Aidan Reay, instructed by Andrew Oranjuik of Martin Kaye LLP, successfully appeared on behalf of the respondent in Singh v Dass [2019] EWCA 360.
The appellant had brought a claim in the County Court at Birmingham in late 2014 for alleged non-payment of sums due under a building contract that had terminated in late 2008. The respondent had successfully argued at a preliminary issue trial on limitation that the claims were statute barred by the Limitation Act 1980 having been brought more than 6 years after the termination of the contract.
The appellant obtained permission from the Court of Appeal to argue that there had been a fresh accrual of the cause of action under s.29(5) of the Limitation Act 1980 as a result of part-payment but subject to the respondent being permitted to challenge the introduction of this new argument at the appeal stage.
Before McCombe, Moylan and Haddon-Cave LJJ in the Court of Appeal, Aidan Reay successfully argued on behalf of the respondent that it was not open to the appellant to raise this new point on appeal when it had not been taken below because it would require evidence to be adduced and findings of fact to be made that were not made below and because, had the point been raised below, the trial in the cCounty Court would have been conducted differently.
The lead judgment of Haddon-Cave LJ provides a useful review and confirmation of the principles which apply when a party wishes to raise a new argument on appeal and will be an important reference for any lawyers evaluating whether they can or should run new points on an appeal.
The judgment can be found at: http://www.bailii.org/ew/cases/EWCA/Civ/2019/360.html
