Burke & Anor v Giumba & Anor

The Court of Appeal may adjourn an application to permit limited further evidence where a short adjournment is fair and the evidence can conclusively resolve a late-raised issue. This remains so where the proposed evidence was arguably available at trial and the rule in Ladd v Marshall is engaged. The court should respect the trial judge’s fact-finding role and guard against the late production of documents, but may allow focused disclosure where fairness requires it.

The defendants appealed from the Central London County Court. Lord Justice Ward had adjourned the appellant’s application for permission to appeal so that an allegation concerning a payment of approximately £4,700 could be investigated. The allegation was that the payment had reached an account operated by one of the respondents.

After further evidence explained a change in the respondent’s Barclays account number, the appellant challenged the adequacy of disclosure. The central issue was whether the Court of Appeal should require limited further bank statements before determining the matter.

1. Application adjourned. The court directed the respondent to produce full statements for the relevant Barclays credit-card and current accounts for June and July 1999. Appropriate redactions could be made to preserve the confidentiality of unrelated transactions. Costs were reserved.
2. The court recognised the importance of upholding the trial court’s function, respecting its findings on credit and reliability, and applying the rule in Ladd v Marshall against reliance on documents readily available at trial.
3. Those considerations were not decisive. A short adjournment was fair both to the appellant and to the respondent because the requested documents could conclusively resolve the late-raised allegation.
4. The further disclosure was therefore confined to documents capable of determining whether the relevant payment had been credited to an account operated by the respondent. The constitution was to be reconstituted to determine the issue finally.

• Court of Appeal (Civil Division): the application arising from the appeal was adjourned for limited further evidence and a later determination.
• Central London County Court: His Honour Judge Cowell had investigated the destination of the payment and was not satisfied that the account number identified by the appellant was operated by the claimant.
• Court of Appeal, permission stage: Ward LJ had previously adjourned the appellant’s application for permission to appeal for further investigation.