Arguing unpleaded point

El Dupont de Nemours and Co v ST Dupont (No 2) (CHD TLR 28 November)

On an application by a party to argue a point raised for the first time during, or shortly before, the hearing, in the absence of special factors, if there was no need for any significant adjournment to enable the party to put in evidence or otherwise prepare for a new and difficult point, then justice would normally indicate that discretion be exercised in favour of permitting the point to be argued, especially if it was raised before the hearing started. If the point was bad, then no prejudice would be caused to the other party by its being raised. If the point was good, then, at least in the absence of special circumstances, it might well represent an unduly harsh penalty on the party wishing to raise the point, and a windfall which was hard to justify in favour of the party against whom the point was raised, if it could not be argued.