Ladd v Marshall

An appellate court may receive fresh evidence, or order a new trial on that ground, only where three conditions are met. The evidence could not have been obtained with reasonable diligence for use at trial. It would probably have an important influence on the result, although it need not be decisive. It must also be apparently credible, although it need not be incontrovertible.

A witness who admits giving false evidence will not ordinarily satisfy the credibility condition. A satisfactory explanation for the original falsehood and good grounds for believing the proposed evidence are required. Proven bribery, coercion or a convincingly explained material mistake may justify a different conclusion.

The claimant sought repayment of £1,000 which he alleged had been paid in cash to the defendant, in addition to the recorded price for the purchase of controlled-price property. The defendant denied receiving the money. Glyn-Jones J preferred the defendant's evidence and entered judgment for him.

After the time for appealing had expired, the defendant's former wife said that her trial evidence had been false and that she had witnessed the payment. The Court of Appeal extended time to appeal and permitted the claimant to seek leave to adduce her proposed evidence. The claimant also contended that the trial had been unsatisfactory. The central questions were whether the proposed evidence justified its reception or a new trial, and whether the trial judge's findings should otherwise be disturbed.

1. Appeal and application dismissed. Denning, Hodson and Parker LJJ agreed that the proposed evidence should not be received and that the trial judge's factual decision should stand. The appeal was dismissed with costs.

2. Denning LJ stated that three conditions must be fulfilled before fresh evidence may be received or a new trial ordered. First, the evidence could not have been obtained with reasonable diligence for use at trial. Secondly, it would probably have an important influence on the result, although it need not be decisive. Thirdly, it must be apparently credible, although it need not be incontrovertible. Hodson and Parker LJJ applied the same requirement that the evidence be presumably worthy of belief.

3. The proposed evidence failed the credibility condition. A witness who admits lying at trial will not ordinarily be regarded as credible merely because the witness later offers a different account. There must be a satisfactory reason for the original falsehood and good grounds for believing the later evidence. Proven bribery or coercion, or a convincingly explained mistake concerning an important matter, may exceptionally provide such grounds.

4. The former wife's allegation that she had acted through fear of her husband was not established. The affidavits did not show that he had threatened or coerced her into giving the original evidence. Her subsequent conduct also undermined her explanation. The court could not therefore regard her proposed account as apparently credible.

5. The original trial was not shown to be unsatisfactory. The claimant's witnesses had been challenged, and the judge was entitled to assess their credibility and demeanour. The failure to make a specific application to treat the former wife as hostile could not be converted into an appellate complaint. Nor did the brevity of the judgment invalidate the judge's clear finding that the alleged payment had not been proved.

1. Court of Appeal: Extended time for appealing and allowed the claimant to seek leave to adduce fresh evidence. It subsequently dismissed both the appeal and the application to receive that evidence, with costs.

2. High Court: Glyn-Jones J held that the claimant had not proved payment of the alleged £1,000 and entered judgment for the defendant with costs.