Yorkshire Yurts Ltd v Charlotte Rose Crane & Anor

This appeal, brought with permission I gave on 16^th December 2025, from the Order of District Judge MacCuish, dated 31^st October 2025, is concerned, broadly, with two issues:

The Appellant (hereinafter ‘the Defendant’), provides equipment for weddings, in particular, yurt and marquee hire. The Respondents (‘the Claimants’) engaged the Defendant to provide various pieces of equipment for their wedding on 8^th June 2024.

On 18^th December 2024, the Claimants brought an action for breach of contract, alleging that the Defendant had failed to install and provide adequate equipment on the date required. Amongst other things, as the Judge found, and against which there is no appeal, the yurt that they contracted for was dangerous and unusable.

The Claimants sought to recover the extra costs they incurred in hiring alternative equipment and additional workers, to avoid postponing their wedding – ‘as well as’ a full refund of the contract price. The Defendant defended the action. It admitted the contract but denied breach.

The trial took place before the learned Judge on 2^nd September 2025. In a considered reserved written judgment, the Judge found that the Defendant had breached the terms of the contract.

As a consequence of such breach, the Judge held that the Claimants were entitled to a price reduction pursuant to sections 24(1) and/or 56(2) CRA assessed at the full amount of the contract price. The Claimants were therefore entitled to a refund of all that they had paid to the Defendant.

The Judge assessed the price reduction as two distinct elements:

The total sum, £17,115.60, exceeded the contract price of £16,504 by £611.60. The learned Judge held that the right to a price reduction under sections 24 and 56 CRA could not exceed the price paid, and as such, limited the recoverable amount to the contract price of £16,504 plus interest.

The Defendant appeals that decision in part, namely, ‘the decision to award the Claimants a refund or reduction under sections 24 and 56 of the Consumer Rights Act based upon non-pecuniary losses in the total sum of £10,000’.

I record first, that as this is an appeal, the test to be applied is governed by CPR r.52.21:

Neither party has suggested that this Appellate Court should do anything other than review the decision of the learned Judge.

Accordingly, I remind myself that the Defendant can only succeed if they establish that the Judge’s decision was wrong, or unjust because of a serious procedural or other irregularity.

Given the limited extent of this appeal, it is unnecessary to set out the factual background in great detail.

It will suffice to say that, in short, the Defendant agreed to supply and install, amongst other things, a yurt, marquee, catering tent, and furniture. For reasons not relevant here, once erected, the Defendant concluded that the yurt was too dangerous to use.

In addition, there were difficulties with the assembly of the catering tent, the flooring provided for the yurt and marquee was damaged in many areas, and some of the furniture supplied was broken.

To salvage the wedding, the Claimants hired a small marquee to substitute the yurt and re-arranged the venue at the last minute.

The Claimants’ pleaded claim was premised on the basis that the Defendant had, ‘…failed to install and provide adequate equipment on the date required, causing the Claimants to suffer loss’.

By way of pleaded remedy, the Claimants sought to:

The prayer simply sought, ‘The sum of £20,664.00’ plus interest. Pausing there, it is impossible to read the particulars of claim as seeking anything other than double recovery.

In his skeleton argument, and at trial, however, Mr Bain quite properly acknowledged that the Claimants were not entitled to both their extra costs and a full refund. He accepted that they were alternative remedies and sought a refund as the primary remedy.

The claim was defended on the basis, amongst other things, that the yurt could have been used, or alternatively, that it failed due to ‘extreme weather’, entitling the Defendant to cancel or vary the contract under its standard terms and conditions without liability.

In the further alternative, the Defendant argued that all of the equipment save for the yurt had been used by the Claimants and, as such, the Claimants’ claim should be limited to the cost of the yurt at £4,331.25.

Three aspects of the Claimants’ reliance on the CRA were canvassed before the District Judge at the start of trial. The relevant context was, and remains, as follows.

It was common ground that the Defendant was a trader and the Claimants were consumers, and that they entered into a contract for the Defendant to supply goods and services to the Claimants within the meaning of section 1(1) CRA.

This was a mixed contract, so that both Chapter 2 (Goods) and Chapter 4 (Services) applied to the contract - section 1(4). There was a dispute about how and when the contract was formed, but nothing turned on it.

The parties agreed that the terms of the contract incorporated the Defendant’s ‘Standard Terms & Conditions of Hire’ (‘the Terms and Conditions’).

