Elliott v Elliott

Although the rule in Ladd v Marshall is applied less strictly in family appeals, an appellate court must impose principled limits on fresh evidence. It should not permit a party to reopen a fundamental issue determined below, particularly where the issue was resolved both evidentially and on an agreed basis. A party cannot ordinarily resile from such an agreement on appeal.

The husband appealed from proceedings in the Southend County Court before His Honour Judge Yelton. At the outset of the appeal, he sought permission to introduce evidence that suitable three-bedroom accommodation for the wife and children might be obtained more cheaply in Basildon than in Wickford. The wife opposed the application because the evidence could have been adduced below and the housing figure had been agreed. The central issue was whether the Court of Appeal should permit the husband to reopen the assessment of the wife’s housing needs.

1. Application refused. The Court of Appeal declined permission to adduce fresh evidence.
2. Lord Justice Thorpe held that, although the rule in Ladd v Marshall was not applied with rigour in family appeals, principled limits still had to govern the scope of an appellate investigation.
3. The proposed evidence concerned the wife’s housing needs, a fundamental issue in the case. That issue had already been determined below on an evidential basis.
4. It had also been determined on the basis of an agreement that approximately £95,000 would be required for a three-bedroom house. In those circumstances, it would be improper to allow the parties to resile from the agreed basis of the adjudication.
5. Mr Justice Jonathan Parker agreed with Lord Justice Thorpe. The order was: application refused.

• Court of Appeal (Civil Division): On appeal from the Southend County Court, the application to introduce fresh evidence was refused.