BAL v KNZ

By an order dated 2 December 2024 HHJ Robinson (“the Judge”) dismissed the Appellant’s claim and application for an injunction against the Respondent.

The Appellant had based her claim and application on a series of incidents of harassment said to have taken place up to and including 26 June 2024.

The Appellant appeals against the Judge’s order, with permission granted by Dias J after an oral hearing on 14 May 2025. The Respondent invited this court to uphold the Judge’s order for the reasons he gave.

In correspondence with the court after the grant of permission, the Appellant effectively made two applications to admit fresh evidence on the appeal.

The appeal was heard on 17 February 2026. During the hearing I indicated that I was refusing the applications to admit fresh evidence. At the end of the hearing, I indicated that I would allow the appeal. These are my reasons for doing so.

The Appellant was in a relationship with a Mr X between April 2000 and November 2004 but has maintained some contact with him since then. She has described being the victim of serious sexual violence during that relationship, up to and including in December 2017. She contends that her child is the product of a rape by Mr X. The Respondent is the son of Mr X.

The appellant contends that since 2020 Mr X and various members of his family, including the Respondent, have subjected her to a campaign of harassment which has had a very significant effect on her life and her health. Medical and other safeguarding evidence provided by the Appellant provides some support for this.

On 27 February 2023 the Appellant obtained a non-molestation in Middlesbrough Family Court under section 42 of the Family Law Act 1996 (“the FLA”) against Mr X. This has been extended on several occasions and currently runs until 27 February 2026. The Appellant contends that Mr X has breached the non-molestation order on several occasions.

On 24 September 2024, the Appellant issued a claim in Middlesbrough County Court under the Protection From Harassment Act 1997 (“the PHA”). She sought an injunction against the Respondent. She had been advised that because she had not been in a relationship with the Respondent, she could not pursue an application under the FLA in respect of him.

Various case management directions were given in respect of the claim. Although the Respondent filed an Acknowledgment of Service indicating that he intended to contest the claim, he did not file any evidence in response to it.

The claim and application came before the Judge on 2 December 2024. The Respondent did not attend the hearing and the Judge proceeded in his absence. The Appellant gave oral evidence, adopting her witness statement dated 24 October 2024. I do not have a transcript of her evidence but she indicated during the appeal hearing that she was asked a small number of questions by the Judge, which she answered.

The Appellant also played a recording to the Judge which she contended was the Respondent speaking, reflecting the incident described by the Judge at [13] of the judgment: see [15] below. The Appellant also contended that the Respondent had created fake email / social media accounts and had used the word “slag” in messages from those accounts to her.

In his judgment at [9], the Judge indicated that he had found the Appellant to be a credible witness. He observed that many of the incidents to which she referred had happened some time before, and perhaps because of that, the Appellant had not been able to recall specific details about each incident.

At [11], the Judge rightly identified that by section 1(1) of the PHA:

“A person must not pursue a course of conduct –

(a)

which amounts to harassment of another, and

(b)

which he knows or ought to know amounts to harassment of the other”.

He then made the following findings on the evidence:

“12…Firstly, in September 2021 the Respondent shouted “slag” out of the window of a car that was being driven by [his] mother and stuck his fingers up at the [Appellant].

13…next…approximately one or two years ago, the date of which I cannot be clear about given the uncertainty of the date in the [Appellant]’s evidence in this regard, the respondent made threats to the [Appellant] stating in which he made threats to this effect: “I know where you live, keep an eye on your windows tonight and keep an eye on your daughter’s car”…

14.

I make these two findings accepting the [Appellant]’s evidence but also accepting the authenticity of the voice recording that is before the Court today. Whilst I have not heard the Respondent’s voice I accept the [Appellant]’s evidence that it was the Respondent’s voice.

15.

I further find that at some point in or around February 2024 the Respondent, while sitting in a white van outside Marlborough Mosque, again stuck his fingers up and made hand gestures towards the applicant stop this finding is made by again accepting the evidence of the [Appellant] in that regard.

16.

I make no findings in relation to the social media accounts still I am not satisfied that the evidence that the appellant has submitted tips the balance of probabilities to show that they have been created by the respondents stop on the face of the evidence before me there is only superficial evidence from the appellant to link the respondent to it, based on the use of certain words stop in my view that fails to discharge the burden of proof”.

The Judge then considered whether or not these three incidents amounted to a “course of conduct” under the PHA. He observed that the space between the three incidents was “quite lengthy”, with “the first going back to 2021, the next being ‘one or two years ago’…and the other being in February 2024”. The Judge found that the three incidents were “seemingly isolated” and they did not “connect sufficiently”. He observed that two of the incidents appeared to have occurred “more opportunistically” by the Respondent rather than in him actively seeking the Appellant. For those reasons he found that the “course of conduct” test was not satisfied: [18]-[19].

