James & Charles Dodd (A Firm) v O'Callaghan

Permission to adduce fresh evidence on appeal is governed by Civil Procedure Rules 52.11(2)(b) and the three criteria in Ladd v Marshall [1954] 1 WLR 1489. The evidence must have been unobtainable for the trial with reasonable diligence, must have had an important influence on the result, and must be apparently credible. Failure on the diligence or materiality requirement is sufficient. Evidence which was available to the applicant before trial, or which could not realistically have affected the result, should be excluded. A new allegation not advanced below cannot ordinarily be introduced on appeal.

The respondents, assignees of a mortgage, obtained judgment in the Croydon County Court for the balance due after the mortgaged flat was sold following possession proceedings. The appellant applied for permission to appeal and sought to rely on new evidence concerning an alleged earlier offer for the flat and the later sale of a neighbouring flat at a higher price.

The county court had concluded that the mortgagee took reasonable steps to obtain a proper price. The central issues were whether the proposed evidence satisfied the requirements for admission on appeal and whether it could have materially affected that conclusion.

Lord Justice Laws delivered the judgment, with Lord Justice Dyson agreeing. The application for permission to appeal and to adduce fresh evidence was dismissed, with costs summarily assessed at £5,027.25.

1. Governing principles. Under Civil Procedure Rules 52.11(2)(b), the appeal court will not receive evidence that was not before the lower court unless it orders otherwise. The criteria in Ladd v Marshall [1954] 1 WLR 1489, reaffirmed as important in Hertfordshire Investments Ltd v Bubb [2000] 1 WLR 2318 and Mostyn Neil Hamilton v Mohamed Al Fayed (CA 21.12.00), remain applicable: reasonable diligence, important influence on the result, and apparent credibility.
2. Offer letters. The letters concerning an alleged offer of £54,000 could have been produced at trial because they were apparently in the appellant’s possession. In addition, the discrepancy between the figure in the Abbey National file copy and the copy produced on appeal caused the court to doubt their authenticity. The first and third Ladd v Marshall criteria were therefore not met.
3. Evidence concerning the neighbouring flat. The evidence of a later sale for £45,500 or £46,000 could also have been obtained with reasonable diligence. The appellant had known the relevant information for many months or years and had been unable to produce the hard evidence required at trial.
4. Materiality. Even if the new evidence were credible, it could not significantly affect the result. The marketing history, professional valuations, viewings, price reduction and eventual sale at £30,000 compellingly supported the county court’s conclusion that the mortgagee had taken reasonable steps to obtain a proper price.
5. An unpleaded allegation of collusion between the valuers and estate agents, not advanced before the county court, was wholly unsuitable for introduction at this stage.

• Croydon County Court: His Honour Judge Ellis gave judgment on 14 January 2001 for the respondents in the sum of £56,037.22.
• Court of Appeal (Civil Division): The application for permission to appeal was dismissed with costs.