Gray v Elite Town Management [2016] EWCA Civ 1216

A1/2015/2772, A1/2015/2772(A) & A1/2015/2685[2016] EWCA Civ 1216
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE BAILEY)
Venue Royal Courts of JusticeDate Thursday, 3 November 2016
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE JACKSON
LORD JUSTICE McCOMBE
LORD JUSTICE CLARKE
Between
GRAYApplicantv
Between
ELITE TOWN MANAGEMENTRespondent
DAR Transcript of the Stenograph Notes ofWordWave International LimitedA DTI Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
The Applicant appeared in person for in personMr C Winser (instructed by Child & Child) appeared for Respondent

J U D G M E N T(Approved)

LORD JUSTICE JACKSON:

[1]This is the judgment of the court on an application to amend. In these two appeals today Mr Gray, who, as he is quite entitled to do, has dispensed with the services of his counsel and decided to present his case in person, seeks permission to amend his notice of appeal to include new grounds.[2]The notice of appeal is seeking to pursue a second appeal to the Court of Appeal from the decision of Judge Bailey, who was himself hearing an appeal from the award of a third surveyor under the Party Wall Act 1996.[3]Rule 52.13 provides:
"Permission is required from the Court of Appeal for any appeal to that court from a decision of the County Court, the family court or the High Court which was itself made on appeal. The Court of Appeal will not give permission unless it considers that - (a) the appeal would raise an important point of principle or practice; or (b) there is some other compelling reason for the Court of Appeal to hear it."
[4]Mr Gray in his helpful submissions this morning began by saying that the dispute concerns properties in a high value area of London, basement construction is common in London, large sums of money are involved and matters of this nature are of considerable importance. This court accepts that property owners in high value areas of London are in many instances constructing basements, that large sums of money may be involved, and that any genuine points of law arising under the Party Wall Act 1996 may well raise important points of principle or practice liable to recur in other cases.[5]In our view, however, the matters which Mr Gray seeks to raise by way of amendment to his notice of appeal are not matters which raise any important points of principle or practice and there is no other compelling reason for the Court of Appeal to hear an appeal on those matters. The points which Mr Gray seeks to argue are all matters of detail relating to the evidence in this case and they do not satisfy the second appeals test which we have read out from the Civil Procedure Rules.[6]The matters which Mr Gray seeks to argue could, in our view, have been raised at the hearing below in the County Court. It is too late now to raise these new matters in the Court of Appeal. Indeed, it seems to us that there is an inconsistency between the points which Mr Gray seeks to raise by way of amendment and the arguments which he pursued below, or which his counsel pursued below, on which he succeeded, leading to a favourable award for Mr Gray under section 11(11) of the Party Wall Act.[7]A further difficulty in Mr Gray's path in relation to the amendments is this. The points which he seeks to raise would require further factual evidence. It is not the function of this court hearing a second appeal in a party wall matter to receive fresh evidence. We have to deal with the points of law which arise from the judgment under appeal.[8]For all of those reasons, we refuse the application to amend.