If he was wrong about that, he explained that he would still not have granted an injunction because the last allegation was in February 2024 and given the passage of time since then, he did not consider that it would be just and convenient to order an injunction: [20].

The Judge made clear that he was setting out his findings about the three incidents in the order, so that if matters escalated in the future, the Appellant would be able to rely on the allegations found proven by the court and would not have to rehearse those matters again: [21].

On the Appellant’s case, matters did escalate in the latter part of 2025. She provided evidence suggesting that Mr X was arrested for a further alleged breach of the non-molestation order and that shortly thereafter, in the early hours of 24 December 2025, her partner’s car windows were smashed. She contends that the Respondent was responsible for this and provided CCTV evidence purporting to show this.

On 29 December 2025 she issued a fresh application seeking for an injunction in the County Court.

On 31 January 2026 there was a hearing of the application before Deputy District Judge Armstrong. Reference was made to the fact that appeal was due to be heard on 17 February 2026. On that basis the deputy District Judge adjourned the Claimant's application to 24 February 2026 to allow the appeal to take place.

In advance of the hearing the Appellant had told the court that she was very fearful of the Respondent, such that she wished to attend the hearing by video. By an order sealed on 15 August 2025, HHJ Gargan, sitting as a Judge of the High Court, directed that the appeal could proceed by way of a hybrid hearing, and that either party could attend remotely if they wished to do so, provided they complied with certain conditions in terms of giving the necessary information to the court staff. The Appellant complied with these conditions. The Respondent did not.

The Respondent had not attended the hearing before the Judge. He had not filed a Respondent’s Notice or any skeleton argument on the appeal. In fact there was no evidence on the court file that he had engaged with the appeal proceedings at all.

Accordingly, I directed that the hearing would proceed entirely remotely and efforts were made to contact the Respondent via the telephone number he had provided to the court. That telephone number was, at that time, being used by his father, Mr X. However, Mr X did not make this clear to court staff nor provide the court staff with any alternative number for the Respondent, albeit that he expressed some confusion at what the hearing was about.

It was only when Mr X, not the Respondent, attended the hearing that the position became clear. I asked Mr X where the Respondent was. I explained that I was minded to proceed in his absence because court records showed that a notice of the hearing, and various other court orders, had been posted to the Respondent by court staff at an address which the Appellant, and Mr X, confirmed was correct for him. Moreover, at the 31 January 2026 County Court hearing, which the Respondent attended, specific reference had been made to the fact that appeal was due to be heard on 17 February 2026 by video: see [21] above. I was therefore satisfied that the Respondent was on notice of the hearing.

Mr X told me that the Respondent was in bed, unwell as a result of some kind of food poisoning and unable to attend. I asked him to locate the Respondent and see if he was well enough to speak to the court. The Respondent then joined the hearing by telephone. He said he was well enough to attend and indeed went on to make clear and lucid submissions.

Although I was satisfied that the Respondent was aware of the hearing on 17 February 2026, it became clear that he had not been served with any of the appeal papers due to the combination of a misunderstanding between the Appellant and court staff about who was responsible for service; and because many of the most recent documents which the Appellant had emailed to the court included sensitive medical information which court staff did not feel comfortable disclosing to the Respondent without a court order.

Arrangements were therefore made for the Appellant to be served with the key documents on the appeal by e-mail at the outset of the hearing. Middlesborough County Court bailiffs also delivered a hard copy to him at home. I am very grateful to them for their assistance. The Respondent was given the opportunity to consider the key papers while I heard submissions from the Appellant on her fresh evidence applications. Given the relative brevity of the judgment under appeal and the narrowness of the issues on the appeal, I was satisfied that the Appellant had had sufficient opportunity to consider the papers and make submissions. He confirmed that this was the case.

Under CPR 52.21(2)(b), unless it orders otherwise, the appeal court will not receive evidence which was not before the lower court.

Prior to May 2000, the Court of Appeal had power to receive further evidence, but could admit such evidence only on “special grounds”, which, subject to certain established exceptions, were those set out in Ladd v Marshall [1954] 1 WLR 1489, CA. In Hertfordshire Investments Ltd v Bubb [2000] 1 WLR 2318, CA, the Court of Appeal observed that CPR 52.21(2) did not retain the former requirement for special grounds, but concluded that the principles reflected in Ladd v Marshall remain relevant. Those principles are that: (1) the evidence could not have been obtained with reasonable diligence for use at the trial; (2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and (3) the evidence must be such as is presumably to be believed; it must be apparently credible, though it need not be incontrovertible: see Denning LJ at 1491.

