Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for a retrial.
Held: The Court of Appeal refused to receive the further evidence and dismissed the appeal. The court considered guidelines for the admission of new evidence on an appeal against the background of its availability at the first hearing. Such evidence might be admissible where a witness had made a material mistake and wished to correct it. If a witness had been bribed or coerced into telling a lie and wished to correct it, then a retrial might be appropriate.
Lord Denning said: ‘first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, 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; thirdly, the evidence must be such as is presumably to be believed, or, in other words, it must be apparently credible though it need not be incontrovertible.’
Denning, Parker, Hobson LJJ
[1954] 1 WLR 1489, [1954] 3 All ER 745, [1954] EWCA Civ 1
Bailii
England and Wales
Citing:
Cited – Braddock v Tillotsons Newspapers Ltd CA 1949
. .
Cited – Richardson v Fisher 5-Feb-1823
. .
Cited – Brown v Dean 1909
In the interest of society as a whole, litigation must come to an end, and ‘When a litigant has obtained judgment in a Court of justice . . he is by law entitled not to be deprived of that judgment without very solid grounds’.
Lord Loreburn LC . .
Cited by:
Applied – Hertfordshire Investments Ltd v Bubb and Another CA 25-Jul-2000
When considering an application for a re-hearing of a County Court action in order to consider and admit new evidence, the county court and High Court practice is now the same and the judge should consider the list of questions in Ladd v Marshall, . .
Cited – Taylor v Lawrence CA 4-Feb-2002
A party sought to re-open a judgment on the Court of Appeal after it had been perfected. A case had been tried before a judge. One party had asked for a different judge to be appointed, after the judge disclosed that he had been a client of the firm . .
Cited – Voaden v Champion ( ‘Baltic Surveyor’ ) CA 31-Jan-2002
The ‘Baltic Surveyor’ was lost at its moorings in a storm. A neighbouring ship had been negligently secured, and freed itself and sank the Baltic Surveyor. The owner appealed findings as to the value of the boat, and securing pontoon. She asserted . .
Applied – Dennis Pritchard Evans v Tiger Investments Limited, David John Moore CA 20-Feb-2002
The first defendant appealed a judgement that it was responsible to the claimant for a loan taken out by the second defendant, one of its shareholders. He had said it was for the company, and he had been found not personally responsible. Land had . .
Cited – Zarvos v Pradhan and another CA 7-Mar-2003
The landlord had occupied the premises as a restaurant, but subsequently let it to the respondents. The landlord opposed renewal of the tenancy saying that it intended to recommence trading, and now appealed a finding in favour of the tenant.
Cited – Regina v Immigration Appeal Tribunal ex parte Haile CA 2002
The adjudicator in the asylum application had made a crucial mistake about the identity of the political party in Ethiopia, with which the claimant was connected. The error was not drawn to the attention of the IAT. The evidence necessary to prove . .
Cited – Regina v Secretary of State for the Home Department ex parte Momin Ali CA 1984
The court discussed the applicability of Ladd -v Marshall principles as to the admission of new evidence in public law proceedings. Sir John Donaldson MR said: ‘the decision in Ladd v Marshall [1954] 1 WLR 1489 has as such no place in that context,’ . .
Applied – Lord and Another v Jessop CA 21-Apr-1999
The defendant appealed an award of damages for breach of a covenant for quiet enjoyment. He said there had been a licence only.
Held: The defendant was not to be allowed to admit fresh evidence on appeal. Appeal dismissed. . .
Cited – Couwenbergh v Valkova CA 27-May-2004
The deceased’s family lived in Europe. The defendant had moved in as tenant and had become confidante and friend over many years. A will had been prepared leaving everything to the defendant. That will had been challenged alleging incorrect . .
Cited – Regina v Secretary of State for the Home Department Ex Parte Onibiyo CA 28-Mar-1996
More than one asylum claim may be made, but they must be sufficiently different to justify a second claim. The court considered when an application could be treated as having been finally determined and when it was necessary for the Secretary of . .
Cited – In re K (Children) (Non-accidental injuries: Perpetrator: New Evidence) CA 27-Aug-2004
The children had been taken into care, and freed for adoption. The mother appealed saying the blame for non-accidental injury was misplaced. The court had not thought her responsible for the non-accidental injuries, but she had been unwilling to . .
Cited – Dr Giuseppe Ruscill, Council for the Regulation of Health Care Professionals v The General Medical Council and Another, The Council for the Regulation of Health Care Profesionals, The Nursing and Midwifery Council, Truscott CA 20-Oct-2004
The Council sought to refer to the High Court decisions to acquit the doctors of professional misconduct. The doctors argued that the power only existed for lenient sentences.
Held: The power to refer for undue leniency included the situation . .
