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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Dervis v Deniz [2025] EWHC 902 (Ch) (11 April 2025) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2025/902.html Cite as: [2025] EWHC 902 (Ch) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
CHANCERY APPEALS (ChD)
On appeal from the order of His Honour Judge Gerald made in the County Court at Central London on 2nd February 2024 – (Case Number J03CL738)
7 Rolls Buildings Fetter Lane London, EC4A 1NL |
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B e f o r e :
____________________
DUNYA DERVIS |
Appellant |
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and |
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KENAN DENIZ |
Respondent |
____________________
Miriam Shalom (instructed by Burrows Solicitors) for the Respondent
Hearing date: 21st March 2025
____________________
Crown Copyright ©
Remote hand-down: This judgment was handed down remotely at 10.30am on Friday, 11th April 2025 by circulation to the parties and their representatives by email and by release to the National Archives.
Mr Justice Edwin Johnson:
Introduction
The relevant factual background
The email exchanges
"In order to move forward with our lives, I am asking that if you are willing to be reasonable enough to provide consent to remove yourself from the mortgage so that you can no longer use this as a weapon to control me. I also ask that you pay off your 6K credit card debt which I have been covering."
"I don't want the house it's yours it's always been yours! Let me tell you something the only thing I enjoyed doing with the house was doing it up and seeing u smile. Every BODY knows this and was against what I was doing, no one even wanted
Me to be with you but I chose you, U made me happy my life was in your hands your control not for other ppls happiness or control!"
"I hate that house I want nothing to do with it. I wish you sell it and get a new place cosy, not a house full of history. Like you got dead ppl walking around in there.
I would love to do that with u start fresh new area. - So why won't you come off the house if you want nothing to do with it? You attacked me, I don't want a future with a violent coward."
"What do you want to come off the house?"
"What do you want to come off the house?
(What)?"
"Do you intend on removing your name off the house?"
"I give my full consent to be removed of the mortgage at 41 Newbury avenue EN3 6EF.
I can be present to sign any documents needed.
Not seeking any financial interest in the property.
Give me till the end of the month I will transfer £6000 pounds to you."
"Dunya continued to manipulate me. Despite having obtained an injunction order against me she repeatedly contacted me, and I responded and also initiated contact. I made it clear to her I wanted a reconciliation. Following an exchange of e-mail on or about 10th June 2022 Dunya called me. She said if I agreed to come off the title to the Property she would consider giving us a second chance. She wanted it in writing stating she did not want me to be able to use ownership of the Property to be used as a weapon against her. I thought I would try. I e-mailed Dunya on 10th June stating that I consented to coming off the mortgage and that I would not seek a financial interest in the Property. I also said that I would pay her £600,000. This was on the Friday. On the Saturday I tried to call her and sent a text message. I received no reply. On the Sunday I tried again to contact Dunya by text message and by calling her. Again, I received no reply. I realised then that she had only said she would consider getting back together with me in order to get Property transferred into her sole name and so on 12th June 2022 I e-mailed Dunya retracting my consent to the transfer of the Property and my offer to pay her £6,000."
"I retract my consent from removing my name of the mortgage and seek Financial interest in the property.
I am open to your offering and is willing to negotiate a fee to be removed.
I am lawfully within my rights to do so.
I also retract my offering from voluntarily paying you six thousand pounds."
The claims in the action
(1) The principal claim was a claim that the 2018 Transfer had not had the effect of vesting the beneficial interest in the Appellant and the Respondent as joint tenants. It is not entirely clear to me on what basis this claim was made, but it appears to have been based on an alleged agreement/common intention that the Respondent should not have/retain any beneficial interest in the Property. I will refer to this claim as "the Principal Claim".
(2) By way of further or alternative claim it was alleged that any beneficial interest which the Respondent might have in the Property was held on resulting trust for the Appellant. The particulars pleaded in support of this claim disclose that the Appellant was alleging that she had been the sole beneficial owner of the Property when she and her sister owned the Property, and that the Respondent had provided no consideration in respect of the 2018 Transfer, nor had there been any gift of a beneficial interest to the Respondent. I will refer to this further or alternative claim as "the Resulting Trust Claim".