The White Book at paragraph 52.21.3 makes clear that an appellate court should be reluctant to allow evidence relating to a change in circumstances since the hearing or trial: 

“Rule 52.21(2), unlike its predecessor (RSC Ord.59 r.10(2)), contains no qualification concerning matters which have occurred after the date of the trial or hearing. Under the former law, the express (but exceptional) power to admit further evidence as to matters occurring after the date of the trial or hearing was exercised sparingly and with due regard to the need for finality in litigation. See Hughes v Singh Times, 21 April 1989, CA. The position under the CPR was summarised in R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982; [2005] INLR 633, CA, at [34]-[37]. It remains the case that evidence of changed circumstances since the date of the original decision should only be sparingly admitted. Examples of cases in which it was appropriate to admit such evidence were given by Brooke LJ at [34]”.

In R (Iran), Brooke LJ held as follows:

“34.

In the ordinary run of litigation in the courts the legal rights of the parties fall to be decided in accordance with the facts as they appear to the first instance judge. There is little room for the admission of evidence of changed circumstances at the hearing of an appeal. From time to time, however, such evidence was admitted. Case law reveals the following examples under the pre-CPR regime:

i)

Where there has been a change of circumstances after the granting of an interlocutory injunction such that if the new circumstances had been before the judge they would have justified the variation of the injunction (Hadmor Productions Ltd v Hamilton [1983] 1 AC 191, 220D);

ii)

More generally, where a change of circumstances since the trial has falsified the basis on which discretionary relief was granted (Attorney General v Birmingham, Tame and Rees District Drainage Board [1912] AC 788, 802);

iii)

Where the passage of time since a trial has falsified a conclusion of the trial court based on complaints of delay (EMA v ACAS (No 2) [1980] 1 WLR 302, 320F);

iv)

From time to time, on the basis that the court should not speculate where it knows, damages will be assessed on the facts as they appear at the date of the appeal hearing (Curwen v Jones [1963] 1 WLR 748, 753; Lim Poh Choo v Camden and Islington AHA [1980] AC 174, 194E).

35.

In Murphy v Stone-Wallwork (Charlton) Ltd [1969] 1 WLR 1023 HL it was said that the power to admit fresh evidence which showed that damages had been assessed on a false basis should be exercised very sparingly in view of the importance of the principle of finality in litigation (see Lord Pearce at p 1028B and Lord Upjohn at p 1031A).

36.

RSC Order 59 Rule 10, which was the rule in force in the Court of Appeal prior to 2^nd May 2000, provided that:

“(2)

The Court of Appeal shall have power to receive further evidence on questions of fact…but in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits, no such further evidence (other than evidence as to matters which have occurred since the date of the trial or hearing) shall be admitted except on special grounds. (emphasis added)

(3)

The Court of Appeal shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been given or made, and to make such further or other order as the case may require.”

37.

It is noticeable that the court’s willingness to admit evidence of changed circumstances was exercised in particular when it was determining whether a restraint as to future conduct should be retained in force or lifted, or whether an award of damages which contained a significant element of crystal-gazing should be altered when more of the material facts had become known. In all these cases the court possessed an appellate jurisdiction over both fact and law”.

In this case, the Appellant sought to reduce fresh evidence in two respects: (i) a witness statement dated 11 June 2025, supported by exhibits SM/1-SM/6; and (ii) various loose documents relating to events in November and December 2025.

I decided not to admit the witness statement dated 11 June 2025 and exhibits for two reasons.

First, the vast majority of it comprised further evidence of the incidents which the Judge had found proven or which pre-dated the hearing before him. On that basis the first Ladd v Marshall criterion was not met: there was no reason why this evidence could not have been obtained with reasonable diligence for use at the trial.

Second, to the extent that it provided evidence of events since the hearing before the Judge, namely the further extension of the non-molestation order that had taken place on 21 February 2025, this did not fall within any of the categories set out by Brooke LJ in R (Iran) at [34].

For the same reason I decided not to admit the various loose documents relating to events in November and December 2025.

I made clear to the Appellant that the fact that I had not admitted the evidence of events in 2025 as fresh evidence in the appeal did not preclude her from relying on the this evidence in the outstanding County Court claim.

CPR 52.21(3) provides that the appeal court will allow an appeal where the decision of the lower court was (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

In CPR 52.21(3)(a), “wrong” means that the court below (i) erred in law or (ii) erred in fact or (iii) erred (to the appropriate extent) in the exercise of its discretion: White Book 2025, at paragraph 52.21.5.

