Kul v DWF: New Points on Appeal and Late Amendments [2026] EWCA Civ 1130

QOCS — 2026-08-27

The Court of Appeal refused to entertain a new and unpleaded case advanced at the appeal hearing. Kul v DWF explains the strict approach to late amendments, new points on appeal, relief from sanctions and why an order for costs cannot always compensate for procedural prejudice.

Overview

Date: 27 August 2026

Judges: Lord Justice Warby, Lady Justice Asplin and Lord Justice Newey

Court: Court of Appeal, Civil Division

Citation: [2026] EWCA Civ 1130

Nature of Proceedings: Appeal concerning an unpleaded data protection case advanced in litigation arising from allegations of fundamental dishonesty in road traffic claims

Key Issues:

The limits imposed by the grounds of appeal and the grant of permission
The test for advancing a new point for the first time on appeal
Late amendments to pleadings and grounds after trial
Relief from sanctions where an appellant changes its case at the appeal hearing
Why costs cannot always compensate for the prejudice caused by a late change of case
The distinction between the judgment's QOCS context and its actual procedural holdings

In Yesim Kul & Ors v DWF Law LLP [2026] EWCA Civ 1130, the Court of Appeal dismissed an appeal arising from data protection litigation connected with fundamental dishonesty and qualified one-way costs shifting in 43 road traffic claims. The decisive point was procedural. The appellants advanced a new and unpleaded case at the appeal hearing without amending their pleadings or grounds, without seeking relief from sanctions and without an adequate explanation for the change.

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The Facts

A group of insurers suspected that they and their insured had faced a substantial number of fraudulent or dishonestly exaggerated personal injury claims based on bogus medical reports. In 43 county court claims, the defendants relied on fundamental dishonesty. If established, this could result in dismissal under section 57 of the Criminal Justice and Courts Act 2015 and the loss of QOCS protection under CPR 44.16(1): [3].

DWF acted for the insurers. A review considered 372 road traffic claims, of which 367 involved claimants represented by Ersan Solicitors. DWF prepared a spreadsheet identifying patterns said to support the dishonesty allegations. It contained claimants' names and information about their medical claims. James Stevens of DWF exhibited the spreadsheet to a witness statement served in the disputed claims: [4] to [5].

The spreadsheet prompted objections, applications to exclude the evidence and complaints to the Information Commissioner's Office. The data protection ground advanced in the exclusion applications was dropped. The ICO later found no evidence that DWF had breached data protection law. In March 2023, HHJ Backhouse directed DWF to serve a pseudonymised version of the spreadsheet. The order and an undertaking given by Ersan were intended to apply across all 43 disputed claims: [7] to [11].

In October 2023, a High Court Part 8 claim was issued on behalf of 127 individuals. After amendment, 124 claims were abandoned and the case was reduced to three claimants seeking declarations and compliance orders under the Data Protection Act 2018. They alleged that DWF had unlawfully processed their personal and medical data: [13] to [20].

Eady J dismissed the claims after a two-day trial. She held that DWF's processing was lawful and proportionate, that using names had been justified at the initial stage and that pseudonymisation had been adopted once it became practicable. She also held that the impact on the claimants was minimal: [25] to [34].

The appeal did not remain within the case presented at trial. By the end of the hearing, the appellants sought declarations directed to an alleged risk that DWF might use a non-pseudonymised version of the spreadsheet in future. That case had not been pleaded, was outside the grounds for which permission had been given and depended on factual propositions contrary to the findings below: [44] to [45].

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The Court of Appeal's Decision

1. Three procedural permissions were required

Warby LJ identified three steps that had to be taken before the new case could be considered. The appellants needed permission to amend their Particulars of Claim after judgment, permission to amend their grounds of appeal and permission to advance a new point on appeal: [46].

None of those applications had been made. No proposed re-amended pleading or amended grounds were put before the court. The appeal could not be treated as though those procedural steps were unnecessary merely because counsel had advanced the argument orally.

