Daly & Anor v Sheikh

On an application to rely on evidence not raised at trial, the appellate court must consider whether the evidence might have made a real difference to the first-instance determination. Where that question is difficult, and the evidence potentially undermines a document central to the decision, the application may properly be adjourned for consideration by a full appellate court with the respondent on notice and an opportunity to make submissions. The court need not determine admissibility or permission at the preliminary application. If the evidence is admitted and materially affects the findings, a new trial may be required.

The applicants claimed damages and repayment under a building contract. The principal issue at first instance was whether the contract was with the respondent personally or with his company, and whether there had later been a novation. Mr Justice Gray found that there had been no novation and that the applicants’ case failed.

After the hearing, the first applicant obtained an expert document examiner’s report stating that the signature and date on the relevant contract were not authentic. The applicants sought permission to appeal and permission to rely on that further evidence, although the authenticity issue had not been raised at trial. The central question was whether the evidence should be admitted and whether it might affect the first-instance decision.

Lord Justice Chadwick adjourned the application for permission to appeal and to rely on further evidence to a hearing before a full court of two Lord Justices. The respondent was to receive notice, and the appeal was directed to follow immediately if permission were granted.

1. The challenge to the authenticity of the contract could have been raised at trial or before judgment. Although the applicant’s late discovery was understandable because the trial issue concerned the date of signature rather than the authenticity of the signature, the evidence was nevertheless late.
2. In deciding whether the further evidence should be admitted, the appellate court had to consider whether, if the evidence had been before the first-instance judge, it might have made a real difference to the determination.
3. The expert report directly challenged the authenticity of the document on which the judge’s reasoning had materially relied. The question of admissibility was therefore sufficiently difficult to require fuller consideration, submissions on behalf of the respondent and more time than was available on an application of this nature.
4. The court made no final determination on the admissibility of the report or on permission to appeal. Chadwick LJ observed that, if the evidence were admitted, the likely consequence would be an order for a new trial.

1. Court of Appeal (Civil Division): On 7 May 2002, Lord Justice Chadwick adjourned the applications for permission to appeal and to rely on further evidence to a hearing before two Lord Justices. The appeal was to follow immediately if permission were granted. The decision is reported at [2002] EWCA Civ 810.
2. High Court: Mr Justice Gray determined the preliminary issue on 7 March 2002, finding that there had been no novation and that the applicants’ claim against the respondent failed.
3. High Court: Master Leslie had directed on 13 November 2001 that the preliminary issue should be tried.