Townsend & Anor v Achilleas

Applications to admit fresh evidence after judgment should not be subject to a stricter test merely because they are made to the trial judge before the order is perfected. The court should apply the familiar criteria in Ladd v Marshall, while giving effect to the overriding objective and the public interest in finality. Particular weight should be given to whether the evidence could have been obtained with reasonable diligence, whether it would probably influence the result, and whether it is apparently credible. A trial judge may apply the criteria somewhat flexibly because the judge has seen the witnesses and is closer to the evidence. Fresh evidence should nevertheless be admitted sparingly.

The claim arose from a fire at residential premises let by the respondent to the first appellant. The trial judge found that defects in the electrical installation caused the fire and awarded damages under the Landlord and Tenant Act 1985 and the Defective Premises Act 1972. The respondent appealed the damages judgment and a later refusal to reopen the trial.

After judgment, a previously unknown witness supplied evidence suggesting that the fire might have been caused by a naked flame and that the first appellant’s son had discussed making an insurance claim. The central issues were the correct approach to fresh evidence before perfection of the order, whether the evidence satisfied the applicable criteria, and whether a retrial on causation should be ordered.

1. Appeal allowed. Permission was granted to adduce the affidavit of Mr Kalogirou, subject to directions on cross-examination, and the causation issue was remitted for retrial before a different judge.
2. On the evidence at trial, the judge was entitled to find that the fire was not caused by the son’s conduct or by electrical apparatus, and to conclude on the balance of probabilities that it arose from the electrical distribution system. Absent the fresh evidence, the appeal against the damages award would have been dismissed.
3. The trial judge had applied an incorrect approach by requiring exceptional circumstances before admitting evidence after judgment and before perfection of the order. There was no principled basis for imposing a more restrictive test on the trial judge than on the Court of Appeal. A slightly more flexible application could be justified because the trial judge had seen the witnesses and was better placed to assess the evidence as a whole.
4. Under Part 52 of the Civil Procedure Rules, the appellate court’s general power to receive fresh evidence must be exercised in accordance with the overriding objective. The power is subject to stringent limits and must be exercised cautiously and sparingly. The three criteria in Ladd v Marshall remained important: reasonable diligence, probable influence on the result, and apparent credibility.
5. The evidence was discovered through an unusual chance meeting. It was not reasonable to expect wide-ranging inquiries into the son’s background without a proper lead. The evidence was apparently credible and could materially affect the assessment of his trial evidence and the issue of causation. Those circumstances justified a retrial despite the delay, expense and public interest in finality.

Lord Justice Schiemann and Lord Justice Ward agreed with Lord Justice Mummery.

• Court of Appeal (Civil Division) — [2000] EWCA Civ 210: allowed the appeal, admitted the fresh evidence subject to directions, and ordered a retrial on causation before a different judge.
• Queen’s Bench Division, Technology and Construction Court — judgment on 12 February 1998 awarding damages; subsequent decision on 9 October 1998 refused to reopen the trial and admit fresh evidence.