Daly & Anor v Sheikh

On an application to adduce fresh evidence on appeal under Civil Procedure Rules 1998, r 52.11(2), the three Ladd v Marshall criteria remain powerful guidance: reasonable diligence, probable important influence on the result, and credibility. Fresh expert evidence should not be admitted where the underlying material was available before trial and would not probably alter the findings. A new expert cannot be used simply to repair an unsuccessful evidential case. The appeal was dismissed.

The respondents contracted with Middlesex Design and Build Ltd for extension works. They alleged that the appellant later agreed orally to undertake the contract personally in return for cash payments. A preliminary issue was ordered on whether the appellant or the company was the contracting party and whether there had been a novation.

At the first trial, Gray J found against the alleged novation, principally because a contract form appeared to have been signed and dated on 30 May 2000. The Court of Appeal later admitted handwriting evidence, allowed an appeal and ordered a retrial. On retrial, Pitchers J found that the signature and date on that form had been forged and accepted the respondents’ account. The appellant’s second appeal sought to adduce further handwriting and computer-forensic evidence and, alternatively, to overturn the retrial findings. The central issues were whether the fresh evidence satisfied the appellate test and whether the findings below were unsafe.

The application to adduce fresh evidence was refused and the appeal was dismissed. Rix LJ gave the leading judgment, with Mummery and Ward LJJ agreeing.

1. Fresh evidence. Although CPR 52.11(2) governs the power to receive new evidence, the guidance in Ladd v Marshall [1954] 1 WLR 1489 remains powerful persuasive authority. The court must consider whether the evidence could have been obtained with reasonable diligence, whether it would probably have an important influence on the result, and whether it is presumably credible. This approach reflects the balance between finality in litigation and achieving the right result, as explained in Hamilton v Al Fayed (21 December 2000, unreported).
2. The appellant failed the reasonable-diligence requirement. The additional signatures were in documents held by his solicitors before the retrial, and there was no satisfactory explanation for failing to obtain or deploy them earlier. The further expert report would not probably have influenced the result. It was effectively an attempt to replace an expert whose evidence had not satisfied the trial judge, rather than genuinely newly discovered evidence. The computer-forensic report could also have been obtained earlier and added nothing material.
3. Merits. The retrial judge was entitled to prefer the respondents’ handwriting expert and to find that the signature and manuscript date were not written by Mr Daly. The document therefore could not assist the appellant’s case or establish the chronology. Even assuming the signature was genuine, the unauthenticated date could not outweigh the relative chronology supported by the witnesses.
4. References to the company in later correspondence and in the insurance claim did not conclusively identify the company as the contracting party. The evidence that the appellant personally requested and received the cash payments, together with Mr Hamilton’s independent support for the respondents’ account, provided compelling support for personal contractual responsibility. The costs orders were maintained, the freezing order was continued, and the appellant was ordered to make an interim payment of £10,000 towards costs.

• Court of Appeal (Civil Division): In the present appeal, the application for fresh evidence was refused and the appeal from Pitchers J was dismissed: [2004] EWCA Civ 119.
• Court of Appeal (Civil Division): On 24 October 2002, the court admitted new handwriting evidence, allowed the earlier appeal and ordered a retrial.
• Queen’s Bench Division: Pitchers J conducted the retrial in April 2003, found the signature and date on the contract form forged, and concluded that the contract had been novated to the appellant personally.
• Queen’s Bench Division: Gray J’s first trial judgment, handed down on 7 March 2002, rejected the alleged novation, principally because he treated the contract as signed on 30 May 2000.