Jemma Trust Company Ltd v Kippax Beaumont Lewis & Ors

On a renewed application in a pending appeal, a party who deliberately chose not to call evidence at trial cannot ordinarily introduce it on appeal merely because the trial judge reached an unexpected conclusion. Further evidence should be admitted only where there is a compelling need to do justice. Where permission has been granted to argue that it was reasonable to believe advice had been given, the appellate court may need to form a prima facie view of the meaning of the underlying conference note, without being required to decide that it contained positive advice.

The judgment concerned a renewed application by the respondents in a pending appeal from the Chancery Division before Etherton J. The underlying dispute included findings about whether tax counsel had advised the executors to execute an assent vesting the Hulton Land Fund in themselves as trustees. The respondents sought permission to cross-appeal on grounds 1 to 3 and applied to adduce evidence from Mr Venables QC, who had attended the relevant consultation but had not been called at trial. The central issues were whether that further evidence should be admitted and whether permission should extend to the argument that it was reasonable for the respondents to believe that the advice had been given.

1. Further evidence. Lord Justice Chadwick dismissed the application to adduce evidence from Mr Venables. The decision not to call him at trial had been deliberate and had followed consideration of commercial factors. The respondents had judged that their existing evidence and the attendance note were sufficient. The appellate process cannot operate efficiently if evidence deliberately omitted at trial is introduced on appeal merely because the judge reached a different conclusion.
2. The court also considered the evidential context. In investigating a meeting held several years before trial, the court was likely to place little weight on recollections and greater weight on the contemporary written record. If Mr Venables gave evidence, it would likely be challenged, potentially requiring cross-examination or a new trial. There was no compelling need to admit it in order to do justice.
3. Permission to cross-appeal. The respondents were already entitled to argue that it was reasonable for those involved to believe that Mr Venables had advised in favour of the assent. Determining that issue would necessarily require the appellate court to form its own prima facie view of the meaning of the conference note and the scope for a reasonable alternative interpretation. That did not require the court ultimately to conclude that the note contained positive advice. The order of 21 September 2004 was varied to include permission to appeal on ground 3.
4. The respondents were ordered to pay the appellants’ costs of the application to adduce further evidence. The remaining costs were ordered to be costs in the appeal.

• Court of Appeal (Civil Division): On the renewed application, dismissed the application to adduce further evidence, varied the earlier order to grant permission on ground 3, and made the stated costs orders.
• Chancery Division: Etherton J made findings concerning the advice allegedly given at the November 1996 consultation and the interpretation of the attendance note. The judgment appealed from was not otherwise cited by a neutral citation.