NO:  A3/2001/0861

Neutral Citation Number: [2001] EWCA Civ 1020
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BRISTOL DISTRICT REGISTRY
BRISTOL MERCANTILE COURT
(MR JUSTICE JACOB)
                                  Royal Courts of Justice  
                                  Strand  
                                  London WC2
 
                             Thursday, 28th June 2001
B e f o r e :

LORD JUSTICE RIX

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GEORGE FREUND

‑ v ‑

CHARLES SCOTT DEVELOPMENTS (SOUTH DEVON) LIMITED

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0171‑421 4040 Fax No: 0171‑831 8838
(Official Shorthand Writers to the Court)
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MIS AMANDA MICHAELS (instructed by Over Taylor Biggs, 1 Oak Tree Place, Manaton Close, Matford Business Park, Exeter EX2 8WA) appeared on behalf of the Applicant

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J U D G M E N T
Thursday, 28th June 2001
1.	LORD JUSTICE RIX: This is a renewed application for permission to appeal. I have already given permission to appeal in respect of the first five paragraphs of the amended grounds of appeal, and this renewed application is made in respect of paragraph 6 of those grounds of appeal which seeks to raise an entirely new point of affirmation and/or estoppel quite outside of the points of construction which were dealt with by the judge below.
2.	In support of that application Miss Michaels submits that under the new CPR regime the Ladd v Marshall considerations, although still relevant as considerations to be taken into account in the overall interests of justice, are no longer strictly binding as conditions precedent to the taking of new evidence on appeal, and she cites recent cases including the unreported decision of Gillingham v Gillingham [2001] EWCA CIV 906 decided on 8th June 2001.
3.	Miss Michaels accepts that there is no explanation or valid excuse for the applicant's failure to take that point further. Moreover, I am very far from being persuaded on the material before me that even upon the new evidence and the submissions made in support of it there is a proper case of affirmation or estoppel. That said, the argument is that there was during a period of about one year before the expiry of the conditional sale agreement on 5th March 2000 during which time the appellant could, it is submitted, have easily remedied the defect which, on the judgment below, has caused them to lose any rights under that agreement, if it had not been for the respondent's conduct.
4.	The argument is that the respondent, Mr Freund, by being prepared to accept a procedure for valuing the land in question without raising the point on which he succeeded in the court below, is to be taken to have affirmed the agreement, or to be estopped from taking the point on which he did succeed. If this were the only point upon which permission to appeal was sought, I would not on the material before me give permission to appeal. In circumstances, however, where there is going to be an appeal in any event and bearing in mind that on one hypothesis this point may be critical to the parties' rights, I am minded to adjourn this application to the hearing of the appeal such that it will be made before the full Court of Appeal on the appeal with of course notice to the respondent.
5.	Should the Court of Appeal give permission to appeal and allow the reception of the new evidence put forward, all of which is documentary evidence essentially between the solicitors for the parties, the appeal canould then be dealt with straightaway on that additional point. I do not think that it will greatly add to the time estimate previously estimated at a day for the appeal. This matter may marginally increase that estimate. Therefore, the application is adjourned to the hearing of the appeal, with appeal on this ground as well to follow, if permission were granted.
(Application adjourned)