The particulars of claim did not plead any express or implied terms of the contract. They contained a single allegation of breach - that the Defendant, ‘failed to install and provide adequate equipment’.

Implicit in the allegation of breach, therefore, is the suggestion that the contract contained a term that the equipment would be ‘adequate’. It did not, and the Claimants did not at trial suggest that it did.

The Terms and Conditions do not include any warranties or terms providing for the equipment being supplied to be ‘adequate’. Indeed, they impose no express obligations on the Defendant at all as to the quality, condition or standard of that equipment.

The particulars of claim expressly claimed a ‘refund’. A refund is not a remedy available at common law for breach of contract, as distinct from in restitution, and then only in limited circumstances. The Claimants implicitly accepted this at trial.

A refund, in the context of a consumer contract, is a creature of statute. Section 24 (goods) and section 56 (services) CRA provide for the consumer’s right to a price reduction, including any refund payable consequent on the price reduction.

A price reduction, however, and consequential refund is available only for breach of the statutory implied terms, which the Claimants did not plead reliance upon, or even refer to, in their particulars of claim.

Accordingly, the Claimants had pleaded breach of an unspecified term of the contract but no common law remedy for it, and pleaded a statutory remedy but not breach of any statutory implied term. In addition, and somewhat surprisingly, the particulars of claim made no mention of distress or anything that might allude to it.

The inadequacies of the particulars of claim ran as wide as they ran deep. They demonstrated an almost total lack of regard for the basic requirements for pleading a contractual cause of action and were as confused as they were confusing.

In short, the case should not have been presented in the way that it was. Many of the difficulties that arose did so as a result. I should make clear at this point, however, that Mr Bain did not draft the particulars of claim.

In fact, during submissions, I put it to Mr Bain that the particulars of claim was a poorly drafted document. To his credit, he did not seek to shy away from that assertion accepting that the document was not, ‘in the shape it should have been’.

With the above context in mind, I turn to the three issues that were before the Judge at the start of trial.

The first issue was whether the Claimants should be permitted to rely on sections 24 and 56 CRA as providing the legal basis for the remedy that they had pleaded.

Allied to that, and logically prior to it, the second issue was whether the Claimants should be permitted to rely on the statutory implied terms in sections 9, 10 and 48 CRA as to satisfactory quality, fitness for purpose and performance with reasonable care and skill.

Of course, it was necessary for the Claimants to be able to do so as incorporation and breach of the statutory implied terms was the only thing that would trigger the statutory remedy that they had pleaded.

The third issue was whether the Claimants should be permitted to rely upon the unpleaded distress that they had experienced as a matter to be taken into account when quantifying the amount of any refund, in addition to the difference in value between what was contracted for and what was received.

The Claimants presented the identification of these three issues, and in particular their reliance on the CRA, as a ‘clarification’ of their case, and not an amendment of it.

The Claimants’ alternative position was that if, contrary to their primary position, this was a departure from their pleaded case, they should be permitted to depart from it without the need for formal amendment. Finally, if the court was still not with him, Mr Bain stated that he would make an oral application to amend.

The Defendant accepted that the CRA ‘applies broadly’ but disputed the Claimants’ entitlement to rely upon the Act in this case as they had not pleaded the implied terms relied upon, or their breach.

The Defendant also expressed ‘real concerns’ about the attempt by the Claimants to introduce consideration of non-pecuniary loss into the quantification of any refund, having failed to plead the material facts.

Having heard argument, the learned Judge:

Initially, the Grounds of Appeal sought to challenge the Judge’s decision to grant permission to rely on sections 24 and 56 CRA. Before me, that challenge was not pursued in written or oral argument. That was plainly the right approach as that aspect of the appeal could not have succeeded.

The appeal was limited to that part of the order which directed an amount by way of compensation for the Claimants’ distress to be included in the refund awarded. No challenge was made to the element of the refund that reflected the substandard equipment. That part of the refund was also granted under sections 24 and /or 56.

The Judge’s decision to permit reliance on sections 24 and 56 in principle could not be disturbed on appeal absent a wholesale challenge to the entirety of the refund.

Having heard evidence and submissions, in his reserved judgment, the learned Judge determined the second issue raised before him at the start of trial in favour of the Claimants.

The Judge granted the Claimants permission to rely upon the CRA for its implied terms as to satisfactory quality, fitness for purpose, and performance with reasonable care and skill in sections 9, 10 and 48. That decision is not challenged on appeal.