Cited – Breeze v Ahmad CA 8-Mar-2005
The deceased’s widow claimed that the GP defendant had failed to ensure the proper treatment of the deceased, leading to his death. The court had found the defendant negligent, but that the negligence had not caused the death.
Held: The judge . .
Cited – Secretary of State for Trade and Industry v Paulin ChD 13-May-2005
The director sought to appeal an order disqualifying him form acting as a company director.
Held: The disqualification proceedings were properly charactised as insolvency proceedings and therefore there was no requirement for permission to . .
Cited – Fisher v Cadman and Others ChD 14-Jun-2005
The trial was concluded and the judgment had been given, but before the order was handed down, the defendants applied to be allowed to provide further evidence.
Held: The standards of Ladd v Marshall might be applied in such a situation, but . .
Cited – Couwenbergh v Valkova CA 28-Jan-2005
The will was challenged as to its due execution. Statements had been produced that the two witnesses had not been present when the will was signed, but those witnesses now said that they and not signed the statements.
Held: The evidence met . .
Cited – Williams v Attridge Solicitors (a Firm) CA 8-Jul-1997
The solicitor-defendants were seeking to prove a negative and to show at the very outset of the proceedings that the claim should be struck out without the need for any further inquiry. The court considered the admission of new evidence on an appeal . .
Cited – Rudra v National and Provincial Building Society; Stickley and Kent (Risk Management Unit) Ltd CA 22-Aug-1997
Before the auction, the estate agents had signed a contract to sell the house to the claimant. The Society, as mortgagees, said that the agents did not have authority to bind it, and that the contract did not sufficiently identify the property so as . .
Cited – Williams v The Queen PC 23-Nov-1998
(Saint Vincent and the Grenadines) The defendant was convicted of having killed his wife. He had killed his children but faced no charge on that issue. He complained of the admission of evidence showing that he had killed the children. In his . .
Cited – Riyad Bank and others v Ahli United Bank (Uk) Plc CA 23-Nov-2005
A renewed application for leave to appeal was made as regards a valuation element of the judgment. New expert evidence was sought to be admitted.
Held: Leave was refused: ‘the Court of Appeal should be particularly cautious where what is . .
Cited – Hamilton v Al Fayed (2) CA 13-Oct-2000
A third party who financially supported a court action had no right to be joined as a party even at hearings at which decisions would be made which might affect his potential liabilities. Those who financially support proceedings must acknowledge . .
Cited – Charlesworth v Road Relay 2001
It will generally only be in rare cases that the judge will exercise his discretion to admit new evidence after judgment has been handed down. . .
Cited – Parker v Synder, Siddons, Price CA 1-Nov-2005
Application for leave to appeal, and to adduce further evidence. The claim alleged that the defendants had purchased his company for a nominal down payment, but then run the company down.
Held: The appeal against the refusal to admit new . .
Cited – B, Regina (on the Application Of) v SS (Responsible Medical Officer) and others CA 26-Jan-2006
The applicant had been detained after a diagnosis of Bipolar Affective Disorder and convictions for rape. He had applied for discharge, but before the hearing the doctor had said he no longer opposed his release. After the hearing but before being . .
Cited – Prince Radu of Hohenzollern v Houston and Another QBD 7-Mar-2006
The claimant resided in Romania, and sought damages for libel. The magazine had obtained an order for security for costs. An offer had been made to cover the sum ordered, and no stifling could now happen.
Held: Any order for security costs in . .
Cited – Ashton , Regina v; Regina v Draz; Regina v O’Reilly CACD 5-Apr-2006
The court considered three appeals where there had been a procedural irregularity, and where the judge had taken some step to overcome that irregularity. In two cases the Crown Court judge had reconstituted himself as a district judge to correct a . .
Cited – Banks and Another v Cox and Another CA 17-Jul-2000
The court considered the principles of admitting new evidence on appeal after the introduction of the new rules. Moritt LJ: ‘In my view the principles reflecting in the rules in Ladd v Marshall [1954] 1 WLR 1489 remain relevant to any application . .
Cited – Capital Bank Plc v Mcdiarmid CA 7-Feb-2006
The defendant was said to have guaranteed a hire purchase agreement. The principle, a company, had become insolvent. He denied having signed the document.
Held: Leave to appeal should not be granted. The court considered further evidence. That . .
Cited – Goulding and Goulding v James and Daniel CA 10-Dec-1996
The family sought approval of a proposed variation of the will to make best advantage of tax allowances. Because the beneficial interests of children would be affected, the court’s approval was necessary. The judge had refused to approve the . .
Cited – Electra Private Equity Partners (a Limited Partnership) and others v KPMG Peat Marwick (a Firm) and others CA 23-Apr-1999
In interlocutory appeals some relaxation of the strictness of the conditions set down in Ladd v Marshall might be appropriate, according to the nature of the interlocutory hearing and the individual circumstances of the case. That would particularly . .
