Zargaran London (A Firm) v Zargaran

Fresh evidence will not justify reopening a trial merely because solicitors failed to call available witnesses or because evidence emerged unexpectedly at the hearing. Where the issue was squarely before the trial judge and the evidence could have been obtained and presented with reasonable diligence, the appellate court may refuse to reopen the matter. Permission to appeal a factual conclusion should also be refused where the trial judge was entitled to reach it on the evidence and documents and there is no real prospect that a full court would take a different view.

The claimant sued Nasser Zargaran and Bibi Boft Carpets Ltd in the Central London County Court. Judge Medawar QC entered judgment against Nasser for rug costs and storage charges, dismissed the company’s counterclaim for the value of detained rugs and loss of profits, and lifted a stay affecting the company’s judgment debt.

Permission to appeal had already been granted on paper concerning Nasser’s liability for the costs of defending the counterclaim. The present application concerned other parts of the order. The company sought to adduce fresh evidence and reopen its counterclaim. Nasser sought permission to challenge the finding that he had agreed to pay storage charges. The central issues were whether the fresh evidence should be admitted and whether there was a real prospect of successfully challenging the storage-charge finding.

1. Fresh evidence. The application by Bibi Boft Carpets Ltd to adduce further evidence and reopen the counterclaim was dismissed. The proposed evidence concerned an issue firmly before the trial judge. The defendants had the opportunity to call the proposed witnesses at trial, and the evidence could have been produced with reasonable diligence. Solicitors’ failure to produce it, and the emergence of unexpected evidence from the claimant’s witnesses, did not make it fair or proper to litigate the counterclaim again.
2. Storage charges. The trial judge was entitled to find that Nasser had agreed to store rugs at the claimant’s premises on terms reflecting the rate paid by another customer. The judge was entitled to accept the evidence of Marziel Zargaran and Peter Marshall, together with the surrounding documents and the subsequent monthly invoices. Nasser’s correspondence did not make a clear objection to liability for the charges and was consistent with the existence of the agreement.
3. Permission to appeal. The challenge to the storage-charge finding had no real prospect of persuading the full court that the agreement had not been made. The renewed application for permission to appeal was therefore dismissed. Sir Martin Nourse agreed with Lord Justice Brooke and added nothing. The formal order was that the application be dismissed.

1. Central London County Court: On 22 September 2000 Judge Medawar QC entered judgment against Nasser Zargaran, dismissed Bibi Boft Carpets Ltd’s counterclaim, and lifted the stay affecting the company’s judgment debt.
2. Court of Appeal (Civil Division): The court dismissed the renewed applications for permission to appeal and the application to adduce fresh evidence. The judgment is reported at [2001] EWCA Civ 849.