Prentice v Hereward Housing Association & Anor

Fresh evidence on appeal should be admitted under the three conditions in the rule in Ladd v Marshall: it could not have been obtained with reasonable diligence, would probably materially influence the result, and is apparently credible. The overriding objective under the Civil Procedure Rules does not automatically alter that approach. An insurer may proceed on the basis that an apparently honest claim is genuine unless something suggests otherwise; it has no general duty to investigate whether the account is false. Where new evidence gives a strong prima facie indication that the court may have been wilfully deceived, the interests of justice may require a retrial.

The claimant injured his ankle on a grassed area outside his home and brought claims in negligence and under the Occupiers Liability Act 1957 against a housing association and a district council. The High Court rejected the claim against the housing association but found the council liable, reducing damages by 30 per cent for contributory negligence. After judgment, the council obtained witness evidence suggesting that the accident had occurred in a materially different way and sought permission to rely on it on appeal. The central issues were whether the evidence satisfied the requirements for fresh evidence and whether the evidence justified a retrial because the original court might have been deceived.

The appeal was allowed unanimously. The fresh evidence was admitted and a new trial ordered. The High Court order was set aside except for paragraph 3. Costs in both courts were to be costs in the new trial, liberty to apply was granted in relation to section 11, and the freezing order was continued until judgment in the new trial.

1. The applicable approach was the rule in Ladd v Marshall, reported at 1954 1 WLR 1489. The applicant had to show that the evidence could not have been obtained with reasonable diligence for use at trial, that it would probably have an important influence on the result though it need not be decisive, and that it was presumably credible.
2. The appeal was governed by the pre-Part 52 position. Although rule 50.10(2) of the Civil Procedure Rules required the power to be exercised in accordance with the overriding objective in rules 1.1 and 1.2, that objective did not alter the relevant considerations in this case.
3. The fresh evidence was sufficiently cogent. The witnesses gave their accounts five years after the accident, so discrepancies about details such as position and orientation were unsurprising. The central question whether the accident occurred in the suggested manner was less likely to have been forgotten.
4. The reasonable-diligence requirement was satisfied. An insurer is entitled, unless something suggests otherwise, to work on the basis that a claimant is making a genuine and honest claim. There was no general requirement to investigate by approaching neighbours where the claimant’s account was consistent and supported by an apparently honest witness. Nothing in the available material had alerted the defendant to the possibility of fabrication.
5. The evidence also raised matters requiring consideration of whether the court had been wilfully deceived. Following Skone v Skone [1971] 1 WLR 812, different considerations apply where fresh evidence suggests such deception. The interests of justice therefore required the relevant issues to be retried, without prejudging the result.

• Court of Appeal (Civil Division): Appeal allowed. Fresh evidence admitted, the order set aside except for paragraph 3, and a new trial ordered.
• High Court of Justice, Queen's Bench Division: Mr Justice Douglas Brown rejected the claim against Hereward Housing Association but found East Cambridgeshire District Council liable. Damages were reduced by 30 per cent for contributory negligence.