For costs appeals, the point is direct. An appellant cannot use its skeleton argument or oral submissions to enlarge the case beyond the grounds and the grant of permission. Any proposed amendment must be identified, formulated and supported before the court is asked to decide it.

2. The grant of permission defines the appeal

At [47], the court restated that an appeal court's jurisdiction is constrained by the grounds of appeal and the grant of permission. A substantive change requires the court's permission under CPR 52.17 and, in the Court of Appeal, paragraph 30 of Practice Direction 52C.

Where the amendment is sought outside the time for appealing, the court first applies the principles governing late amendments. It then addresses relief from sanctions under the Denton framework where appropriate. The appellant cannot avoid either stage by describing the new argument as a point of law.

3. Payment of costs does not cure every prejudice

The judgment gives a useful warning against assuming that an adverse costs order can answer any late procedural change. At [48], Warby LJ summarised the principles governing late amendments:

> But it is no longer the rule that costs, if they can be paid, are a sufficient compensation.

The applicant must formulate the amendment, explain why it was not advanced earlier and show that the strength of the proposed case outweighs the prejudice to the other party. The court must also consider other court users and the fair allocation of limited judicial resources. Those principles apply with even greater rigour where amendment is sought after trial and during an appeal.

This matters in costs litigation because late points are often defended on the basis that the other side can be protected by costs. Kul confirms that financial compensation is only one factor. Lost forensic opportunities, a trial conducted on a different basis and the use of further court resources may make a costs order inadequate.

4. New points on appeal require caution and a cogent explanation

At [49] to [50], the court reviewed the principles governing a point taken for the first time on appeal. The discretion depends on all relevant factors, including the nature of the proceedings below, the nature of the new point and the prejudice that would follow.

An appellate court will rarely permit a new point where further factual findings would be required. It will expect a cogent explanation for the failure to raise the point below. Even a point characterised as pure law will generally require adequate time for the respondent to answer it, an absence of detrimental reliance on the earlier omission and an ability to protect the respondent in costs.

The appellants' case failed those tests. The alleged risk of future processing had not been investigated at trial. The court would have needed either to make fresh factual findings or direct a new evaluation. DWF had prepared for and defended a different case: [55] to [57].

5. A change of counsel was not a good explanation

The only explanation offered for the new argument was that new leading counsel had brought fresh eyes to the case. Warby LJ rejected that explanation at [57], adopting Lewison LJ's observation in Demetriou v Mopara:

> I do not regard a change of counsel as itself being a good reason for the delay in seeking to amend.

Fresh analysis may reveal a better argument, but it does not explain why the argument was absent from the pleadings, trial or original grounds. Practitioners instructed on an appeal should therefore identify any change of case at the outset and deal openly with amendment and relief from sanctions.

6. The new case was weak on both law and fact

The proposed case did not have sufficient merit to outweigh the prejudice. The Court of Appeal's decision in Cooper v National Crime Agency remained binding authority on reasonable necessity in the data protection context. The appellants were wrong to say that Cooper had overlooked South Lanarkshire Council v Scottish Information Commissioner: [59].

The factual case was weaker still. The March 2023 order had resolved pseudonymisation for all the disputed claims. DWF confirmed that only the pseudonymised spreadsheet had been used since then. Warby LJ found no tenable basis for alleging a future risk that DWF would revert to the version containing names: [60].

Even if a genuine concern had remained, the appropriate first step was correspondence seeking assurances. If a satisfactory response was not given, the appropriate forum would have been the county court dealing with the disputed claims, not a new High Court action or a new point introduced at the appeal hearing: [61].

7. Relief from sanctions would also have been refused

At [62], the court applied the Denton principles for completeness. The default was serious and significant. There was no application for relief, no supporting evidence and no good reason for the delay. The prejudice, weak merits, lack of procedural rigour and earlier indulgence by the trial judge all pointed against an extension of time.

