Dodd & Anor v O'Callaghan

An application for permission to appeal relying on fresh evidence may be adjourned for determination by a full appellate court where the evidence is arguably material and the circumstances in which it was not produced at trial require further assessment. The court should consider the principles governing the admission of fresh evidence, including Ladd v Marshall, together with the overriding principles of the CPR. The applicant must provide evidence explaining the failure to obtain or adduce the material at trial.

The defendant sought permission to appeal from a Croydon County Court judgment concerning the alleged undervalue of a repossessed flat and the mortgagee’s duty to obtain a reasonable price. He also sought an extension of time.

The applicant relied on new evidence concerning the earlier marketing of the flat and the later sale of another flat in the same building. Some material had been available at trial, while other evidence had been obtained only after judgment. Lord Justice Rix granted the extension of time but considered that permission and admission of the new evidence should be considered by a full court on notice.

1. Extension of time. The applicant was shortly out of time in submitting his appellant’s notice. The extension was granted.
2. Fresh evidence. The proposed evidence concerning the sale of the neighbouring flat appeared to constitute hard evidence of a matter rejected at trial. The circumstances in which that evidence had been obtained justified further consideration. The evidence concerning the earlier offer for the subject flat had been available at trial, and the applicant accepted that it should then have been used.
3. Procedure. The full court should determine the application for permission to appeal and consider whether the new evidence should be admitted, applying the principles in Ladd v Marshall and the overriding principles of the CPR. It should assess both the value of the evidence and the reasons why it was not produced at trial.
4. The proceedings were adjourned for a hearing on notice before two Lords Justices. The applicant was directed, within 28 days of receiving the transcript, to serve a statement explaining the circumstances in which the new material was obtained or why it had not been obtained in time.

• Croydon County Court: His Honour Judge Ellis gave judgment on 14 June 2001, accepting that the property had been sold at a proper price and rejecting the alleged breach of duty.
• Court of Appeal (Civil Division): The application for an extension of time was granted. The permission application was adjourned for hearing on notice before two Lords Justices.