De Beauville v Swycher & Co (a firm) & Anor

Fresh evidence may be admitted on appeal where it was unavailable at trial, is sufficiently credible to have a real possibility of acceptance, and is likely to have an important influence on the result, although it need not be decisive. The appellate court need not determine the evidence’s truth at the admission stage.

Where the fresh evidence materially undermines the trial judgment and its assessment depends on oral credibility evidence, the proper course is a complete rehearing before another judge. The Court of Appeal should not attempt to resolve such credibility issues merely by reviewing written material.

The claimant obtained damages against Bradleys, a firm of solicitors, after valuable goods intercepted under an injunction were placed in an allegedly unsuitable warehouse and were damaged or lost. The trial judge found Bradleys liable and awarded approximately £98,000 plus interest.

On appeal, Bradleys sought to introduce evidence from Mr Whitehouse, a former associate of the claimant, suggesting that some allegedly lost goods had been placed with him and that the claim might involve fraud. The central issues were whether the evidence should be admitted and, if so, whether the case should be reheard.

1. Appeal allowed to the extent of a retrial. The application to admit fresh evidence was allowed.
2. The governing principles were those stated in Ladd v Marshall. The evidence was unavailable at trial because Mr Whitehouse had given no indication that he possessed relevant evidence. It also satisfied the requirements of credibility and likely importance. Credibility at this stage meant a real possibility that the evidence might be accepted; the appellate court was not required to decide whether it was true.
3. The proposed evidence, if accepted, would substantially undermine the judgment and cast doubt on other evidence relied on by the claimant. Questions concerning whether Mr Whitehouse or the claimant was telling the truth had to be determined by a judge hearing both witnesses and testing their evidence by cross-examination.
4. It would not be practicable for the Court of Appeal to conduct that assessment from written material. Since the fresh evidence affected the central factual issues, justice required a complete rehearing rather than a limited reconsideration. The rehearing was to take place before another judge.
5. Costs were left to the discretion of the judge conducting the retrial. If no retrial took place and the proceedings were otherwise disposed of, Bradleys were to receive their costs of the appeal and the first trial.

• Court of Appeal (Civil Division): admitted fresh evidence, allowed the appeal to the extent of ordering a retrial, and left costs to the retrial judge.
• Queen’s Bench Division: Mr Harold Burnett QC, sitting as a deputy judge, found Bradleys liable and awarded the claimant approximately £98,000 plus interest.