The sequence matters. The court did not treat relief from sanctions as a substitute for permission to amend or permission to raise a new point. Each procedural requirement had to be confronted.

8. The court stopped short of finding abuse

DWF argued that the action and appeal were attempts to circumvent earlier decisions about the spreadsheet. The Court of Appeal did not determine abuse because there had been no finding below and no respondent's notice. Warby LJ nevertheless concluded at [63] that:

> the appeal has been wasteful of time and resources in a way that is, fortunately, highly unusual, and without any good reason being apparent.

That distinction should be preserved. The court strongly criticised the conduct and dismissed the appeal, but it did not make a finding that the proceedings were an abuse of process.

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The Limits of the QOCS Point

The underlying claims placed QOCS and fundamental dishonesty in the factual background. The Court of Appeal recorded that a finding of fundamental dishonesty could lead to dismissal under section 57 and loss of QOCS protection under CPR 44.16(1): [3].

The judgment does not decide whether any claimant was fundamentally dishonest. It does not alter the test under section 57, decide an application under CPR 44.16 or determine the admissibility or weight of the spreadsheet. The appeal concerned the procedural legitimacy of a new data protection case advanced too late.

Practitioners should therefore resist citing Kul as a substantive QOCS authority. Its value for costs practice lies in appellate procedure, late amendment, relief from sanctions and the limits of relying on costs to compensate for a change of case.

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Practical Implications

For Costs Lawyers

1. Match every appeal point to the grounds and permission. Before drafting a skeleton argument, identify the order challenged, the permitted grounds and the precise relief sought. A better argument discovered later may require formal amendment.

2. Put the amendment before the court in final form. Provide proposed amended grounds or pleadings, supporting evidence and a clear explanation for the delay. Oral reformulation at the hearing is not enough.

3. Do not assume costs can answer the prejudice. Consider whether the new point would have changed disclosure, witness evidence, cross-examination or the conduct of the hearing below. Those effects may not be compensable by an order for costs.

4. Address every procedural gateway. Permission to amend, permission to raise a new point and relief from sanctions are distinct questions. Submissions should not collapse them into a general appeal to the merits.

5. Use the authority for its actual holding. The QOCS and fundamental dishonesty issues explain the background, but Kul is not a decision on whether QOCS protection should be removed.

For Litigation Practitioners

1. Plead the remedy that will be sought. A claim based on future risk requires a pleaded factual basis and appropriate prospective relief. It cannot safely be reconstructed after trial as a different case.

2. Review appellate strategy early. New counsel should compare the proposed appeal with the pleadings, evidence, judgment, order, grounds and grant of permission before the skeleton is settled.

3. Seek assurances before starting fresh proceedings. Where a concern may be resolved by confirmation of future conduct, correspondence may be the proportionate first step. The existing court may also be the correct forum.

4. Keep data use proportionate in fraud litigation. Although the appeal failed on procedural grounds, the history shows the value of pseudonymising cross-claim data once names are no longer required for verification.

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Conclusion

Kul v DWF is a firm restatement of the limits on changing a case after trial. The Court of Appeal refused to entertain an argument that was outside the pleadings, outside the permitted grounds and dependent on factual issues that had not been tried. The absence of formal applications and supporting evidence made the position worse.

The judgment is especially useful on one recurring costs point: an order for costs does not necessarily compensate for the prejudice caused by a late amendment. Procedural fairness, lost opportunities at trial and the use of court resources may outweigh the proposed argument even where the applicant offers to meet the financial consequences.

For costs practitioners, the safe use of the authority is narrow but important. It supports disciplined appellate pleading and early applications for amendment. It should not be presented as a ruling on fundamental dishonesty or the operation of QOCS.

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Citation: Yesim Kul & Ors v DWF Law LLP [2026] EWCA Civ 1130

Full judgment available at: The National Archives

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