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In the US, there is a Rule of Issue Preservation: you must raise ("preserve") an issue before the court to later have opportunity to appeal on that issue.

I am trying to find out whether this rule exists (and in what forms) in other common law jurisdictions, mostly interested in New Zealand.

Does it exist outside of the US? Is it part of common law, or codified?

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This is an old principle of the common law. In Connecticut Fire Insurance Co v Kavanagh [1892] AC 473, a civil case in which the court declined to consider a new point raised on appeal, the Privy Council said:

When a question of law is raised for the first time in a court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is not only competent but expedient, in the interests of justice, to entertain the plea. The expediency of adopting that course may be doubted, when the plea cannot be disposed of without. deciding nice questions of fact, in considering which the court of ultimate review is placed in a much less advantageous position than the courts below.

In Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, another civil case in which a new argument was not permitted to be raised on appeal, the High Court of Australia said:

The circumstances in which an appellate court will entertain a point not raised in the court below are well established. Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards.

In R v Brown [1993] 2 SCR 918, the Supreme Court of Canada allowed a criminal appeal on grounds not raised in the courts below. L'Heureux-Dubé J, while dissenting as to the outcome, summarised the principles:

Courts have long frowned on the practice of raising new arguments on appeal. The concerns are twofold: first, prejudice to the other side caused by the lack of opportunity to respond and adduce evidence at trial and second, the lack of a sufficient record upon which to make the findings of fact necessary to properly rule on the new issue … In addition, the general prohibition against new arguments on appeal supports the overarching societal interest in the finality of litigation in criminal matters … Despite this general rule, there have been exceptional cases in which courts have entertained issues on appeal for the first time.

The High Court of Australia referred to all of these decisions in Crampton v The Queen (2000) 206 CLR 161, another criminal appeal which succeeded on grounds not raised below.

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Does it exist outside of the US? Is it part of common law, or codified?

This rule is part of the shared common law heritage of common law countries, that is part of the basic structure of the legal system in these countries.

Historically it was a common law rule of practice. Many jurisdictions have not chosen to codify it, at least not in full, although I am sure that some countries include it as part of their court rules (indeed, most U.S. jurisdictions obliquely reference and modify parts of the common law rule about the need to file post-trial motions to preserve appellate issues in their trial court civil rules).

In general, it isn't uncommon for common law countries to adopt rules and statutes that state only a modification of a common law rule, without affirmatively stating the underlying common law rule that is being modified.

This said, there are a number of exceptions to the preservation rule which are probably not uniform in common law jurisdictions, although the deviations and elaborations of the common law rule are probably well defined in each common law jurisdiction in case law (because it comes up in literally every single reported appellate case).

Some of the notable exceptions to the requirement of preservation in the U.S. are for "plain error", "structural error", subject-matter jurisdiction (including standing, mootness, and lack of case or controversy), and for errors that aren't made until the final verdict in a case. In general, error must be preserved at trial in cases that are resolved at trial, but there is an exception in most jurisdictions for "motions in limine" which are evidence ruling made prior to trial in lieu of a ruling at trial.

Denial of a dispositive motion (e.g. a motion for summary judgment or motion to dismiss), prior to trial, will generally not preserve error, but a grant of a dispositive motion over objections, in full or in part, prior to trial will preserve error as the the portion of the case that is dismissed based upon that motion with respect to the issues raised in the objections to the dispositive motion.

Usually, matters not apparent from the record and only discovered after the fact of a trial can be preserved by raising them in a post-trial motion to set aside a judgment if timely made, but can't be raised on a direct appeal.

One of the reasons that case law is important to the rule of preservation is that a central issue in many cases is whether a particular statement made in court or in a written filing is sufficiently specific to preserve the issue in the manner that it is presented on appeal, which often involves a certain amount of gray area. Some jurisdictions are more strict than others regarding how specifically the action taken at trial that is alleged to have preserved the issue for appeal has to be to preserve an issue. Generally speaking, one in not limited on appeal to the specific legal authority offered up at trial in an appellate briefing. But if one makes an argument on appeal that is similar but has a different twist to it than the way the argument was articulated at trial, it becomes a judgment call.

For example, suppose that a claim is thrown out based upon the statute of frauds (i.e. because a contract wasn't in writing). If one argues one exception to the general rule (e.g. partial performance) at trial, can one argue another exception to the general rule (e.g. detrimental reliance or estoppel), that is similar but analytically distinct, on appeal? Case law gives us the answers.

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The article you link to says a litigant must preserve an issue for appellate review by raising it in the trial court, such that a failure to timely raise an issue waives review of that issue on appeal.

The general idea that you cannot raise, on appeal, some entirely new point which was not raised in the court below, is followed in England and Wales as well. You can ask for permission to raise a new point and the appeal court might allow it but they do not have to.

Of course, exactly what qualifies as a new point can be something of a grey area. You can't normally rely on section X of statute A if you have not raised it in the court below but if you have deployed arguments 1, 2 and 3, as to the meaning of section X of statute A in the court below, you can probably deploy, on appeal, some new arguments also pointing to the same meaning.

A recent case discussing this point is R (Humphries) v Parking and Traffic Appeals Service.

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  • Nice. So, is it part of common law in England/Wales, or codified?
    – Greendrake
    Commented Nov 6, 2021 at 10:24
  • "You often see it" sounds exciting. Any examples?
    – Greendrake
    Commented Nov 6, 2021 at 10:30
  • 1
    I have updated the answer with a link to a case which discusses it
    – Nemo
    Commented Nov 6, 2021 at 10:40

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