LEGAL PRINCIPLE: CIVIL PROCEDURE – Raising Fresh Issues on Appeal – Discretion of Appellate Court
PRINCIPLE STATEMENT
Although the Court of Appeal gives appellants leave to raise an issue, it does not become automatic that the point so raised would succeed; its success or failure would depend on its merit.
RATIO DECIDENDI (SOURCE)
"Although the Court of Appeal gave the appellants leave to raise the issue, it did not become automatic that the point so raised would succeed. Its success or failure would depend on its merit."
EXPLANATION / SCOPE
Leave to raise fresh issues on appeal is procedural permission, not substantive endorsement. Granting leave means: the appellate court will hear and consider the issue, but success depends entirely on the issue’s merit. Leave doesn’t create presumption of validity or guarantee success. This two-stage process serves: (1) Leave stage—assesses whether the issue should be entertained (considering factors like why it wasn’t raised below, its importance, prejudice to respondent); (2) Merit stage—determines whether the issue actually succeeds on its legal and factual merits. Parties granted leave must still fully argue and prove their point. This prevents: parties from assuming leave equals success, inadequate argument of fresh issues, and confusion between procedural permission and substantive ruling. Courts clearly distinguish between granting leave (procedural) and upholding the issue (substantive).