Ambrose v Shevlin: High Court is not a dress rehearsal–to allow an appellant to reinvent a case would be an injustice

enjoy-life-not-dress-rehearsal--large-msg-122646869979Here, the Court once again addressed the issue of when an appellant can introduce arguments on appeal that were not raised at trial. The appellate court must balance the competing interests that an appellant does not lose a case because an issue was not argued at trial against the principle that a trial is not a dress rehearsal–its purpose is to definitively establish rights, obligations and liabilities.


On the 25th of February 1994 there was heavy rainfall in Carrickmacross, County Monaghan. That afternoon, Ambrose noticed that water levels were rising around his home. On investigation, he determined that the cause of this was that Shevlin had infilled a drain on his neighbouring property which up to then had allowed water to flow away from Ambrose’s home. A county council engineer arranged for a JCB to clear the drain. The water subsided after that, but not before it had entered Ambrose’s home. The following day the drain was again filled in; and further flooding was caused to Ambrose’s home. The filling of the drain was an unauthorised development as it was done without planning permission.

Ambrose issued High Court proceedings against Shevlin claiming that he had caused the flooding. Before the trial, the parties agreed to the quantum of damages at €45,000, without Shevlin conceding on causation. The issue of distinguishing between damage caused on the first night and damage caused on the second night was not considered at that time. Dunne J held that the flooding on the first night was not foreseeable but the flooding on the second night was. Therefore, Shevlin was legally liable for the damage caused on the second night but not the first night. As the parties had not distinguished between the damage caused on either night, Dunne J ordered that Shevlin pay damages at the full quantum agreed.

Shevlin appealed that decision to the Supreme Court. Originally, he appealed the decision as to his liability for the damage, and he also appealed the decision not to distinguish between the damage caused on either night: even if he was liable for the damage caused on the second night, he ought not to be liable to pay for damage caused on the first night for which the court held he was not legally responsible. Later though, Shevlin sought to amend his notice of appeal. He sought to add two substantive grounds of appeal which were not argued at trial. The first was based on a land owner’s right to protect his own land against flooding even if that increases the risk of his neighbour’s land flooding. The second was based on a land owner’s right to make reasonable use of his land without suffering action for consequences that may cause to his neighbours.

Supreme Court

Clarke J, writing for the Court, first addressed the issue of allowing an appellant to raise issues on appeal that were not raised during the trial. Referring to Lough Swilly Shellfish Growers v Bradley, he outlined the competing interests to be considered: it may be unjust that a person loses a case because of a point not made at trial; against that, it is desirable that cases should be fully argued at trial to avoid a proliferation of unnecessary appeals which would waste valuable court time. Also, there is a spectrum of cases where it is sought to introduce new issues on appeal. At one end there will be cases where the appellant is reformulating an argument made at trial which will not require the admittance of new evidence. In such cases the appellate court should facilitate the appellant. On the other end of the spectrum, however, there will be cases where the appellant will want to make an argument diametrically opposed to the case argued at trial. That presents a real risk of injustice to the party that was successful at trial.

There is an element of gamesmanship involved in litigation. A party to litigation will often frame their submissions and evidence to address those forwarded by the opposing party. And how the issues were argued may affect the findings of fact made by the trial judge. If an appellant wants to make an argument on appeal that was not addressed at trial–or which is the opposite of the argument made at trial–the respondant may be unjustly disadvantaged by the finding of fact made by the trial judge based on arguments made in support of a position not being advanced on appeal [4.13 – 4.17]. A trial is not a dress rehearsal–its purpose is to definitively determine rights, obligations and liabilities. To allow a party to reinvent its case and introduce a major legal issue on appeal which was not addressed at trial would itself be an injustice [4.21]. For those reasons, Clarke would not allow the two new grounds to be considered.

On the issue of legal causation, Shevlin relied on Performance Cars Limited v Abraham [1962] 1 QG 33. There it was held that a defendant was not liable for the costs of respraying a car he damaged in a colission as a previous unconnected colission had caused damage which required that the car be resprayed. Clarke J distinguished this case, though, on the fact that both incidences of flooding were caused by Shevlin. Furthermore, Shevlin had chosen for tactical reasons not to raise the issue in the High Court of distinguishing between the damage on either nights; for the reasons outlined above, it would be unjust to allow him to make that argument on appeal; and given that the flooding happened more than twenty years previously, it would be unjust to order a retrial. The Court dismissed the appeal.


As the issue of costs was addressed in the High Court and compensation had been paid at that time, and as the Court said that it is policy in disputes between neighbours not to antagonise things further by making orders for large payments towards legal expenses, it did not disturb the order of the High Court and did not make any order for costs for the appeal.

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