COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LORD JUSTICE DYSON
| CRANE T/A INDIGITAL SATELITE SERVICES
|- and -
|SKY IN-HOME LIMITED & ANR.
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Jasbir Dhillon (instructed by Herbert Smith LLP) for the Respondent
Hearing dates : 2/3 July 2008
Crown Copyright ©
Lady Justice Arden :
"13] It will be immediately apparent that COPA contains express terms negating the creation of any agency of Mr Crane for the sale of Sky+ boxes, and cl 5.2 required any authority of Mr Crane to do anything on behalf of SHS to be in writing. Mr Crane's case, to the extent that it was pursued in closing, was that notwithstanding those terms, he later obtained such written authority in the form of a series of 'special offer' letters written to him and other ASAs by BSB between July and December 2004, and that his authority in relation to Sky+ boxes is in some way evidentially fortified by the fact that one of the distributors from which he sought to acquire Sky+ boxes was under instructions from the Sky Group only to sell them to ASAs."
"The judge should have considered all the relevant facts including that:
a. The appellant was the agent of the respondent under the law of England and Wales for the promotion, sale, supply and installation of Sky television services in all respects save for the supply of Sky + equipment.
b. The appellant was a self-employed intermediary with continuing authority from the respondent to negotiate the supply of sky + equipment; further or alternatively
c. The respondent prevented the appellant in law firm further or alternatively in practice for dealing with the consumer freely in the supply of Sky + equipment alternatively it restricted such freedom to a considerable degree; further or alternatively
d. There would be no reason for the customer to believe that the appellant was acting in a different capacity when supplying sky + equipment to that customer when he would otherwise acted on behalf of the respondent and the promotion, sale and installation of Sky television services
and having taken into account the protective stance of the regulations of the learned judge should have concluded that the appellant was the commercial agent of the respondent in the supply of Sky + equipment. "
" Heron J found as a fact that the procedure for amendment laid down by cl 11.2 had not been followed. The Court of Appeal upheld this finding of fact, thereby creating concurrent findings with which the Board will not interfere. Their Lordships also agree with the Court of Appeal that the proviso in cl 11.1 by which the absence of consultation is not to invalidate any action taken by the Meat Board had no application to amendments under cl 11.2. It follows that cl 8.3.2 was not validly amended.
 But the question of whether the Meat Board was in principle liable under the unamended cl 8.3.2 was not raised before the Court of Appeal. More than that, Keith J noted that the Meat Board acknowledged that, if cl 8.3.2 had not been amended, it had been in breach of its terms. Mr Carruthers QC, who appeared for the Meat Board, said that he did not make this concession but there is no trace of any contrary argument advanced to the Court of Appeal and it therefore seems to their Lordships that the Court of Appeal was entitled to treat the point as uncontested.
 In these circumstances the question is whether the Meat Board should be allowed to withdraw the concession. Mr Cooke says that this would be unjust. The case was fought on the assumption that if the Council had made a request for quota allocation in breach of cl 8.3.2, the Meat Board would be liable for complying with it. If it had been known that this was in issue, the plaintiffs could have adduced evidence of surrounding circumstances to show that the agreement should be construed as having this meaning.
 Their Lordships consider that the plaintiffs cannot complain of being misled about the evidence they would need to adduce at the trial. On the pleadings, the whole question of contractual liability and the construction of the agreement was in issue. It would have been open to the Meat Board, without any amendment of the pleadings, to put before Heron J the argument upon which it now relies. In any case, the surrounding circumstances were exhaustively explored at the trial and their Lordships are unable to imagine what facts could be unearthed which would lead to the conclusion that the Meat Board was assuming a contractual liability for the way it exercised its statutory power to allocate quota. Mr Cooke did not suggest any. The position in relation to this point is therefore quite different from the point about the separate identities of Ronnick and Paramount.