The Judge went on to find that the Defendant was in breach of those implied terms, and that the statutory remedy in sections 24 and 56 was engaged.

The Judge held that there was no good reason why the Defendant should retain all or any part of the sum paid for the yurt, when it could not be used, and a sum should be allowed for other items that were not of satisfactory quality.

Accordingly, in respect of the yurt, the Judge held that the ‘appropriate amount’ of the refund included the sum of £6,615.60 for the unusable yurt, and £500 in respect of the other items.

With regard to non-pecuniary losses, the learned Judge held:

Therefore, by way of a further ‘appropriate amount’, the Judge awarded the Claimants a sum of £10,000, for the distress caused, principally to the First Claimant, with an ‘allowance for’ the Second Claimant.

The global award, therefore, amounted to £17,115.60. Given, however, that under the CRA the Claimants could not be refunded a sum greater than that paid under the contract, they were restricted to judgment in the sum of £16,504 plus interest.

By way of Appellant’s Notice, dated 20^th November 2025, the Claimant raised seven grounds of appeal. In her helpful written argument, however, Ms Gray narrowed the grounds of appeal and refined the same to three issues (for convenience, I have reversed the first and second):

In determining this Appeal, I will first turn to the applicable law as I have determined it to be, and then address the three Issues.

I will take Issue 1 first. Due to overlap between them, I will then take Issues 2 and 3 together. In doing so, I will incorporate the relevant extracts of the Judgment along with Counsel’s submissions as necessary.

Section 24 CRA (as material) provides:

The Explanatory Notes to section 24 state:

Section 56 (as material) provides:

The Explanatory Notes to section 56 state:

I am told there is, as yet, no reported authority providing guidance on the approach to quantifying the ‘appropriate amount’ of a price reduction under the CRA. It is helpful, therefore, to begin with the established position at common law to claims for damages for breach of contract.

The primary measure of damages for breach of contract is the expectation measure. So far as money will allow, the claimant is put into the position they would have been in had the contract been performed. This includes consequential losses, provided that they satisfy the test for remoteness.

In Milner v Carnival Plc [2010] EWCA Civ 389 Lord Justice Ward, giving a judgment with which the other members of the Court of Appeal agreed, considered the question of damages at common law in the so-called ‘holiday cases’ and identified four broad categories of loss:

The first category, diminution in value, is intended, so far as money can do it, to make up the difference between the value of the performance the claimant did receive, and the value of the performance they should have received.

That does not always put the claimant in the position they would have been in had the contract been fully performed. That is why the common law permits recovery of consequential losses, so as to protect the claimant’s full expectation interest.

The right to a price reduction is a statutory remedy. It is provided for in addition to, and not in substitution for, the remedies available at common law - sections 19 and 54 CRA.

The statutory language for the remedy is a ‘price reduction’. The natural and ordinary interpretation is that the starting point is the contract price, and a sum of money is deducted from it.

The contract price is the financial value that the parties have placed on full performance. The whole of the price is payable by the consumer if the contract is fully performed by the trader.

If the trader’s performance does not conform to the contractual standard or partly fails, the consumer is entitled, under the statute, to some money off the contract price. This is to reflect the substandard or partial failure of performance. If the trader performs none of its obligations, the consumer pays none of the price.

As a matter of logic, the remedy of price reduction is concerned only with how much of the price the consumer is required to pay. The contract price therefore sets the parameters for the remedy.

Accordingly, the remedy can be as little as nil (no reduction), or as much as 100% of the price. It can never, however, be more than 100% of the price. Anything more than 100% of the price could not be described as a reduction from the price.

The purpose of a price reduction is to limit the price payable by the consumer to the value of what the consumer received. It is not concerned with the consumer’s full expectation interest.

Therefore, its purpose is not to put the consumer in the position they would have been had the contract been fully performed. It is not concerned with consequential losses.

Consequential losses remain recoverable at common law. They cannot, logically, form part of a price reduction because they form no part of the trader’s contractual performance.

I am supported in that analysis by the Explanatory Notes which make clear, at paragraphs 139 and 266, that a price reduction is concerned with reflecting the difference in value between the price paid by the consumer and what was received in return.

Accordingly, a consumer who wishes to recover not only a refund of the whole or part of the price paid, but also additional consequential losses, must include a claim for common law damages for the same.

Those principles are straightforward to apply in cases where the loss is purely financial. It becomes more difficult where the contract, or an important part of it, is for the provision of a pleasurable amenity.

