Stratton v Brown

Fresh evidence will generally be refused on appeal where the evidence, or reasonable steps to obtain it, could have been available at trial. This applies where a party receives potentially relevant information during closing submissions but chooses not to investigate or seek an adjournment. The appellate court reviews the trial decision; it does not ordinarily conduct a further investigation of the evidence. Anonymous information should also be treated cautiously where its reliability is uncertain and the case has already been thoroughly investigated. The position may differ on a rehearing following a successful appeal, when the rehearing court may receive evidence properly admissible at that stage.

The claimant succeeded in a personal injury claim before Morison J, who assessed damages at £12,888 after the defendant had admitted liability for an agreed proportion. Permission to appeal was granted. During closing submissions at trial, the defendant’s counsel received an anonymous note alleging that the claimant’s collapses were caused by Ecstasy use. No action was taken before judgment. The defendant later applied for disclosure and expert consideration of accident and emergency records before the appeal. The central issue was whether justice required further medical investigation at the appellate stage.

1. Application refused. The Court of Appeal, per Lord Justice Pill with whom Lady Justice Hale agreed, declined to permit further investigation of the claimant’s medical records before the appeal. The respondent was ordered to pay the claimant’s costs, subject to detailed assessment.
2. Finality is an important public interest, although the court must do justice between the parties. A party who had a proper and sufficient opportunity to present its case at trial should not ordinarily receive a further opportunity merely because it failed to pursue potentially relevant evidence.
3. The proposed evidence could reasonably have been obtained before trial. The issues included whether the claimant had suffered epileptic seizures, and full medical investigations had been undertaken. The emergency admission records were apparently the best evidence concerning the condition and cause of the relevant episodes. It was therefore unacceptable to seek them only after permission to appeal had been granted.
4. The defendant’s counsel should have raised the anonymous note at trial, sought instructions and, if necessary, requested a short adjournment. The inconvenience of doing so did not justify postponing the investigation until the appeal.
5. The anonymous note was speculative and of doubtful reliability. In a thoroughly investigated personal injury claim, it could not be given the significance of other late-emerging evidence. The court also distinguished the evidence appropriate for an appeal, which is a review of the trial decision, from evidence that might be admissible on a rehearing.
6. If the appeal succeeded and the case were reheard, the parties could seek to call such evidence as was properly admissible at the rehearing. The refusal of the present application did not determine that question.

• Court of Appeal (Civil Division): refused the defendant’s application for further disclosure and investigation before the appeal; costs payable by the respondent, subject to detailed assessment.
• High Court, Queen’s Bench Division: Morison J gave judgment for the claimant on 6 March 2002, awarding £12,888 on quantum after liability had been agreed in part.