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 had very little to drink and when counsel for the defendants sought to cross-examine him to suggest that he was drunk, the judge would not allow it. The judge found in favour of the driver and his passenger. Later, the contractors discovered credible evidence that the driver had been drunk.
Held: The contractors’ appeal succeeded after fresh evidence from a passenger and a publican was allowed which showed that he had been drinking. The judgment was set aside, and a re-hearing ordered. The contractors’ solicitors didn’t interview the passenger supposing, reasonably, that he would be unlikely to give evidence against his friend the driver.
Harman LJ said: ‘It is by no means to be taken on these motions that this evidence is likely in the end to be believed. These motions are brought for leave to adduce this extra evidence. But in my judgment that would be, in a case of this sort, a hopelessly inconvenient course to take, because quite clearly, if Harrison and the publican are to have their evidence admitted, evidence to rebut what they say must also be admitted and there must be evidence on one side and the other which will very greatly alter the whole shape of the testimony. The only course, I think, for this court, if it thinks that it should do anything, is to order a new trial and I think that counsel in the end conceded really that that was the proper course to take if the court were moved to take any course.’
As to the alleged failing of the solicitor, Harman LJ said: ‘It was said that the contractors’ solicitor knew that [the passenger] had been in the car: she had only, as it is said, to go to him, ask him for a statement, and the whole matter would have come out at a much earlier stage, and there would have been no need to come at this date and ask for the admission of fresh evidence. It is said that the solicitor made an error of judgment which, although perhaps understandable, be it said, was not excusable in the sense that she could have been said to have acted with reasonable diligence. In my opinion, that charge entirely fails. I cannot see that there was any default at all on the part of the very experienced solicitor acting for the contractors in not approaching [the passenger]. He was a man directly in the other camp. He might be expected at any moment to start proceedings himself for damages, although he had not done so nor sent any letter making any claim hitherto. He was a person who was unlikely in the extreme, it might reasonably be supposed, to be willing to give evidence against his friends in the car that they were all drunk at the time. And I cannot think that it was any part of the duty of this lady acting as solicitor to the contractors to the contractors to go and try to worm something out of [the passenger].’
Judges:
Harman LJ
Citations:
[1968] 1 WLR 925, [1968] 2 All ER 636
Citing:
Cited – Ladd v Marshall CA 29-Nov-1954
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 . .
Cited by:
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 – Turcu v News Group Newspaper Ltd CA 26-May-2006
The appellant had failed in his action for damages against the newspaper which had accused him of a plot to kidnap the wife of an England footballer. He now sought leave to appeal.
Held: Evidence unavailable at the trial now suggested that the . .
Lists of cited by and citing cases may be incomplete.
Professional Negligence, Litigation Practice
Updated: 02 May 2022; Ref: scu.414952