Cited – Al-Koronky and Another v Time-Life Entertainment Group Ltd and Another CA 28-Jul-2006
The claimants sought damages after publication of articles alleging severe mistreatment of a servant. One defendant had settled and apologised, but the defendant publisher and author had persisted with the allegation. The claimants who lived in . .
Cited – Thune v London Properties Limited CA 1990
The court considered the applicability of the principles in Ladd v Marshall to an appeal from an interlocutory order being an application for security for costs.
Held: The application to admit fresh evidence was refused. Bingham LJ: ‘There is . .
Cited – Livingstone v The Adjudication Panel for England Admn 19-Oct-2006
The claimant challenged a finding that as Mayor of London offensive remarks he had made to a journalist as he was pursued leaving a private party had brought his office into disrepute.
Held: The appeal succeeded. Though the remarks may have . .
Cited – Ali v Lane and Another CA 21-Nov-2006
The parties disputed the boundary between their neighbouring plots of land.
Held: In the modern law the conveyance (parchment or not) is undoubtedly the starting point. Where information contained in the conveyance is unclear or ambiguous, it . .
Cited – Ferguson v Welsh HL 29-Oct-1987
The plaintiff sought damages for personal injury. A council had engaged a competent contractor to carry out demolition works. Unknown to the council, the contractor sub-contracted the works to two brothers who worked in a highly dangerous manner. . .
Cited – Berezovsky v Forbes Inc and Michaels; Glouchkov v Same HL 16-May-2000
Plaintiffs who lived in Russia sought damages for defamation against an American magazine with a small distribution in England. Both plaintiffs had real connections with and reputations in England. A judgment in Russia would do nothing to repair the . .
Cited – Zambia v Meer Care and Desai (A Firm) and others CA 9-Jul-2008
The claimant sought to allege fraud by its former president, and began proceedings to recover payments it said were fraudulent, including against a defendant Taylor in Switzerland, who now said that no letter before action or other explanation . .
Cited – David v Charlemagne CA 1996
The rule in Ladd v Marshall did not apply on an appeal from the refusal of an application to set aside a default judgment, the additional evidence being sought to be introduced only on appeal, not on the original application, because there had been . .
Cited – Judge v Judge and others CA 19-Dec-2008
The wife appealed against an order refusing to set aside an earlier order for ancillary relief in her divorce proeedings, arguing that it had been made under a mistake. The sum available for division had had deducted an expected liabiliity to the . .
Cited – Lifely v Lifely CA 30-Jul-2008
Unusually the court of appeal heard fresh oral evidence to assist in determing the appeal. Diaries had been discovered only after the trial, and the contents were of direct relevance. Ladd v Marshall might allow oral evidence on appeal in . .
Cited – Wileman v Minilec Engineering Ltd 1988
The principles of Ladd v Marshall apply also in employment tribunal proceedings. . .
Cited – Todd (T/A Hygia Professional Training) v Cutter EAT 13-Jul-2007
EAT PRACTICE AND PROCEDURE
Perversity
Appeal by Respondent based on an application for fresh evidence, which was clearly material and credible, but which did not satisfy the third Ladd v Marshall test . .
Cited – Webster (the Parents) v Norfolk County Council and others CA 11-Feb-2009
Four brothers and sisters had been adopted after the parents had been found to have abused them. The parents now had expert evidence that the injuries may have been the result of scurvy, and sought leave to appeal.
Held: Leave was refused. . .
Cited – Langdale v Danby HL 1982
Summary judgment had been given under Order 86. A solicitor had acted gratuitously and in good faith for the other party in the sale of a cottage, subject to an option to repurchase the cottage at the same price after 21 years. He obtained summary . .
Cited – Rudra v Abbey National Plc and Stickley and Kent (Risk Management Unit) Limited CA 26-Feb-1998
The parties disputed whether a contract had been entered into for the sale of land, and whether new evidence could be entered on an appeal against a strike out. The estate agents had signed a contract as agents for the mortgagee in possession, but . .
Approved – Skone v Skone and Another HL 1971
The husband appealed, seeking a new trial of a divorce petition following the discovery of fresh evidence consisting of a bundle of love letters from the co-respondent to the wife clearly showing that, contrary to his sworn evidence, he had . .
Cited – Owens v Noble CA 10-Mar-2010
The respondent had been awarded substantial damages after an accident for which the appellant was responsible. The appellant now said that the claimant had exaggerated his injuries and misled the judge. The defendant argued that the correct approach . .
Cited – Hamilton v Al Fayed CA 21-Dec-2000
The claimant sought an order saying that his counsel had discarded confidential documents which were retrieved from his dustbin by a Mr Pell who then sold them to his opponent who had used them to obtain an unfair advantage.
