Daly & Anor v Sheikh

Under CPR 52.11(2), the Court of Appeal may admit fresh evidence in accordance with the overriding objective of dealing with cases justly. Although the rule removed the former express requirement for special grounds, the principles in Ladd v Marshall [1954] 1 WLR 1489 remain relevant. Credible and cogent evidence suggesting forgery or attempted deception strongly favours admission. The court should not refuse evidence merely because earlier diligence might have uncovered the deception. Evidence may satisfy the important-influence requirement if it would undermine a decisive factual finding, even though it would not determine the ultimate merits. Reasonable diligence is assessed in context, particularly where the significance of an issue emerges only during oral evidence.

The claim concerned damages and repayment under a building contract. The original contract was made between the claimants and a company of which the defendant was a director. The claimants alleged that the defendant later became personally liable by novation.

Mr Justice Gray tried a preliminary issue and entered judgment for the defendant, finding that the written contract had been signed and dated after the alleged novation. After judgment, the claimants obtained a forensic document examiner’s report indicating that the claimant’s signature and the handwritten date were not his. The claimants sought permission to appeal and permission to rely on that fresh evidence. The central issue was whether the evidence should be admitted and, if so, what order should follow.

Permission to appeal was granted and the appeal was allowed unanimously. Chadwick LJ delivered the leading judgment, with Longmore LJ agreeing.

1. CPR 52.11(2) confers power to receive evidence not before the lower court. The power must be exercised in light of the overriding objective and the need to deal with cases justly. The removal of the former express requirement for special grounds did not make the principles in Ladd v Marshall [1954] 1 WLR 1489 irrelevant. Those principles remained powerful guidance, adapted to the new procedural context.
2. The approach in Hamilton v Al Fayed (unreported) 21 December 2000 was followed. The court must balance the need for finality against achieving the right result. The approach in Hamilton v Brodie Brittain Racing Ltd (unreported) CA, 13 December 1995 was instructive: alleged forgery justified a flexible approach to reasonable diligence.
3. The document examiner’s report was apparently credible and cogent. It raised the possibility that the court and the opposing party had been deceived. The Court of Appeal made no finding that the defendant had attempted deception, but the interests of justice strongly favoured admitting evidence capable of revealing such conduct.
4. The evidence would probably have had an important influence on the result. If accepted, it would have removed the basis on which the judge rejected the alleged novation. It was unnecessary for the evidence itself to establish that a novation had occurred.
5. There had been reasonable diligence. The significance of the handwriting and signature emerged only when the defendant gave oral evidence, after the claimant’s evidence had been completed. The claimant acted promptly and was not at fault in failing to obtain forensic evidence earlier.
6. The new evidence was admitted. The appeal was allowed and the matter remitted for a new trial on all the evidence. The costs of the appeal and proceedings below were reserved to the trial judge on rehearing. The relevant paragraph of the order of 7 March 2002 was set aside, with liberty to the defendant to apply to discharge the freezing order.

1. Court of Appeal (Civil Division): Permission to appeal was granted, fresh evidence was admitted, the appeal was allowed, and the matter was remitted for rehearing.
2. High Court of Justice, Queen's Bench Division: Mr Justice Gray determined the preliminary issue on 7 March 2002 and entered judgment for the defendant.