(3) There were also claims pleaded in unjust enrichment ("the Unjust Enrichment Claim"), for payment of the sum of £6,000 alleged to represent debts run up by the Respondent on the Appellant's credit card without her authority ("the Credit Card Claim"), and for damages for personal injury suffered as a result of the Respondent's violent conduct ("the Personal Injury Claim").
The Trial and the judgments
"6. It is therefore clear beyond doubt that where there is an express declaration of trust in the form of this declaration of trust, the beneficial interest is exhaustively and comprehensively declared and, as I said at the very beginning of this extremely short judgment, there is no room for doubt that upon severance, the beneficial interest is held as joint tenants in common in equal shares. If there is no such severance, the survivor takes the whole.
7. I am simply unable to understand the claimant's submission that the authorities which I have referred to are applicable here because each of those authorities concerned cases where there was no express declaration of trust. Indeed, in referring to Kernott v Jones, the claimant's counsel referred me to paragraph 51 which summarises the applicable principles but with an initial introductory explanation saying that those principles only apply if there is no express declaration of beneficial interests. Therefore, it is explicit, clear and beyond doubt that the declaration of trust in this case is applicable.
8. There is no pleaded case for setting it aside, rectification or anything else. So the declaration of trust is binding."
"MS BALLARD: In every case, in the case of joint tenancy, the court has got discretion to look at the fairness, what is fair in the exercise of this (Inaudible), and for that reason, equitable accounting, it looks at each person's contribution to the property and therefore, that is what I call equitable accounting, which in this case, particularly, due to the facts of the case, is necessary for the court to make a decision.
JUDGE GERALD: Well, there is no such jurisdiction in relation to everything up until the declaration of trust, so what happened up until then is completely irrelevant for these purposes, because there is the declaration of trust. What equitable accounting means is not that. What it means is an inquiry as to who subsequently has discharged obligations, and that includes if one party has excluded the other from occupation, then they usually have to pay an occupation rent -- which would be your client, I think -- and that is done by a district judge."
"JUDGE GERALD: Okay. Let us just have a look at the pleadings and where the pleaded case is, please. We have got the correct bundles now, I think. Thank you for those. Where in the Particulars of Claim does it say the account and the basis upon which the account is sought, please. Which paragraph?
MS BALLARD: It does not specify the pleading as such, but the pleading is to do with TOLATA, section 14 and the resulting trust and unjust enrichment.
JUDGE GERALD: Well we have dealt with all the trust issues already, okay.
MS BALLARD: Yes.
JUDGE GERALD: So that is the end of that. But my question was where does it say that there should be some sort of equitable accounting?"
"1. By an express declaration of trust dated 10 August 2018 the claimant and the defendant hold 41 Newbury Avenue, Enfield, EN3 6EF on trust for themselves as beneficial joint tenants. Because that is an express declaration of trust, both parties are bound by it, as I held and explained and has long been the law in my judgment of a few days ago.
2. The question for me now to determine is whether or not there should be an order for sale in respect of that property, the claimant and the defendant now no longer living together, whether or not there has been any form of unjust enrichment by the defendant at the expense of the claimant and also liability for a credit card debt, the fourth claim for damages for personal injury no longer being pursued, not because there was no personal injury, but because there is no evidence before me which would enable the court to quantify or otherwise assess any appropriate damages to be awarded against the defendant."
"53. I should say, just one other point which I omitted to mention earlier, was that there was an exchange of emails between the parties back in June 2021 which on one view was the defendant acknowledging that he had no beneficial interest in the property.
54. However, again I accept that that is something which was not in any way a recognition that he did not have any such beneficial interest because, by reason of the declaration of trust he did, but it was written at a time when he was emotionally distressed.
55. Furthermore, it cannot amount to a release or gift of his beneficial interest. Not only is that not pleaded, but of course it does not comply with the relevant formalities. All it is is evidence of somebody (the defendant) trying to re-establish a relationship with somebody (the claimant) who presumably they loved, notwithstanding the rather disgraceful way in which he had physically abused her before the relationship came to an end."
