Rafidain Bank & Ors v Saipem Spa & Ors

On an appeal from a hearing on the merits, an applicant seeking to adduce further evidence must satisfy the first Ladd v Marshall requirement: the evidence could not, with reasonable diligence, have been obtained for use below. Diligence is assessed by considering the relevant party and its instructing lawyers, not merely the period after English solicitors were engaged. Delay in investigating available facts counts against the application. A decision to proceed without seeking an adjournment is an additional factor making later admission less readily available. Failure at the first requirement is sufficient; the other requirements need not be considered.

This was an application in an appeal by two Iraqi state-owned organisations against a merits decision of the Vice-Chancellor dated 12 June 1992. The respondents, companies involved in an engineering project, claimed payment of retention money held in London under an English-law trust agreement. The appellants sought to adduce further evidence concerning possible Iraqi tax, customs and social-security liabilities affecting the issue of clearance certificates. The central issue was whether the evidence could not, with reasonable diligence, have been obtained for use at the hearing below.

Application refused unanimously. Lord Justice Dillon gave the leading judgment. Lord Justices Stuart-Smith and Hobhouse agreed.

1. The appeal followed a hearing on the merits. The application was therefore governed by the three requirements in Ladd v Marshall. The first requires proof that the proposed evidence could not, with reasonable diligence, have been obtained for use in the court below. The purpose of the rule is to ensure that evidence obtainable with reasonable diligence is before the court when the merits are decided.
2. The assessment of diligence was not confined to the period after English solicitors were instructed. SCOP had received the summons and affidavits in Iraq well before the hearing. There was unjustifiable delay before the Ministry of Oil referred the matter to the Legal Advisory Bureau. That Bureau could have made elementary enquiries about available factual evidence. It was the responsibility of the client or its Iraqi instructing lawyers to obtain and provide the facts; the English solicitor was not required to discover them.
3. The appellants had also proceeded with the hearing without seeking an adjournment. Although originating-summons proceedings are intended to secure a speedy decision, there was no sufficient reason why an adjournment could not have been sought for further enquiries. A party who chooses to proceed without seeking an adjournment is less readily permitted to adduce the evidence later, since that may confer an unfair tactical benefit.
4. The first requirement was not satisfied. The court therefore refused the application and did not consider the other two requirements.

• Court of Appeal (Civil Division) — In the appeal, the court refused the appellants’ application to adduce further evidence: [1994] EWCA Civ 18.
• High Court of Justice (Chancery Division), Vice-Chancellor — Merits decision dated 12 June 1992, from which the appeal arose. The outcome is not otherwise stated.