In those cases the benefit to the consumer of the trader’s contractual performance exceeds its financial value. This is sometimes referred to as the ‘consumer surplus’.

The diminution in value measure assesses the difference between the economic value of the goods and services supplied and those promised. If there is no difference in value, there is no recoverable loss under that head. That is so even if the claimant has lost the amenity they had contracted for, and upon which they placed subjective value.

The common law recognises that where there is no diminution in value, damages may be awarded for loss of amenity and for distress to reflect the enjoyment not experienced and that the opposite effect resulted.

The two elements are, however, conceptually different. Damages for loss of amenity compensate for a contracted-for benefit that was not received. Damages for distress compensate for injury to feelings consequent on the breach of contract.

They are often, but not always, two sides of the same coin - the distress and inconvenience caused by the contractual breach may lead to a loss of enjoyment; conversely, the fact that an experience is not enjoyable when it should be may lead to feelings of distress. In such a case, the award of damages at common law, however expressed, will typically compensate for both elements in a global award.

In the case of a price reduction under the CRA, the award is of an ‘appropriate amount’. The word ‘appropriate’ is deliberate. It connotes an amount that is suitable or fitting taking into all relevant factors.

The contract price is the yardstick by which any price reduction is measured. Since the price represents the value of full contractual performance to the consumer, all elements of performance may be taken into account in assessing the true value to the consumer of what was and was not delivered.

In so doing, the court is not limited to the pecuniary benefits that the consumer was entitled to receive under the contract if there were also non-pecuniary benefits intended to be conferred.

The Explanatory Notes, in the context of services, support that approach:

I consider that, what is being said here is that, where a contract includes a promise that has no economic value, the CRA regards the performance of the promise as being something of value to the consumer. Failure to deliver that aspect of the contract reduces the value of what the consumer has received.

Whilst the same explanation is not given in the Explanatory Notes in relation to goods, there is no principled distinction between goods and services contracts in this respect.

In most cases the contract price is calculated solely by reference to the pecuniary values attached by the parties to the goods/services contracted for. Where the contract, or an important part of it, is for the provision of pleasurable amenity, the amenity is not a separate line item on the breakdown. It is an inherent feature of the contract included within the total contract price.

In such a case, the court looks at the extent to which the contracted-for amenity was delivered. A price reduction can be made if the consumer has been denied it in whole or in part.

Crucially, the price is not reduced for any consequential losses, be they additional expenditure, physical inconvenience or injury to feelings. They are exclusively within the province of general damages.

The fact that, at common law, loss of enjoyment and consequential distress are approached as part of the same exercise is nothing to the point. The common law compensates for the full expectation interest. A price reduction cannot and does not.

Whilst fine distinctions can, of course, be an impediment to justice, I do not see any reason why that would be so in practice. The quantification exercise is quite straightforward.

Taking this case, as an example, any sensible trader is perfectly capable of understanding that a couple, whose wedding came close to ruin will be entitled to something taken off the price on account of the loss of enjoyment, in addition to a reduction in respect of the contractual value of the yurt, and other defective items.

There is no question of the trader being required to engage with the principles of quantification of general damages for distress, a concern expressed by Ms Gray in submissions.

Accordingly, where no separate claim is made for damages, the consumer is simply entitled to a modest sum by way of price reduction to reflect their loss of amenity.

A consumer who wishes to recover a more substantial amount for distress is required to bring a claim for general damages, just as they are if they wish to recover any other kind of consequential loss.

If they do so, the loss of amenity will be taken into account in the award of general damages and there will be no separate price reduction for it. This is to avoid double recovery.

I turn now to consider the narrowed grounds of appeal.

The question asked on this appeal is whether a claim for a refund or reduction in the contract price under sections 24 and 56 CRA can include an award for nonpecuniary loss and to what extent.

For the reasons that I have already explained, the answer is both yes and no:

With respect, the error that the learned Judge fell into was a narrow but important one. The exercise was to ascertain what element of the contract price to attribute to the amenity value of the contract, whereas the Judge approached it as an exercise in assessing the value of the consequential damage caused by the breach.

As a result, the Judge awarded compensationfor consequential distress as part of the price reduction. That was an impermissible approach. Accordingly, the appeal against the price reduction of £10,000 for that element must be upheld.

