Gillingham v Gillingham

The Court of Appeal held that the Civil Procedure Rules and the overriding objective permit the admission of fresh evidence on appeal where justice so requires.

The traditional Ladd v Marshall criteria remain relevant as matters for the court's discretion but are not a rigid test.

A party's failure to disclose a document which it once possessed is a strong factor in favour of admission.

The claimants sought to overturn a Chancery Division trial judgment which rejected their case that certain shares were held on trust for a children's settlement.

They applied for permission to appeal out of time relying on a newly discovered contemporaneous letter signed by both parties which supported the claimants' account.

The Court of Appeal was invited to determine whether to admit the new evidence and, if admitted, whether permission to appeal should be extended and a new trial ordered.

1. Disposition: The appeal was allowed. The Court admitted the letter of 27 January 1994, extended time for permission to appeal, granted permission and ordered a new trial (per Clarke LJ; Lord Justice Peter Gibson concurred).
2. Principle on fresh evidence: The Civil Procedure Rules, and in particular the overriding objective in CPR 1.1, govern admission of fresh evidence on appeal. The court will consider all relevant circumstances when exercising its discretion rather than applying a rigid formula (per Clarke LJ).
3. Role of Ladd v Marshall: The familiar Ladd v Marshall criteria remain relevant and constitute important matters to consider. They are not a straitjacket. The three Ladd v Marshall matters (reasonable diligence; probable influence on the result; credibility) should be considered as part of the CPR-led exercise (per Clarke LJ).
4. Application to the facts: The letter was credible and likely to have had an important influence on the trial judge's assessment of credibility and the probabilities. That factor satisfied the second Ladd consideration. The first Ladd consideration (reasonable diligence) was arguable, but the court preferred to admit the evidence because the document had originally been created by the respondent and neither party had produced it; non-disclosure by the respondent weighed strongly in favour of admission (per Clarke LJ).
5. Disclosure obligation: CPR 31.6 imposes a disclosure duty to reveal documents that support another party's case or adversely affect a party's own or another party's case. The respondent's unexplained failure to disclose a contemporaneous document which he had prepared was a compelling reason to admit the document in the interests of justice.
6. Practice guidance: Where admission of evidence on appeal will be determinative of permission to appeal and the appeal itself, the court will decide both applications together. Finality is important but each case turns on its facts and the overriding objective may favour admission where non-disclosure or clear probative value is shown.
7. Orders: The order below was set aside. A retrial was ordered. Costs of the application and of the appeal were awarded to the applicants; costs below were reserved to the trial judge.

• High Court (Chancery Division): His Honour Judge Rich QC gave judgment for the defendant and dismissed the claimants' claim (trial judgment).
• Court of Appeal (Civil Division): Appeal allowed; letter admitted; time for permission to appeal extended; new trial ordered (per Clarke LJ and Peter Gibson LJ).