Two recent appeal cases have overturned judges' decisions at first instance, which were based on their having taken points which did not feature within a party's pleaded case.

Firstly, the appeal judgment of HHJ Simpkiss in One Parking Solution Ltd v Wilshaw is of particular relevance to Small Claims Track hearings, especially cases concerning parking charge notices.

The Circuit Judge revoked the order made at first instance by Deputy District Judge Harvey, and replaced it with judgment against the Defendant for unpaid parking charge notices.

HHJ Simpkiss stated that the case was, "an object lesson in the dangers that judges face if they raise issues which are not pleaded (particularly issues of sham and fraud)...". Although the Defendant had neither pleaded it nor argued it during the trial, DDJ Harvey had himself raised the allegation of fraud against the Claimant in his judgment. It was "not pleaded and the [Claimant] had no notice that it would have to meet this case, nor any opportunity to respond to it. No-one attended for cross-examination about it and it was not therefore put to the [Claimant]."

The Circuit Judge held that:

- the Claimant had the authority to enter into a contract with the Defendant. This was not a live issue at the outset of the trial because it did not feature within the Defence; HHJ Simpkiss stated at [26] that the DDJ should either not have raised it, or having raised it should not have decided the point without adjourning to give the Claimant the opportunity to address the point

- it was not necessary for the Claimant to prove the landowner's authority to sue had been granted to the Claimant, in any event. This was because (1) the Claimant sought to prove that there was a contract with the Defendant based on the signage and (2) "a possessory title is good enough against anyone without a better title".

- notwithstanding that the engine was still running and she remained within the car, the Defendant had indeed "parked", by stopping for over 11 minutes in a designated space with the brake on. This was likened to long-distance lorry drivers who may not leave their vehicles, but are nevertheless parked when they stop for rest breaks.

- the signage was enough to be visible to anyone driving into the bay, because any reasonable person would have noticed it, and it was fully visible to a driver in the car. Therefore a contract was formed between the parties (Parker v South Eastern Railway Company (1877) 2 CPD per Mellish J at 423).

- despite neither party arguing for it, the DDJ had wrongly read an implied term into the contract for the Defendant to be allowed 10 minutes of free parking (beyond any pre-contractual grace period to allow time for reading the signage).

- the DDJ had failed to apply any analysis pursuant to ParkingEye Ltd v Beavis at [105] and s62 of the Consumer Rights Act 2015, and had wrongly decided that the administration charges were unfair.

- there was apparent bias in this case, with the DDJ having castigated the Claimant but having praised the Defendant over wholly irrelevant matters.

One of the most pertinent passages is at paragraph [88] of HHJ Simpkiss' judgment: "In the context of a small claim trial, where this point is not pleaded and the parties have not addressed it in the evidence, a judge should be very careful before raising it himself and even more careful in deciding it without giving further directions."

Secondly, the Court of Appeal's judgment in Satyam Enterprises Ltd v Burton & Anor [2021] EWCA Civ 287 overturned the decision of Mr James Pickering, who was sitting as a Deputy Judge of the High Court. The Judge at first instance had found as fact that a portfolio of properties over which the parties were in dispute were held on trust for an individual, rather than held by a limited company. This contention was not part of either party's pleaded case, nor was it addressed or raised in argument before the Judge. Indeed, the Claimant had based its case on the premise that it was both legal and beneficial owner of those properties.

Nugee LJ, with whom Arnold LJ and Lewison LJ agreed, gave the decision of the Court. At [35] he stated, "the reason why it is important for a party who wants to run a particular case to plead it is so that the parties can know the issues which need to be addressed in evidence and submissions, and the Court can know what issues it is being asked to decide"

At [36] the Judge went on to say, "...the Judge decided the case on a basis that had neither been pleaded nor canvassed before him. In our system of civil litigation that is impermissible, and a misunderstanding of the judge's function which is to try the issues the parties have raised before him."

The two decisions reinforce the central importance of Statements of Case in civil litigation, as well as reminding practitioners of the fundamental proposition that a party must know the case it is required to meet, without being ambushed by an opponent or the Judge during a hearing.