Neither party took issue with the factual findings the Judge made with respect to the three incidents he found proved, addressed at [12], [13] and [15] of the judgment (see [15] above). The Judge described these at C. a, b and c of his order.

The Appellant advanced a sole ground of appeal to the effect that the Judge had failed to take into account the evidence she had provided about other incidents. In particular, she contended that the Judge had failed to consider her allegations about an incident on 3 April 2024.

In granting the Appellant permission to appeal, Dias J made clear that it was also arguable that the Judge had failed to take into account (i) the allegations the Appellant had made about an incident of 29 September 2021; (ii) at least some of the social media messages relied upon by the Appellant; and (iii) the issue of whether some of the incidents involving the Respondent’s family had been authorised, encouraged or instigated by him.

The Respondent submitted that it was clear from the judgment that the Judge had given careful consideration to all the evidence; and that he was right to make the limited findings he did.

I have some sympathy with the Judge because I suspect that the material placed before him by the Appellant was not as organised as the court requires. I say this because the papers in this appeal were very disorganised, in various respects incomplete or duplicative, blurred and hard to read. Despite various case management orders, they were not organised by the Appellant into one composite bundle.

However, having reviewed the evidence placed before the Judge, I have concluded that his judgment was wrong for the purposes of CPR 52.21(3) in that he did not address some of the allegations that the Appellant had made.

First, the Judge did not address the allegation the Appellant had made at paragraph 8 of, and in exhibit SM/5 to, her witness statement dated 24 October 2024. There, she had described an incident on 3 March 2024. She alleged that the Respondent had swerved his vehicle towards her in a deliberate attempt to scare and intimidate her. She contended that the next day, Mr X had made a false complaint to the police to the effect that she had been following and harassing him when it was the Respondent who had acted in this way.

Second, Dias J was correct to identify that the Judge did not address the allegation that the Appellant had made at paragraph 6 of, and in exhibit SM/3 to, her witness statement dated 24 October 2024. There, she had described an incident on 29 September 2021. She alleged that the Respondent’s mother (Mr X’s wife) drove past her, shouting, and reversed her car; that the Respondent started filming her on his mobile phone; that the Respondent’s mother stuck two fingers up at her; and that the Respondent then got out of the car and was on his mobile phone. She contended that he then made a false complaint to the police to the effect that she had tried to run him over when she had not done so.

Both of these allegations were part of the pattern of harassment on which the Appellant relied for the purposes of her injunction application. Accordingly they were issues which the Judge had to determine and/or were material considerations he had to take into account.

The alleged incident on 3 March 2024 was a potentially particularly serious one. Both allegations involved similar features in that the Appellant alleged that Mr X and the Respondent had made false complaints to the police about her conduct. Both allegations involved suggestions that the Respondent was acting together with members of his family to harass the Appellant, and thus that the argument that he had authorised, encouraged or instigated his family members to act in this way.

Had the Judge determined either or both of these issues in the Appellant’s favour, he might have formed a different view about the overall gravity of the case. This might have led the Judge to give different consideration to the allegation the Appellant had made about the social media accounts. He might have reached a different conclusion as to whether a “course of conduct” was made out for the purposes of the Appellant’s PHA claim; and he might have concluded that the balance was tipped in favour of the need for an injunction. For those reasons the failure to take these allegations into account was material to the outcome.

Accordingly, for these reasons, the Appellant’s appeal is allowed.

The order of HHJ Robinson dated 2 December 2024 is set aside under CPR 52.20(2)(a), save that the factual findings with respect to the incidents described in C. a, b and c of the order, addressed at [12]-[15] of the judgment, are preserved.

A new trial is ordered under CPR 52.20(2)(c) of the allegations related to 29 September 2021 and 3 March 2024 made at paragraphs 6 and 8 of, and in exhibits SM/3 and SM/5 to, the Appellant’s witness statement dated 24 October 2024.

This trial should be consolidated with the Appellant’s further application for an injunction currently before the County Court at Middlesbrough in claim M00MB865.

The Appellant made clear that she would wish to rely on the fresh evidence she submitted in this appeal in the County Court. It was not clear whether she has already submitted it to the County Court.

The County Court has sought an update on the outcome of this appeal. Accordingly in addition to providing the orders on this appeal and the judgment to the County Court, a bundle is being prepared of the evidence provided by the Appellant in this appeal (in a more accessible manner than was presented to this court), in the hope of assisting the County Court. This should put the County Court in the best position to determine whether, in light of the preserved findings, the determination of the issues referred to under [54] above, and the determination of the more recent allegations the Appellant has made, an injunction against the Respondent is now appropriate.