Commissioner Of Police Of Metropolis v Lincoln

The Court of Appeal may receive fresh evidence on appeal where the Ladd v Marshall principles are satisfied, viewed in the light of the overriding objective of doing justice between the parties. Evidence concerning a critical witness’s credibility may justify a retrial where it could probably have had an important influence on the result. A party is not necessarily lacking reasonable diligence where the material could not reasonably have been discovered until the trial was under way, particularly because the witness’s relevant status was unknown. Where the new material requires the central factual issues to be reconsidered, the appropriate order is a retrial before a fresh fact-finding tribunal.

The claimant succeeded before the Central London County Court in claims for assault and malicious prosecution arising from an incident involving Metropolitan Police officers. He recovered £49,000 following a jury trial.

The police authority appealed and sought to adduce fresh evidence concerning Mr Whiting, a critical witness for the claimant. After the trial, it emerged that he was a police employee who had been suspended and disciplined for dishonesty, was later arrested and convicted of theft, and was dismissed for gross misconduct. The central issues were whether the evidence should be received and whether it justified a retrial.

1. Appeal allowed; retrial ordered. The court received the fresh evidence concerning Mr Whiting’s suspension, disciplinary history, later theft conviction and dismissal.
2. The evidence was highly material to credibility. It could affect whether the jury regarded Mr Whiting as an independent witness with no improper motive. His evidence was crucial to the central factual questions, including whether the police had assaulted the claimant and falsely alleged that he had assaulted an officer.
3. The first Ladd v Marshall principle was satisfied. The defence had not lacked reasonable diligence because it did not know until Mr Whiting entered the witness box that he was a police employee, and there had been no reason beforehand to expect that he had relevant character or conduct issues. The delay in obtaining the information was explained by the absence of the usual notification machinery and difficulties in contacting his superior.
4. The evidence probably would have had an important influence on the result. The third Ladd v Marshall principle was not disputed. The overriding objective under the Civil Procedure Rules required the central factual issues to be properly evaluated by a jury aware of the witness’s status and credibility.
5. It followed that a retrial before a fresh jury was necessary. The order was made under Part 52.10(2)(c) of the Civil Procedure Rules 1998. The retrial was to take place as soon as possible, with costs in the case.

• Central London County Court: A jury found for the claimant on claims for assault and malicious prosecution. His Honour Judge Butter awarded £49,000 in damages.
• Court of Appeal (Civil Division): The police authority’s appeal was allowed. Fresh evidence was received and the matter was ordered to be retried before a fresh jury.