Gough v Mummery

In wholly exceptional circumstances, the overriding objective may justify admitting or investigating further evidence even where the evidence does not satisfy the usual test in Ladd v Marshall. The court must balance the interests of justice against procedural fault, including a party’s failure to disclose inconsistent evidence and to provide an adequate explanation at trial. Permission may properly be granted where the further evidence could materially affect the result and fairness requires the court to investigate what occurred.

The claimant applied for permission to appeal against an assessment of damages by His Honour Judge McKenna in the Birmingham County Court. The disputed issue was psychiatric harm allegedly arising from the accident.

Two materially different versions of a doctor’s letter existed. The version placed in the trial bundle attributed the claimant’s mental and behavioural problems to drugs and alcohol. A corrected version also referred to a depressive disorder related to the accident. The discrepancy had not been disclosed to the respondent’s solicitors, and no adequate explanation was available at the hearing. The central issue was whether the further evidence should nevertheless be considered.

1. Application allowed. Permission to appeal was granted, without undue encouragement to the applicant.

2. The further evidence probably showed a genuine medical mistake which had been corrected. It was potentially crucial to the assessment of psychiatric damage. In those circumstances, justice might require the court to provide a better opportunity to investigate the exceptional circumstances in which the two documents had come into existence.

3. The evidence did not satisfy the test in Ladd v Marshall. That did not end the matter. The overriding objective could justify consideration of evidence which failed the ordinary test, particularly where the evidence might materially affect the outcome.

4. The claimant’s solicitors were substantially at fault. They should have disclosed that an earlier and materially different version existed. They should also have been ready at trial to explain the discrepancy and, if necessary, support an application for an adjournment. Those failures weighed strongly against the claimant.

5. Nevertheless, the combination of the potentially decisive evidence and the wholly exceptional circumstances justified allowing the application by a narrow margin. The Court of Appeal was to consider whether, in the circumstances, justice required further investigation.

• Court of Appeal (Civil Division): Permission to appeal from the Birmingham County Court was granted and the application was allowed by Lord Justice Kay.
• Birmingham County Court: His Honour Judge McKenna assessed damages and dealt with the psychiatric-harm evidence. The date of that decision was 28 September 2001.