"MS BALLARD: 2021, your Honour. He said, "I don't want the house; it's yours, it's always been yours. Let me tell you something, the only thing I enjoyed …" Those words, your Honour, in my submission, are proof that he never intended to create a trust to have any financial advantage or, if he did at the time, this is the withdrawal of that trust, if he is cancelling what he intended to be as a trust by saying that, "I don't want the house."
JUDGE GERALD: Could you show me where that is pleaded, please?
MS BALLARD: It is not pleaded but it is within their evidence which I asked him and so therefore --
JUDGE GERALD: Well, when you say "withdrawal", that must mean that if it is on the basis that, by that stage, he was a beneficial owner by reason of the declaration of trust, you cannot just withdraw from something in law. You have to gift it. As far as I know, section 51C of the 1925 Law on Property Act, that has to be evidence in writing and it has to be pleaded as well, which it is not.
MS BALLARD: Well, your Honour, to my knowledge, as you said, it is because it is there. I am making a point on that. But, as far as my knowledge is concerned, we are talking about two lay people who are not lawyers, with no disrespect to them. They are not lawyers, they do not know how to draft a document to say that, but as far as I am concerned --
JUDGE GERALD: I appreciate that 100 per cent, but ultimately I have to decide a case on the basis of the pleadings because that is fair for both sides. If something is not pleaded, I would not decide something on an un-pleaded basis.
MS BALLARD: No, it was not pleaded. No, of course not. But it has come up within the course of these proceedings. That is why I am mentioning it. It was not pleaded but during the course of this, and especially when I put to the defendant this email, it did not deny that it was not him and he just said that he wanted to get her back or whatever, but it was not pleaded. But I am just mentioning it because it came up during the course of these proceedings."
The Order
"2. IT IS DECLARED that the beneficial interest in the property situate at and knows as 41 Newbury Avenue Enfield EN3 6EF and registered under HM Land Registry under Title No MX183865 ("the Property") is held on trust by the Claimant and the Defendant for themselves as beneficial joint tenants."
The arguments in the appeal
The Release Claim
"(2) No severance of a joint tenancy of a legal estate, so as to create a tenancy in common in land, shall be permissible, whether by operation of law or otherwise, but this subsection does not affect the right of a joint tenant to release his interest to the other joint tenants, or the right to sever a joint tenancy in an equitable interest whether or not the legal estate is vested in the joint tenants:"
"(a) no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by his agent thereunto lawfully authorised in writing, or by will, or by operation of law;"
"(c) a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same, or by his agent thereunto lawfully authorised in writing or by will."
"A purported assignment of the interest of one joint tenant to the other joint tenant does not constitute an assignment, because each of the joint tenants is already the owner of the whole. The so-called assignor has no separate interest of his own which is capable of being transferred to the other and which the other does not already own. None of this, of course, applies to a tenant in common, because he has a separate and distinct interest of his own which he can assign either to a third party or to his co-owner.
Before 1926, therefore, one joint tenant could not assign his interest to the other. But he could achieve much the same result by releasing his interest. The release operated to extinguish his interest and not to assign it. The difference, though technical, was not a formality. Since a release did not operate by way of assignment or conveyance, it required no words of limitation. Moreover, where there were three or more tenants, a release by one joint tenant did not destroy the unity of title of the others and so sever their interests, for they did not acquire any interest by the release which they did not already own.
No particular form of words was required for a release. Even if it was drafted as any assignment, it still took effect as a release. The difference was one of substance, not form; it was not merely a matter of language. The ability of one joint tenant to release his interest to the other has been preserved by section 36(2) of the Law of Property Act 1925. It is still not possible for one joint tenant to assign his interest to the other."
Hudson v Hathway
"8 On 9 November 2011 Ms Hathway emailed Mr Hudson. Her email read in part:
"Your shares are the main matter outstanding. You have told me that they are not worth anything. Whether or not that is the case, they form part of what was our collective assets at the time we split. I imagine that you feel that I should have no call on them, you earned them, from all the hours of effort you put in at work - my position is, of course, different - you earned them while we were together, your career advancement was part of our relationship, as was the building of pension funds etc. I hope we are both adult and reasonable enough to reach some sort of compromise?"
9 The email was subscribed "Jayne Hathway".
10 Mr Hudson replied on the same day: "My thoughts on this are that anything accrued while we were together is for us to come to an agreement on, which I think fits with what you are saying."
