Banks & Anor v Cox & Anor

Permission to appeal should not be granted to enable a party to introduce evidence which could reasonably have been produced at trial or retrial. Established principles governing fresh evidence, including Ladd v Marshall, must be applied. Findings of fact, witness reliability and credibility are primarily matters for the trial judge and will not ordinarily justify appellate intervention. Where the judge has applied the relevant guidance, investigated the material facts and reached conclusions supported by the evidence, those conclusions may be unassailable on appeal.

The claimants bought a nursing home from the defendants and later alleged fraudulent misrepresentation concerning a local authority letter warning of funding cuts. The first trial dismissed the claims. An earlier Court of Appeal decision allowed the claimants’ appeal and ordered a retrial.

At retrial, the judge found that the defendants had received the letter, that their answer to a preliminary enquiry was false, and that the claimants would not have proceeded with the purchase had the answer been truthful. The defendants sought permission to appeal, relying principally on fresh evidence and challenges to factual and credibility findings. The court also considered related applications concerning a freezing order and an earlier procedural order.

1. Application for permission to appeal dismissed. The defendants failed to show a proper basis for pursuing any of the grounds left open by Sedley LJ.
2. Fresh evidence was inadmissible under the principles stated in Ladd v Marshall. The proposed evidence could, in substance, have been obtained and adduced at the trial or retrial. It did not justify reopening issues which had already been investigated.
3. The retrial judge was fully aware of the defendants’ case concerning receipt of the local authority letter, the timing of the sale, the relevant meetings and the evidence of other care-home owners. He was entitled to find that the letter had been received and opened by Mr Cox, and to prefer the evidence of other witnesses where appropriate.
4. The judge had followed the guidance previously given by the Court of Appeal concerning whether the answer to preliminary enquiry No 20 was false. His conclusion that the answer was false was therefore unassailable on an appeal based on the proposed grounds.
5. Challenges to the credibility and reliability of the claimants, and to the weight given to competing evidence, were essentially matters for the trial judge. They did not provide a sufficient basis for appellate intervention.
6. The application to vary the freezing order and the application to vary the earlier procedural order were also before the court, but the formal order recorded that the application was dismissed, with no order for costs and legal aid assessment of the respondents’ costs.

• Chancery Division: Lloyd J dismissed the original claims and refused permission to appeal.
• Court of Appeal: An earlier appeal was allowed and a retrial ordered.
• Chancery Division: Lawrence Collins J found the defendants liable for fraudulent misrepresentation and directed an inquiry as to damages.
• Court of Appeal: The present application for permission to appeal was dismissed.