Before leaving Issue 1, however, I should pay tribute here to the learned Judge’s careful and considered judgment. The Judge’s instinct that non-pecuniary loss is a relevant consideration in the quantification of a refund was manifestly correct.

The flaw in the learned Judge’s approach as I have explained it, was undoubtedly caused by the way in which the Claimants put their case, and not by the Judge’s own failure.

The Judge was invited to make a finding of fact that the Claimants suffered distress by reason of the Defendant’s breaches of contract. That finding was plainly open to him on the evidence.

The Judge correctly identified that this was a form of loss usually reflected in an award of compensation by way of general damages for breach of contract. The Judge, also correctly observed that:

Despite the many liberties that the Claimants sought to take with their poorly pleaded particulars of claim, however, they stopped short of pursuing an unpleaded claim for general damages at trial.

They were not deterred, however, from attempting to achieve the same result through the vehicle of a statutory refund of the contract price. They asserted that non-pecuniary losses could be taken into account in considering the, ‘appropriate amount’ of any price reduction, and relied upon the holiday cases, Milnerand Jarvis v Swan Tours Ltd [1973] 1 Q.B. 233.

The Claimants were effectively inviting the Judge to make an award equivalent to general damages for consequential losses through the guise of a price reduction.

As shown, the Claimants’ approach was wrong as a matter of law. Any award should have been limited to a modest sum for loss of amenity.

The Judge cannot be criticised for engaging with the case in the way it was put. That is especially so given that the first mention of it was raised in Mr Bain’s skeleton argument for trial, and where there is no guidance in the authorities.

Strictly, given the determination on Issue 1, Issues 2 and 3 no longer fall for consideration. Given I have, however, heard full argument, I will deal with the same here.

The essential function of a statement of case is, of course, to enable the opposing party to know the case they have to meet. The fundamental obligation, therefore, is to plead the facts necessary to establish the cause of action pursued. The cause of action includes the remedy, and the facts necessary to establish that remedy.

The statements of case further define and confine the issues upon which disclosure, evidence and argument are required at trial. For there to be a fair trial, the parties must set out the essentials of their case so that the other party is in a position to prepare their disclosure, evidence and arguments.

The parties, therefore, must be able to fairly anticipate what will, and will not, be in issue at trial. Those matters are all well-established, see for example PantelliAssociates Ltdv Corporate City Developments Number Two Ltd [2010] EWHC 3189 (TCC) per Coulson J (as he then was) at [11].

Such matters are also important for the purpose of settlement. Parties must be able to consider alternative ways of resolving the dispute on a fully informed basis.

A defendant, however, is unable to properly evaluate the claimant’s negotiating position if the claimant knows that they intend to run the case in a certain way at trial and the defendant is simply none the wiser.

This judgment is not the opportunity to set out the irreducible minimum of what a claimant is required to plead to successfully put in issue loss of amenity for the purposes of a statutory refund and/or to claim general damages for distress.

It can be safely stated that if something alluding to distress / loss of amenity is not part of the claimant’s pleaded case, they will not be taken into account in fashioning any remedy.

The particulars of claim in this case were devoid of any mention of loss of amenity/distress, and anything from which they could be inferred. Accordingly, ordinarily an amendment would be required to introduce it as an issue affecting remedy.

In this case the learned Judge did not require the Claimants to make the amendment application that Mr Bain had intimated as his last resort, but permitted the Claimants to run the point at trial and ultimately succeed on it without the requirement to apply for or to amend.

The Judge’s decision to permit reliance on the unpleaded implied terms is not challenged on this appeal. The challenged decision is the grant of permission to rely on unpleaded non-pecuniary losses when quantifying a statutory refund.

This matter was first raised at the outset of trial but the decision reserved to the close of trial. I have considerable sympathy with the District Judge for the position in which he found himself at the start of trial. He had taken his own time, over the weekend, to read the trial bundle and skeleton arguments.

Having done so, the Judge correctly identified that the adequacy of the Claimants’ pleaded case was a concern that had to be addressed. In addition, there were five witnesses and an unease as to whether the time estimate for trial was adequate.

There were also practical difficulties arising from the fact that a court room was not available and there were a large number of attendees. Naturally, however, the judge and both parties were keen to start and conclude the trial.

In short, the learned Judge was faced with a great amount to deal with, and a limited amount of time to do it, but the obvious inference from his approach to the case was that he was doing everything he possibly could to preserve the trial date.

The Judge plainly considered that the essential issue, namely whether reliance on sections 24 and 56 CRA would be permitted required early determination. He expressed the view that the other pleading issues could await determination at the close of trial.

