Public interest justifies admission of new evidence on re-trial (Court of Appeal)
The Court of Appeal considered an appeal of a refusal to admit new evidence for a new trial in Singh and others v Habib and another  EWCA Civ 599 (12 April 2011). (Free access).
The Court of Appeal has permitted fresh evidence for a re-trial on the basis of the public interest of preventing fraudulent claims. The claim was a road traffic accident claim and the district judge's decision after the original trial had been finely balanced, but the new evidence tipped the balance the other way. The fresh evidence included evidence from the defendant driver that the accident had not occurred and from another person that the defendant had been promised a share of the claimants' damages.
The decision confirms that the appeal court should be reluctant to shut out fresh evidence when there is public interest and the Ladd v Marshall  EWCA Civ 1 conditions are flexible enough to permit this. They are not "a straitjacket". (Singh v Habib  EWCA Civ 599.)Close speedread
Fresh evidence will not be permitted on an appeal, unless the appeal court has granted permission (CPR 52.11(2)).
On an application for permission to adduce new evidence, the appeal court will consider the three requirements set out in Ladd v Marshall  EWCA Civ 1, namely that the fresh evidence:
Could not have been obtained with reasonable diligence for use at the original trial.
Would probably have an important influence on the result of the case, although it need not be decisive.
Is credible, although not incontrovertible.
For more information, see Practice note, Appeals: an overview: Evidence in appeals (www.practicallaw.com/3-203-8882).
Three claimants brought a road traffic accident claim seeking damages for personal injury. The basis of the claim was that they were passengers in a car driven by the first defendant (D), which failed to stop and collided with a stationary vehicle.
D was wholly unco-operative with his insurers, who were the second defendants, and did not give evidence when the claim came to trial. Although the district judge regarded two out of the three claimants to be unsatisfactory witnesses, he nevertheless found in favour of the claimants and awarded each of them damages.
After judgment, D contacted his insurers' solicitors and gave a statement to an enquiry agent saying that the alleged accident never took place. His vehicle had been involved in an accident the day of the alleged incident, but later on and that was the only accident in which he had been involved. The enquiry agent was also told by a woman associated with him that he had been promised £750 from each of the claimants for making a claim for an accident which never took place. It was also discovered from a search of the internet that D's telephone number was the same as the telephone number of the claims company involved in the matter, Advanced Claims.
The insurers appealed and applied for permission to adduce fresh evidence, being the evidence of the enquiry agent and the evidence about the telephone number.
HHJ Grenfell refused the application and the appeal was dismissed. He did not consider that the Ladd v Marshall conditions were made out. This was because D's evidence to the enquiry agent was plainly not credible (he had previously given a statement to the effect that the accident never happened and then withdrawn it) and it seemed unlikely that he would be willing to give evidence in court. Also, the claimants had survived vigorous cross-examination at the original trial. Although the district judge had his suspicions, in the end he was impressed by one claimant's evidence. His judgment was not undermined by the new evidence. Ladd v Marshall required there to be compelling fresh evidence for a re-trial.
The insurers appealed.
The Court of Appeal allowed the appeal and directed that the matter be re-heard by another circuit judge.
Sir Anthony May, President of the Queen's Bench Division, having outlined the law guiding the court's discretion to permit fresh evidence said:
"I should say that in my judgment this court will be particularly acute to consider questions of admitting fresh evidence when the public interest in the prevention, so far as possible, of fraudulent road traffic claims comes before it."
He went on to say that the Ladd v Marshall considerations, while important, were not to be taken "as a straitjacket".
In this case, the public interest was sufficient to permit the fresh evidence. As there was widespread concern about fraudulent road traffic claims, there was a strong public interest in a full investigation on all the evidence.
Sir Anthony May was not swayed by the arguments about D's credibility or whether the insurers should have obtained the evidence about the telephone number for the original trial. While there was an argument about D's credibility, there was no argument about the enquiry agent's credibility and his evidence had not been available for the original trial. Additionally, it would be "a counsel of perfection" to suppose that the solicitors should have gone in search of a telephone number in the circumstances which existed before the trial. Fresh statements, which had been volunteered by the claimants, would also be available for a re-trial to set out their position.
The fresh evidence had to be admitted because it had an important influence on an appreciation of the outcome of the proceedings. There were some outstanding features which, when the new evidence was taken into account, were capable of tipping the balance the other way. These included that:
D did not report the accident to his insurers and had not co-operated with them.
D undoubtedly did have an accident on the day in question and evidence about that accident said that the damage to the vehicle was consistent with that accident alone and did not indicate any earlier accident.
Two of the three claimants were regarded as having given unsatisfactory evidence and fresh statements from them now contradicted evidence from the other claimant about when the claimants first went to the claims company.
The claimants did not see a doctor until six weeks after the supposed accident.
The evidence D had given to the enquiry agent cast doubt on the claimants' evidence.
D's telephone number was the same number as that of the claims company.
The new evidence was significant and cast suspicion on the whole basis on which the claims had been advanced.
This decision confirms that the appeal court may be willing to let in fresh evidence when the public interest is involved, such as in the prevention of fraudulent claims. The Ladd v Marshall conditions are flexible enough to permit this. They are not "a straitjacket".
The decision does not change the general position that orders permitting new evidence on appeal should be rare. Further, where fraud is alleged because of the new evidence, it will still be a question of judgment in every case whether the evidence is strong enough to justify a re-trial. Sir Anthony May did not refer to it in this case, but in Owens v Noble  EWCA Civ 224, the Court of Appeal confirmed the need to balance the criteria in Ladd v Marshall against the need for finality in litigation. A re-trial should not be ordered where fraud is not clearly established (see Legal update, Court of Appeal confirms position when new evidence after trial suggests fraud).