Gillingham & Ors v Gillingham

Under the Civil Procedure Rules 1998, admitting evidence not before the lower court is a discretionary decision governed by the overriding objective. The former fresh-evidence criteria remain relevant considerations, but they are not rigid rules and the applicant need not show special grounds. The court must consider all the circumstances, including credibility, probable influence on the result and reasonable diligence. Even where reasonable diligence is doubtful, justice may require admission of compelling evidence that could materially affect the outcome. A party’s unexplained failure to disclose a document supporting the opponent’s case may weigh strongly in favour of admission. Admission may justify extending time, granting permission to appeal, allowing the appeal and ordering a retrial.

The claimants challenged the ownership of shares in two family companies, alleging that the defendant held them on trust for a children’s settlement. After a trial, His Honour Judge Rich QC dismissed the claim in the Chancery Division on 15 March 2000. No permission to appeal was sought at that time.

The claimants later discovered a signed letter which appeared to record an agreement that the shares would be transferred to the settlement. They applied out of time for permission to appeal and for permission to rely on the letter as fresh evidence. Chadwick LJ directed an oral hearing because the two applications were closely connected. The central issue was whether the letter should be admitted and, if so, what consequential orders should follow.

1. Disposition. Clarke LJ would admit the letter, extend time, grant permission to appeal, allow the appeal and order a new trial. Peter Gibson LJ concurred. The appeal was therefore allowed unanimously. The applicants received the costs of the application and appeal, while costs below were reserved to the judge at the retrial.
2. Applicable approach. CPR 52.11(2)(b) gives the appeal court a discretion to receive evidence not before the lower court. That discretion must be exercised in accordance with the overriding objective in the Civil Procedure Rules 1998. It is no longer necessary to establish the special grounds formerly required by RSC Order 59 rule 10(2). The principles in Ladd v Marshall [1954] 1 WLR 1489 remain relevant, but as considerations informing the discretion rather than as inflexible rules. The approach stated in Banks v Cox and Hickey v Marks was applied.
3. Fresh evidence. The letter was genuine and credible. It was compelling evidence which might have caused the trial judge to take a different view of the evidence and probabilities, and therefore probably would have had an important influence on the result. Although there was force in the submission that the letter could have been found with reasonable diligence, the court was prepared to assume against the claimants that it could have been located earlier.
4. Disclosure and justice. The letter was written by the defendant and signed by both parties. It was therefore inconceivable that he had not possessed a copy at some point. His failure to disclose or mention it was unexplained. Under CPR 31.6, he had a duty to disclose it because it adversely affected his case and supported another party’s case. The suggestion that the letter had been superseded was speculative and unsupported by his evidence. In the circumstances, the overriding objective and the need to resolve the dispute fairly required admission, despite the importance of finality in litigation.
5. Consequences. The court did not predict the result of the retrial. It observed that a retrial might become unnecessary if the defendant transferred the shares to the trust as originally intended.

1. Court of Appeal (Civil Division): On 8 June 2001, the court admitted the new letter, extended time, granted permission to appeal, allowed the appeal and ordered a retrial. Costs of the application and appeal were awarded to the applicants; costs below were reserved.
2. Chancery Division: On 15 March 2000, His Honour Judge Rich QC gave judgment for the defendant and dismissed the claim with costs.
3. Court of Appeal (Civil Division): On 9 February 2001, Chadwick LJ directed an oral hearing of the applications for permission to appeal and to adduce fresh evidence, with the appeal to follow if permission were granted.