other party has the opportunity to meet it, secondly, that he has not acted to his detriment on the face...
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