 It therefore appears to their Lordships that despite the fact that the true construction of the contract was not argued before the judge, the plaintiffs could not have complained of prejudice if the point had been taken before the Court of Appeal. It was a question of law on which no further evidence could have been called. The position is the same before their Lordships' Board. It is no doubt very disappointing for the plaintiffs, having succeeded in the courts below, to lose on a new point in the final court. On the other hand, it would be a miscarriage of justice if the Meat Board were required to pay some $7m out of public funds when it had no legal liability to do so, merely on account of the way its advisers had conducted the litigation. Mr Cooke referred their Lordships to a recent observation of Lord Bingham of Cornhill in Grobbelaar v News Group Newspapers Ltd  UKHL 40,  1 WLR 3024, 3034, para 21:
"Only rarely and with extreme caution will the House permit counsel to withdraw from a concession which has formed the basis of argument and judgment in the Court of Appeal."
 That is a sound policy and in deciding to allow the concession to be withdrawn, their Lordships hope they have displayed the same caution as the House did in Grobbelaar's case. If there were any possibility that the outcome could have been affected if the point had been taken earlier, that would of course have been an entirely different matter. But their Lordships consider that in this case the plaintiffs can be adequately compensated by a suitable order for costs."
"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."
"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 scrutinised. 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.
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."
"38. It is not in dispute that to withdraw a concession or take a point not argued in the lower court requires the leave of this court. In general the court expects each party to advance his whole case at the trial. In the interests of fairness to the other party this court should be slow to allow new points, which were available to be taken at the trial but were not taken, to be advanced for the first time in this court. That consideration is the weightier if further evidence might have been adduced at the trial, had the point been taken then, or if the decision on the point requires an evaluation of all the evidence and could be affected by the impression which the trial judge receives from seeing and hearing the witnesses. Indeed it is hard to see how, if those circumstances obtained, this court, having regard to the overriding objective of dealing with cases justly, could allow that new point to be taken.
39. In my judgment it would not be right to allow the new points to be taken for the following reasons:
(1) The new points shift the focus of the issue of breach of the Implied Term from whether the dismissal was in bad faith, because MBNA wanted to replace Mr Jones with Mr Akin, to the reasonableness of MBNA's investigations. As Mr Reynold explained, Mr Jones' case now is that MBNA breached the Implied Term by making enquiries of Masons as to whether the claimed payment by Mr Jones had been made and by holding formal disciplinary hearings instead of making informal enquiries of Mr Jones. I am far from satisfied that the way MBNA conducted its case before the Recorder would not have altered had the way that the case has now been put by Mr Jones been adopted at the trial. Although Mr Pitt-Payne conceded before Buxton LJ that he had not been precluded by the case put below from investigating lines of enquiry relevant to the case as now put, the elucidation of Mr Jones' case by the amendment to the notice of appeal and the particulars to which I have referred only came after the hearing before Buxton LJ. Mr Jeans has pointed out that MBNA might well have wanted to call further evidence on the matters now raised, for example on the circumstances in which enquiries, such as those made by MBNA of Masons, are ordinarily made. Further, he has drawn attention to the regulatory restrictions under which, as is well-known, banks and others in the financial services industry operate. He said that MBNA might have wanted to put in evidence as to the effect such regulatory pressure had on MBNA, concerned as it would be that the senior officer in its Treasury should be above suspicion. In my judgment, this is a case where further evidence might have been adduced at the trial had the points now taken been taken then.
(2) The new way in which Mr Jones' case is now put requires further findings of fact to be made by this court on what are alleged to be wholly unreasonable actions by MBNA. Mr Reynold rightly did not suggest that we should now order the case to be remitted to the Recorder for further findings to be made by her. I do not accept that the new findings which we are asked to make flow inevitably from the findings made by the Recorder to which I have referred. I am far from persuaded that it would be appropriate for this court to make such further findings. They can only properly be made by the trial judge who has seen and heard the witnesses and can evaluate the evidence as a whole.
(3) It would be unfair to require MBNA, having been substantially successful in the county court, to face a new and significantly increased claim (last estimated at nearly £370,000) on points to be raised for the first time in this court when it cannot be said that the concession which was made was obviously wrong (we have not heard argument as to whether it was wrong) or attributable to inexperienced legal representatives and when there was no impediment to the points being taken then.
40. The offer as to costs made by Mr Reynold does not weigh heavily in the scales (Mr Jones is legally aided and if he recovered no damages, MBNA is likely to be unable to recover from him costs awarded to it) against the far weightier matters to which I have referred. In my judgment justice to MBNA requires that neither new point should be allowed to be taken. I would therefore dismiss the appeal."