Lord Phillips MR . .
Cited – Roe and Another v Robert McGregor and Sons Ltd; Bills v Roe CA 1968
The plaintiff was driving a van at night. He didn’t see a ‘road closed’ sign erected by the defendant contractors, and proceede down a 30 ft bank injuring himself and his passenger. He said the contractors’ the sign was inadequate and that he had . .
Cited – Westlaw Services Ltd and Another v Boddy CA 30-Jul-2010
The claimant said that it was due sums from the estate of the deceased solicitor. The executors said that the agreement was unlawful in that it had amounted to an agreement to share fees with an unauthorised body.
Held: The agreement was . .
Cited – Kojima v HSBC Bank Plc ChD 22-Mar-2011
The defendant had been found to owe money to the bank. In order to avoid damaging his career he agreed to execute a charge to secure the judgment. He now sought release from that order, and to withdraw his admission of the debt. He had acted in . .
Cited – Secretary of State for Communities and Local Government and Another v Welwyn Hatfield Borough Council SC 6-Apr-2011
The land-owner had planning permission to erect a barn, conditional on its use for agricultural purposes. He built inside it a house and lived there from 2002. In 2006. He then applied for a certificate of lawful use. The inspector allowed it, and . .
Cited – Dickinson and Others v Tesco Plc and Others CA 4-Feb-2013
The court considered the practice on claims for hire of a replacement car on credit terms after a road traffic accident. The defendant resisted paying for the credit where the claimant could have hired without a credit arrangement. The defendants . .
Cited – Khudados v Leggate and others EAT 16-Feb-2005
Application was made to make extensive amendments to the notice of appeal.
Held: The application was refused. The EAT practice guide required an application for an amendment to be made as soon as its necessity became apparent. The applicant . .
Cited – Campbell v Daejan Properties Ltd CA 20-Nov-2012
The tenant appealed against an order requiring the amendment of what was found to be an obvious error in the lease as to the responsibility of the lessor to make repairs to certain walls and rooves, and the apportionment of liability for payment of . .
Cited – Muscat v Health Professions Council CA 21-Oct-2009
A radiographer had asked the court to reconsider its verdict in a disciplinary action. He was said to have caused two female patients (on different occasions) to remove their clothing for the purposes of carrying out a scan, when it was not . .
Cited – TZ v General Medical Council Admn 17-Apr-2015
Appeal against decision of a Fitness to Practise Panel holding that the Appellant’s fitness to practise as a medical practitioner was impaired by reason of his misconduct. It directed that his name be erased from the Medical Register under section . .
Cited – Tamiz v Google Inc CA 14-Feb-2013
The respondent hosted a blogs platform. One of its user’s blogs was said by the appellant to have been defamatory. On discovery the material had been removed quickly. The claimant now appealed against his claim being struck out. He argued as to: (1) . .
Applied – Green v Broadcasting Corporation of New Zealand 22-Sep-1988
(Court of Appeal of New Zealand) The plaintiff had created a hugely sucessful TV programme in the UK, called Opportunity Knocks. He now appealed against rejection of his claim in copyright alleging that the defendant had copied the format, and also . .
Cited – Ilott v The Blue Cross and Others SC 15-Mar-2017
What is reasonable provision for daughter
The deceased had left her estate in her will to several animal charities. The claimant, her daughter, had been estranged from her mother for many years, and sought reasonable provision from her estate under the 1975 Act. The district judge had . .
Cited – Hayward v Zurich Insurance Company Plc SC 27-Jul-2016
The claimant had won a personal injury case and the matter had been settled with a substantial payout by the appellant insurance company. The company now said that the claimant had grossly exaggerated his injury, and indeed wasfiully recovered at . .
Cited – Gohil v Gohil (No 2) CA 13-Mar-2014
The parties had agreed financial provision on their divorce, but W subsequently discovered what she said was material non-disclosure by H. The court was now asked whether a court of first instance had jurisdiction to set aside a final financial . .
Cited – Gohil v Gohil SC 14-Oct-2015
The Court was asked ‘Do the principles referable to the admissibility of fresh evidence on appeal, as propounded in the decision of the Court of Appeal in Ladd v Marshall [1954] 1 WLR 1489, have any relevance to the determination of a spouse’s . .
Cited – Nicholls v Coroner for City of Liverpool Admn 8-Nov-2001
As the deceased was arrested he swallowed something. He was examined by a doctor and denied that he had swallowed drugs, but his condition deteriorated and he died at hospital. The coroner refused to admit the evidence of a professor who was highly . .
Lists of cited by and citing cases may be incomplete.
Evidence, Litigation Practice
Leading Case
Updated: 10 November 2021; Ref: scu.180505