The Judge was not pressed for an earlier determination of those reserved matters by either party, and no party suggested to him that any prejudice or other difficulty might arise by reserving the decision.

While the Judge gave full reasons in his written judgment for his decision to permit reliance on the implied terms without amendment, he did not do so in relation to the separate question of whether the Claimants were required to plead any non-pecuniary losses upon which they sought to rely in the quantification of any refund.

The Judge permitted the Claimants to rely upon the same (and gave judgment for them on that basis) but gave no reasons why. The decision is not, however, challenged on the basis of a failure to provide reasons.

Ms Gray submitted that the Judge’s determination was not a case management decision and that he did not have power under CPR Part 3 to permit an unpleaded issue to go to trial. In short, this was not a matter of discretion, and the Judge was simply wrong.

I reject that submission. I am quite satisfied that whether to allow an amendment is always a matter for the discretion of the court, and the court retains the power to allow a party to proceed on an unpleaded case.

Such power derives either under CPR r.3.10, to rectify matters where there has been an error of procedure, or under CPR r.3.1(1)(p,) to take any step for the purpose of managing the case and furthering the overriding objective.

In support of her arguments, Ms Gray relied upon Jacobs v Chalcot Crescent(Management) Company Ltd [2024] EWHC 259 (Ch) per Fancourt J (as he was then), particularly the passages at paragraphs 57 and 60.

I confess that I did not find those passages of particular assistance here as that case was concerned with an unpleaded issue that was not relied upon at the start of trial, and which would have necessitated an adjournment of the trial, and more evidence if permission to amend were granted.

Ms Gray further relied upon Al-Medenni v Mars [2025] EWCA Civ 1041. That case concerned a trial judge who had deployed his own case theory in the trial before him, which had not been pleaded or pursued by either party. That is not what occurred here.

Both counsel also relied upon Ali v Dink [2022] EWCA Civ 34. The decision reaffirms, amongst other things, the need for parties to fully plead the facts they intend to rely on.

In addition, Ali v Dink confirms that the court may take a pragmatic approach in line with the overriding objective, and may make findings of fact which could go beyond the pleadings and evidence given at trial. In doing so, the key is whether that would result in prejudice that would be contrary to the interests of justice.

As a matter of principle, however, it will be very rare for a party to be permitted to proceed on an unpleaded issue, and even rarer for them to be permitted to proceed without formally amending their statement of case.

In this case the Judge did not require Mr Bain to make the amendment application that he had intimated as his last resort, but permitted the Claimants to run the point at trial and ultimately succeed on it without the requirement to apply for or to amend.

That was an exceptional course, and one which should only be entertained if the parameters of the new case are made tolerably clear at the outset of trial so that there can be no doubt as to the case being advanced. That itself is a necessary but by no means sufficient requirement.

Even if that essential requirement is met, the party seeking to advance a new case will still bear the heavy burden of establishing that it is in the interests of justice to allow them to proceed on their new case. The principles set out in the authorities on late amendment are of direct relevance.

I do not accept, however, Ms Gray’s submission that exercising a discretion to proceed on an unpleaded case means that those factors were effectively bypassed by the Judge and not considered.

Those factors had been canvassed thoroughly in Ms Gray’s written and oral submissions and I should infer, unless there is good reason not to, that the learned Judge had them in mind.

I consider that the question here is whether, having regard to all of the factors that the Judge was entitled to take into account, his decision was within the range of reasonable decisions that a judge could have reached. The difficulty, of course, is where reasons are not set out by the lower court it is not possible to review them.

In circumstances, however, where the Judge’s decision does not depend on his evaluation of the evidence of the witnesses on the substantive issues in the claim, this Appellate Court is nevertheless well placed to consider the question having regard to:

There were several factors for the Judge to consider.

The starting point was that there was no prior express notice of reliance on nonpecuniary losses. The same was not pleaded and not contained in the Claimants’ Solicitors email, dated 18^th August 2025, which stated no more than that the claim for a refund would be made by reference to sections 24 and 56 CRA.

In fact the first time the point was made explicit was when it appeared in Mr Bain’s Skeleton Argument for trial, dated 29^th August 2025.

On the other hand, it was obvious from the nature and purpose of the contract that it was intended to confer enjoyment on a special day, and that upset would be caused if the contract was breached in any significant way.

