Hamilton v Al Fayed

Fresh evidence will not normally justify reopening a concluded civil trial unless it could not have been obtained with reasonable diligence, is apparently credible and would probably influence the result. The overriding objective permits a flexible application of earlier authority but does not displace those requirements.

Where fraud, procedural impropriety or another irregularity has affected the fairness of a civil trial, the decisive question is whether there is a real danger that it influenced the outcome. A retrial should normally be ordered if that danger exists. Evidence directed solely to a witness’s credit will rarely suffice, unless deliberate deception concerning credibility may reasonably have affected the result.

The claimant unsuccessfully sued the defendant for alleging that he had corruptly accepted payments for parliamentary activity. The jury found that the defendant had proved corruption by highly convincing evidence. The claimant subsequently alleged that documents protected by legal professional privilege had been stolen from counsel’s rubbish and purchased by the defendant’s camp.

The claimant applied for permission to appeal, relying exclusively on fresh evidence. He sought judgment in his favour or a retrial, together with reversal of the costs order. The central questions were whether the defendant was responsible for purchasing the documents, whether they created a procedural advantage capable of affecting the verdict, whether disclosure of the misconduct could have altered the jury’s assessment of credibility, and whether the defendant should be barred from advancing a positive case.

1. Disposition. The Court unanimously permitted the fresh evidence to be adduced but dismissed the applications for permission to appeal against the verdict and costs order. No order was made as to the costs of the applications.

2. The three conditions in Ladd v Marshall remained powerful and compatible with the overriding objective. Fresh evidence should ordinarily be received only if it could not have been obtained with reasonable diligence, was apparently credible and would probably influence the result. Earlier authority was not a straitjacket under the transitional procedure, but remained strongly persuasive.

3. Fraud, procedural impropriety or another irregularity affecting trial fairness does not automatically require a new civil trial. The vital question is whether there is a real danger that the misconduct influenced the outcome. A retrial should normally follow if that danger exists; otherwise, the interests of justice require finality. Criminal authorities permitting a verdict to be quashed for procedural unfairness despite clear guilt did not govern civil litigation between private parties.

4. The Court found that stolen privileged documents were supplied to the defendant’s security chief, who paid £10,000 for them while acting on the defendant’s behalf and within his authority. The conduct was discreditable and amounted, for present purposes, to an abuse comparable to fraud. The claimant nevertheless bore the burden of showing that the abuse placed the verdict in doubt.

5. That burden was not discharged. There was no reason to believe that the documents afforded a significant procedural advantage, assisted the preparation of the defendant or his witnesses, or enabled the defendant to secure a verdict which he might otherwise have lost. Speculation that discarded cross-examination notes had reached the defendant’s camp was insufficient.

6. Fresh evidence going only to credit will seldom justify a retrial. Here, the trial judge had already warned the jury in the strongest terms against accepting the defendant’s uncorroborated testimony. The jury must either have relied on the independent witnesses as highly convincing or have found for the defendant on the separate Mobil allegation. In neither event was there a real danger that knowledge of the document purchase would have altered the verdict.

7. The misconduct did not affect the conduct of the defence and did not justify varying the trial judge’s costs order. The more extreme abuse-of-process jurisdiction recognised in Arrow Nominees Inc v Blackledge, which can prevent a litigant advancing a positive case, did not arise on the Court’s findings.

1. Court of Appeal (Civil Division): Fresh evidence admitted, but permission to appeal against the jury’s verdict and the trial judge’s costs order refused.
2. Queen’s Bench Division: Following a libel trial before Morland J and a jury, the jury found for the defendant on the basis that corruption had been established by highly convincing evidence. The trial citation is not stated in the judgment.