11 The email was subscribed "Lee"; and his full name given. On 24 August 2012 Mr Hudson wrote:
"We'll sort who deserves what in regards to our joint assets (house, shares, savings etc) when we're in a position to liquidate it all, which obviously depends on when you are ready."
12 The email was subscribed "Lee Hudson"."
"13 In July and August 2013,Mr Hudson and Ms Hathway agreed terms set out in emails. In an email of 30 July (but not sent to Ms Hathway until the following day) he said:
"So here it is. We were never married. You have no claim over what is mine. What I consider ring-fenced is what I get from my years of personal graft. They are not up for discussion. I'm not agreeing to give you any . . . The liquid cash, you can have. Savings in the bank, other plans, take it all. Physical property, the contents of the house . . . again I don't want it; keep it. Which leaves the house, a bad asset which is preventing all of us [from] . . . moving on with our lives . . . You know what, I want none of the proceeds of that either. Take it. Buy yourself somewhere you can afford to live . . .
"As for a will, if I were to die before this financial mess is sorted, Heidi [his wife] will have no rights to Picnic House . . .
"What I want is an end to it. So have everything that's available to have now and when the house is sold."
14 The email was subscribed "Lee".
15 Ms Hathway replied on the same day. She said:
"Can't see any point in putting "my side" of the argument. Not because I don't feel that I have a valid case to make, but because it is clear that it would be pointless."
16 On 12 August 2013 she emailed again:
"So that we can move forward and get to a point of completely severing our financial connections, your suggestion, as I understand it, is you get sole ownership of your shares and pension, I get the equity from the house, the house contents, savings and income from endowments. Is that right? If so, then I will accept this and will do everything I can to get the house ready for sale as soon as the situation with the oil spill is resolved."
17 He replied on 9 September: "Yes, that's right . . . Under this arrangement, I've no interest whatsoever in the house, so whilst I will continue to contribute, I won't do so forever."
18 This email was subscribed "Lee".
19 In the autumn and winter of 2013 there was some discussion about Mr Hudson's buying the house. But as his email of 15 December 2013 made clear what was under discussion was his purchase of the whole house and not simply a half share in it."
"20 Time passed and Mr Hudson became impatient with a lack of progress in resolving the oil spill clean up, the insurance claim and the sale of Picnic House. In May and July 2014 he referred in emails to how much time had passed "since we came to a deal". In his email of 2 July 2014 he added:
"If you want to continue to "wait" on the house to maximise your gain (means nothing to me if it sells for a pound or a million) then that needs to be your decision and your responsibility."
21 On 24 August 2014 he wrote:
"Remember the House is of no value to me: the deal from one year ago which was supposed to be finalised six months ago gave you all liquid assets, including the proceeds of the house sale. I don't care what it sells for."
"33 For reasons which are difficult to understand, whether section 53(1) of the Law of Property Act 1925 was satisfied was not argued either at trial or on the first appeal. But at our prompting Mr Horton KC applied to amend the respondent's notice to take the point that Mr Hudson's emails of 31 July 2013 and 9 September 2013 complied with the statutory formalities."
"36 In these (and all the other cases) that we were shown, it has been the appellant who wished to raise the new point. In other words, it is the party seeking to overturn the judgment who wishes to do so on the basis of a point not argued below. The effect of that would be to deprive the respondent of a judgment in their favour. Here, by contrast, it is the respondent (who already has two judgments in her favour) who wishes to raise the new point. CPR r 52.13 simply says that a respondent's notice must be filed where a respondent "wishes to ask the appeal court to uphold the decision of the lower court for reasons different from or additional to those given by the lower court". Whether precisely the same principles apply in such a case is not entirely clear. It is, however, fair to say that in an interlocutory appeal in Riley v Sivier [2021] 4 WLR 84, where the respondent wished to raise a new point, Warby LJ said that this court does not usually allow new points to be taken on appeal although he also rejected the new points on their merits. On the other hand, in Golding v Martin [2019] Ch 489 this court permitted a respondent to raise a new point which had not been argued below."
