Tribelnig v Goymour & Anor

An appellate court reviews the decision below and does not rehear the evidence. Fresh evidence may nevertheless be admitted where the established guidance is satisfied: it could not reasonably have been obtained for the trial, it would probably have an important influence on the result, and it is apparently credible. A failure to adduce evidence on an issue known to be material will ordinarily prevent its admission on appeal. Findings of fact based on the trial judge’s assessment of witnesses will not readily be disturbed, particularly where the appellate court lacks the advantage of seeing those witnesses.

The claimant, a leaseholder and adjoining owner, brought proceedings against the defendants concerning building works carried out to an upper flat and common parts. After a five-day trial in the Central London County Court, His Honour Judge Pillay found substantially for the defendants, while ordering limited remedial work to the communal entrance.

The claimant sought an extension of time, permission to rely on fresh evidence concerning the defendants’ witnesses, a chimney flue and roof repairs, and permission to appeal. The central issues were whether the fresh evidence should be admitted and whether there was a realistic prospect of overturning the trial judge’s factual findings.

1. Applications refused. The applications for an extension of time, permission to rely on fresh evidence and permission to appeal were refused. The delay was short and was not treated as a reason to refuse relief.
2. The Court of Appeal is a reviewing court rather than a court conducting a rehearing. Although the principles in Ladd v Marshall [1954] 1 WLR 1489 are no longer a mandatory requirement, they remain the applicable guidance. Fresh evidence should not be admitted unless it could not have been obtained with reasonable diligence for use at trial, it would probably have an important influence on the result, and it is apparently credible.
3. The proposed evidence failed the first requirement. The claimant knew the identity of the witnesses whose character he wished to challenge, knew that the flue was in issue, and had already been able to address the roof repairs at trial. There was no justifiable excuse for not presenting the material below. The Court therefore had no realistic prospect of admitting it.
4. Without the fresh evidence, there was no realistic prospect of success. The trial judge had preferred the defendants’ evidence and their expert’s evidence. Since he had seen the witnesses give evidence, the Court of Appeal had no proper basis for reversing those factual findings.
5. The case had been decided on its facts. Finality in litigation supported refusing the attempt to introduce evidence which should have been placed before the trial judge.

• Court of Appeal (Civil Division): applications for an extension of time, permission to rely on fresh evidence and permission to appeal from the order of His Honour Judge Pillay were refused.
• Central London County Court: after a five-day trial, judgment was substantially for the defendants. The claimant succeeded only in obtaining an order requiring limited remedial work to the communal entrance.