In addition, the First Claimant’s witness statement, dated 21^st July 2025, made clear, amongst other things, that the she was ‘distraught’, that that her plans for the wedding had been ruined, and that she was ‘terrified’ that the wedding would need to be cancelled.

As Ms Gray correctly submits, it is not reasonable to expect the Defendant to divine a claim to a remedy based on distress from its mention in the written evidence.

It is a bad habit, in fact, but one regularly indulged in, for parties to include matters in evidence which are not even peripherally relevant to the claim. Parties are not, however, routinely permitted to run claims from their evidence rather than their pleadings.

The importance of the First Claimant having set out those matters in evidence, however, is that the Defendant was not taken by surprise by late evidence of nonpecuniary loss at trial.

That is particularly relevant as this was not a case where the Defendant has submitted that it required time to investigate the new allegation and adduce evidence to gainsay it.

Ms Gray conceded that the Defendant did not have evidence on the issue. Any prejudice to the trial process would therefore be limited to the testing of the First Claimant’s evidence, and whether there had been a proper and fair opportunity to prepare submissions.

Although Ms Gray now submits that she was prejudiced during cross-

Ms Gray was well aware of the issue before the trial commenced, and could have cross-examined the Claimants had she wished to do so. It is apparently a complaint that the issue should have been determined at the start of trial so that she knew whether or not it was necessary to cross examine.

I consider that this is not a legitimate complaint. The transcript of proceedings evidences the fact that this issue was not raised with the Judge. Ms Gray expressed herself to be neutral as to whether the issue was to be determined before or after trial.

Naturally, cross-examination of the Claimants on the issue of hurt feelings, when there is no evidence to gainsay it, would not be expected to be a long or arduous affair.

Furthermore, there was no suggestion before trial, or in Ms Gray’s submissions after evidence, that her cross-examination was prejudiced, or that she had not had adequate time to take instructions and prepare cross-examination.

The first time this issue was raised was on appeal, therefore, the same was not a factor the Judge could have been expected to take into account. Similarly, there has been no suggestion at any time that Ms Gray was not properly able to prepare her submissions despite the late introduction of this issue.

The Defendant was, however, vexed by the late change in the Claimants’ case as a Part 36 offer had been made. The Judge was aware of the same, due to its mistaken inclusion in a chronology, but was not aware of its contents.

The Defendant contends, therefore, that it was prejudiced by the late change in the Claimants’ case as it was negotiating on a basis different to that put forward at trial and there was a prospect that this could have made a material difference. That was not, however, a ground of objection made to the Judge.

The issue here is not clearcut, and it would have been well within the court’s discretion to refuse permission to rely on unpleaded non-pecuniary losses when quantifying a statutory refund, and it is not beyond the imagination that another judge may have determined the issue that way.

The question, however, is whether the learned Judge’s decision here fell within the wide margin of the Judge’s discretion.

The Claimants did not offer any good reason for the lateness of the proposed amendment, and there was really no excuse for their very poor litigation conduct.

The issue was, however, clear and discrete and did not add any appreciable burden to the work required for trial, or result in work that had been done being wasted. It is difficult to identify any adverse effect on the conduct of this or other litigation, or the cost of the same.

This was not a case where the trial of the unpleaded issue necessitated an adjournment of the trial, and in fact, neither counsel suggested to the Judge that the trial may need to go off.

Further, the Defendant was not prejudiced in the preparation of its disclosure or evidence, and I have rejected the Defendant’s submission that it suffered prejudice in cross examination.

The Judge, having entered judgment in favour of the Claimants on this issue, plainly considered that it had merit. As I have found, he was partially correct in that assessment.

Given, therefore, that there is no reason to conclude that the fairness of the trial was in any way compromised by the introduction of this late change, I am satisfied that the Judge was entitled to consider it in the interests of justice for this dispute to be tried, and that his determination fell within the wide margin of his discretion.

For the reasons given, the appeal is allowed in relation to Issue 1. I consider, however, that the Claimants are entitled to have their claim for a price reduction requantified as opposed to receiving nothing under this head of loss.

Given that I have all the material evidence to be able to reach a proper conclusion as to the effect of the non-pecuniary factors, and that remitting the case will simply add an additional layer of costs to a modest claim, I indicated to the parties that it would, in essence, be proportionate for this Appeal Court to deal with such redetermination. Both parties agree.

Accordingly, I will deal with the same at a future consequentials hearing having heard submissions from both counsel.