"37 Mr Learmonth KC objected to the new point on the ground that the case had not been advanced in that way either at trial or on the first appeal, and that the decision not to argue that point had been deliberate. There is, of course, force in that objection. He pointed out that it had been accepted both at trial and on the first appeal that the email traffic did not amount to a contract compliant with section 2 of the Law of Property (Miscellaneous Provisions) Act 1989. So indeed it was, but it is not sought to argue that the email in question did comply with section 2. The argument now sought to be advanced is a different one. The argument depends on the legal effects of the relevant emails, which is a question of law. In those circumstances the court is not bound by one party's concession (Bahamas International Trust Co Ltd v Threadgold [1974] 1 WLR 1514, where a point was raised for the first time in the House of Lords), or the positions taken by the parties on a question of interpretation (Teesside Gas Transportation Ltd v CATS North Sea Ltd [2019] EWHC1220 (Comm) at [119])."
"40 Mr Learmonth also submitted that if we allowed the point to be taken there would have been further evidence that might have been called at trial. That evidence would, in effect, have consisted of what the parties' subjective understanding of the documents was, and further amplification of the background. Although he suggested that in some circumstances subjective evidence is admissible on a question of contractual interpretation (e g to identify the subject-matter of a contract or to demonstrate that the parties had their own private dictionary), that argument erroneously conflates extrinsic evidence and evidence of subjective intent. In my judgment the point is a pure point of law, which depends on the interpretation of the relevant emails. As with any question of interpretation of a written document, the test is an objective one; and I am unable to see how the course of relevant evidence might have been affected. Mr Learmonth also said that if the point had been taken, Mr Hudson might have applied to rectify the email. In view of Judge Ralton's finding of fact about the parties' intentions, that seems to me to be purely theoretical."
"50 In my judgment Mr Hudson's emails of 31 July and 9 September 2013 are sufficient in point of form to amount to a release of his equitable interest in the house. They evince a clear intention to divest himself of that interest immediately, rather than a promise to do so in the future. His email of 30 July 2013 said in relation to the house, "Take it"; and in his follow up on 9 September he disavowed any interest in it. Further emails, with which Mr Learmonth supplied us at the end of the hearing (and in particular those of 2 July 2014 and 25 August 2014) confirm the finality of that decision. Does that amount to the disposition of an interest in land or an equitable interest?"
"67 There is, therefore, a substantial body of authority to the effect that deliberately subscribing one's name to an email amounts to a signature. Given that so much correspondence takes place nowadays by email rather than by letters with a "wet ink" signature, it is, in my judgment, entirely appropriate that the law should recognise that technological developments have extended what an ordinary person would understand by a signature. I would hold, therefore, that Mr Hudson's emails of 31 July and 9 September 2013 were "signed" for the purposes of section 53(1)(a) and (c) of the Law of Property Act 1925.
68 It follows, therefore, that by those emails Mr Hudson released his beneficial interest in Picnic House to Ms Hathway."
Should the Appellant be permitted to pursue the Release Claim in the appeal? – analysis and determination
"22 As Mr Ewart QC for HMRC opened the appeal to us it soon became clear that the lack of pleadings meant that the parties disagreed about what was the scope of the trial; what were the issues that the judge had to decide; whether points had or had not been raised; whether or not they could be raised on appeal; and even what the judge had decided. This is no way to conduct litigation involving millions of pounds. We were told that this unacceptably cavalier approach to pleadings was a common feature of this kind of litigation. It must stop.
23 In our procedural law a trial is intended to be the final resolution of all matters in dispute between the parties. Although a party who is dissatisfied with the outcome of a trial may appeal to this court (usually with permission) the appellate process is, in general, limited to a review of the first instance decision. It is thus the starting point that parties are expected to put before the trial judge all questions both of fact and of law upon which they wish to have an adjudication."
