Clerey v Surrey Bituminous Supplies Ltd

In civil proceedings, the trial judge controls the admission of evidence and must secure a fair hearing. Late evidence, even where it departs from the Civil Procedure Rules and creates forensic difficulty, is not automatically excluded. The judge must assess its admission in the context of the proceedings as a whole, balancing the competing interests and considering whether a just result can fairly be achieved. An appellate court will not interfere with that case-management discretion where no proper basis for intervention is shown. Nor will it disturb factual findings supported by the evidence merely because the evidence was admitted late. The same restrained approach applies to a trial judge’s discretion on costs.

The claimant was injured when his car collided with a stationary bus on a road where the defendant contractors were carrying out improvements. The agreed damages were £16,000, subject to liability. After a hearing lasting three days or part of three days, His Honour Judge Hull QC dismissed the claim with costs, finding that the claimant’s excessive speed was the sole cause of the accident.

The claimant sought permission to appeal, principally challenging the admission and weight given to late evidence from the defendant company’s director, Reginald Oakes, about the road-sign layout. He alleged that the evidence was a late ambush, fabricated, contrary to natural justice and the Civil Procedure Rules, and incompatible with Article 6(1) of the European Convention. He also challenged the factual findings, the failure to inspect the site and the costs order.

1. Applications refused unanimously. The court upheld the dismissal of the claim with costs.
2. The trial judge remained responsible for ensuring a fair hearing and was entitled to consider whether to admit evidence tendered late and contrary to the Civil Procedure Rules. The relevant question was the proper judicial control of the proceedings as a whole, including the timing of the evidence, its overall effect and whether a just result could be achieved while maintaining a fair balance between the parties.
3. Although the judge was right to criticise the lateness of the evidence, his decision to admit it fell within his discretion. The matters concerned had been notified in the pleadings. The claimant had also been able to cross-examine Mr Oakes, and other evidence addressed the road layout.
4. The judge’s conclusion that Mr Oakes’s evidence was truthful, and his finding that the claimant’s speed was the sole cause of the accident, were not open to successful challenge. The evidence of Mr Oakes was not the only evidence on the relevant issue.
5. There was likewise no basis for interfering with the judge’s discretion to dismiss the claim with costs. He had expressly considered the late evidence and assessed costs in light of the conduct of the case as a whole.

• Court of Appeal (Civil Division): Applications for permission to appeal were refused. The decision of His Honour Judge Hull QC in the Epsom County Court, dismissing the claim with costs, was left undisturbed.