Evans v Tiger Investments Ltd. & Anor

Fresh evidence will generally be admitted on appeal only where it could not, with reasonable diligence, have been obtained for use at trial, would probably have had an important influence on the result, and is apparently credible. Those principles remain broadly applicable under CPR 52.11(2), subject to appropriate relaxation in light of the overriding objective. A party cannot rely on inadequate preparation, defective communication with solicitors, or a deliberate decision to proceed without seeking an adjournment in order to obtain a second opportunity to present its case. In applying the overriding objective, the court must consider fairness and finality between the parties to the appeal, including where the proposed evidence concerns a dispute between co-defendants.

Tiger Investments Ltd appealed against a decision of the Hastings County Court, where the recorder entered judgment for Evans for £53,599.44, ordered possession of properties charged as security for a loan, and dismissed Tiger’s counterclaim that the charge was unauthorised and non-binding.

The charge had been signed by Moore, a 50 per cent shareholder, although he lacked authority to execute it. The recorder found that the charge and borrowing had been sanctioned or acquiesced in by both shareholders. On appeal, Tiger challenged the factual findings and sought to adduce documents and witness evidence said to show that Moore had intended to borrow personally. The central issue was whether that evidence satisfied the principles governing fresh evidence on appeal.

1. Appeal dismissed. Permission to adduce fresh evidence was refused.
2. The principles in Ladd v Marshall [1954] 1 WLR 1489 continued to apply broadly when considering fresh evidence under CPR 52.11(2). The evidence had to be evidence which could not with reasonable diligence have been obtained for trial, which would probably have had an important influence on the result, and which was apparently credible. The second and third requirements were accepted, but the first was not.
3. The relevant documents and witnesses had been identifiable and available during the period when Tiger’s solicitors acted. No adequate attempt had been made to obtain the conveyancing files, approach the vendors, subpoena relevant material, or seek specific disclosure. The knowledge and conduct of Tiger’s solicitors could not be separated from that of Tiger for the purpose of assessing reasonable diligence. Inadequate instructions or communication between solicitor and client did not establish diligence.
4. Tiger had chosen at trial to allow Moore’s late witness statement to be admitted without seeking an adjournment. It then relied principally on the evidence of Hill and Robinson. Having taken that calculated procedural risk, Tiger could not obtain a second opportunity on appeal because its assessment had proved mistaken.
5. The overriding objective did not justify admitting the evidence. The relevant justice was that between Evans and the defendants, and considerations of finality and fairness favoured maintaining the judgment. Any dispute as to whether Moore, rather than Tiger, should bear the loss could have been addressed through third-party proceedings, which Tiger had not brought.
6. On the factual findings made below, Tiger did not pursue the argument that the recorder had erred in law in treating the charge as validated by shareholder approval or acquiescence. The appeal therefore depended entirely on the fresh-evidence application, which failed.

• Court of Appeal (Civil Division): appeal from the Hastings County Court was dismissed. Permission to adduce fresh evidence was refused.
• Hastings County Court: judgment was entered for Evans, possession of the charged properties was ordered, and Tiger’s counterclaim was dismissed.