Sun Bank Plc v Wootten & Anor

Applications to adduce fresh evidence on appeal remain governed by the principles in Ladd v Marshall, although under the CPR they are principles guiding the court’s discretion rather than inflexible rules. The applicant must nevertheless show strong grounds for admission. The court must consider whether the evidence could have been obtained with reasonable diligence, whether it might materially influence the result, and whether it is apparently credible. Fresh evidence from a witness who contradicts trial evidence, gives no satisfactory explanation for the change, and remains unwilling to testify will ordinarily be unsafe and insufficient. The existence of a recording of the witness’s statements does not make those statements newly available. The court has no general discretion to order a retrial merely because the case is serious, the applicant may lose a home, or the failure is attributed to legal advisers.

Sun Bank Plc obtained an order for possession of the Woottens’ matrimonial home in the Medway County Court. The Recorder found that Mrs Wootten had signed the mortgage and rejected her defence that her signature was forged.

Mrs Wootten appealed and sought permission to rely on telephone recordings and other material concerning Alison Dursley. She alleged that Mrs Dursley had forged the signature of Mrs Wootten’s daughter on a deed of consent and that this evidence cast doubt on the reliability of the bank’s witness, Colin Bull. Mrs Dursley had given different evidence at trial and declined to provide a further statement or testify. The central issue was whether the material satisfied the principles governing fresh evidence and justified a retrial.

1. Appeal dismissed. The application for permission to rely on further evidence was refused. The Court of Appeal held that the evidence concerning the deed of consent did not satisfy the principles in Ladd v Marshall [1954] 1 WLR 1489.
2. The principles remain the proper starting point. Since the CPR, they operate as matters necessarily to be considered in the exercise of discretion, rather than as rigid rules. Nevertheless, an applicant must show strong grounds, and the criteria must be examined with considerable care. The court should ask whether the evidence could have been obtained with reasonable diligence for the trial, whether it might have an important influence on the result, and whether it is presumably credible: Hertfordshire Investments v Bubb [2000] 1 WLR 2318; Banks v Cox (unreported, 17 July 2000).
3. The proposed evidence was inconsistent with Mrs Dursley’s trial evidence. No satisfactory explanation showed why she had previously given the alleged false account or why she would now tell the truth. She was unwilling to give evidence, so the recordings or Mrs Wootten’s account of them would be second-hand material from a witness who could attend court but would not do so. That made the evidence unreliable and created a practical obstacle to any retrial.
4. The evidence was also available through Mrs Dursley, who had been Mrs Wootten’s own witness. A later recording of a statement did not alter the fact that the underlying evidence could have been obtained at trial. The uncertainty surrounding the statements and their withdrawal made a retrial unsafe and improper.
5. The court rejected any broader discretion to order a retrial merely because the alleged wrongdoing was serious, the applicant might lose her home, the recording now made proof easier, or responsibility was said to lie with solicitors. Lord Justice Sedley agreed that the decisive point was that Mrs Dursley would not give fresh testimony capable of undermining the Recorder’s decision.

• Court of Appeal (Civil Division) [2004] EWCA Civ 1423: refused permission to rely on further evidence and dismissed Mrs Wootten’s appeal.
• Medway County Court: Mr Recorder Spon-Smith handed down judgment on 9 February 2004, dismissed Mrs Wootten’s defence and granted Sun Bank Plc an order for possession.