"20 Although the underlying claims depend on EU law, procedural questions are (at least in general) governed by national law. Our procedural system is and remains an adversarial one. It is for the parties (subject to the control of the court) to define the issues on which the court is invited to adjudicate. This function is the purpose of statements of case. The setting out of a party's case in a statement of case enables the other party to know what points are in issue, what documents to disclose, what evidence to call and how to prepare for trial. It is inimical to a fair hearing that a party should be exposed to issues and arguments of which he has had no fair warning. If a party wishes to raise a new point, he should do so by amending a statement of case. We were told that by the time that skeleton arguments for trial were served each party would know what points were in issue. We do not regard that as sufficient. In this case, for example, HMRC's skeleton argument was served about ten days before the trial started. If (as in fact happened in this case) HMRC wished to argue that the evidence proposed to be called by Prudential was directed at the wrong issue (being an issue that had not been raised before) ten days' prior notice was manifestly inadequate.
21 Although in days gone by the court would routinely allow late amendments to statements of case, in more recent time attitudes have changed. It is now the case that the court requires strong justification for a late amendment. This is not only in the interest of the opposing party but also consonant with the interests of other litigants in other cases before the court and the court's duty to allocate a proportionate share of the court's resources to any particular case. Where a new issue arises which is not foreshadowed in a statement of case, a party needs the court's permission to advance it. The court is then faced with a discretionary case management decision, to be exercised in accordance with the overriding objective."
"15. The following legal principles apply where a party seeks to raise a new point on appeal which was not raised below.
16. First, an appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court.
17. Second, an appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial (Mullarkey v Broad [2009] EWCA Civ 2 at [30] and [49]).
18. Third, even where the point might be considered a 'pure point of law', the appellate court will only allow it to be raised if three criteria are satisfied: (a) the other party has had adequate time to deal with the point; (b) the other party has not acted to his detriment on the faith of the earlier omission to raise it; and (c) the other party can be adequately protected in costs. (R (on the application of Humphreys) v Parking and Traffic Appeals Service [2017] EWCA Civ 24; [2017] RTR 22 at [29])."
"26 These authorities show that there is no general rule that a case needs to be "exceptional" before a new point will be allowed to be taken on appeal. Whilst an appellate court will always be cautious before allowing a new point to be taken, the decision whether it is just to permit the new point will depend upon an analysis of all the relevant factors. These will include, in particular, the nature of the proceedings which have taken place in the lower court, the nature of the new point, and any prejudice that would be caused to the opposing party if the new point is allowed to be taken."
"27 At one end of the spectrum are cases such as the Jones case in which there has been a full trial involving live evidence and cross-examination in the lower court, and there is an attempt to raise a new point on appeal which, had it been taken at the trial, might have changed the course of the evidence given at trial, and/or which would require further factual inquiry. In such a case, the potential prejudice to the opposing party is likely to be significant, and the policy arguments in favour of finality in litigation carry great weight. As Peter Gibson LJ said in the Jones case (at para 38), it is hard to see how it could be just to permit the new point to be taken on appeal in such circumstances; but as May LJ also observed (at para 52), there might none the less be exceptional cases in which the appeal court could properly exercise its discretion to do so.
28 At the other end of the spectrum are cases where the point sought to be taken on appeal is a pure point of law which can be run on the basis of the facts as found by the judge in the lower court: see e g Preedy v Dunne [2016] EWCA Civ 805 at [43]–[46]. In such a case, it is far more likely that the appeal court will permit the point to be taken, provided that the other party has time to meet the new argument and has not suffered any irremediable prejudice in the meantime."
"32 Accordingly, given the very limited nature of the initial hearing and the binary decision to be made at it, the most weighty reason identified in the authorities as to why a new point should not be permitted to be advanced on appeal—namely that it would subvert an evidential process which has already taken place at a full trial in the lower court—is simply not present in the instant case."
"23 The trial judge found that the parties had clearly reached a deal, but at that stage it was accepted that the deal did not satisfy the formalities for transferring legal title, an equitable interest or a declaration of trust."
"(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.
(2) The background was famously referred to by Lord Wilberforce as the "matrix of fact," but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.
(3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them."
"The stance which an appellate court should take towards a point not raised at the trial is in general well settled: see Macdougall v Knight (1889) 14 App Cas 194 and The Tasmania (1890) 15 App Cas 223. It is perhaps best stated in Ex parte Firth, In re Cowburn (1882) 19 Ch D 419, 429, per Sir George Jessel MR: '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 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.' 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."
The substance of the Release Claim
The outcome of the appeal
Postscript