Choudhury & Ors v Ahmed

An appellate court should not interfere with a trial judge’s case-management decision to admit further evidence after the evidence has closed unless the judge acted on a wrong principle or outside the proper ambit of discretion. The judge may consider the party’s earlier opportunities to call the witness, tactical decisions not to do so, the limited basis of the application, and whether the proposed evidence could affect the result. Late disclosure or unpleaded evidence does not automatically require a new trial where the issue was exposed in cross-examination and the applicant had a fair opportunity to respond. Points on the merits that were, or could have been, advanced at trial do not ordinarily justify appellate intervention.

The claimants sought £55,000 for alleged unpaid rent arising from the letting and management of an Indian takeaway. Wandsworth County Court dismissed the claim after preferring the defendant’s evidence. At the close of evidence, the claimants sought permission to call Masru Choudhury, who was present at trial, on four questions concerning cheques said by the defendant to represent rent payments. The judge refused the application. Permission to appeal was granted on the basis that the refusal was arguably unfair, particularly because the cheque evidence had not been expressly pleaded. The central issue before the Court of Appeal was whether the refusal fell outside the trial judge’s discretion or made the trial unfair.

The appeal was dismissed, with costs in favour of the defendant.

1. The question was whether refusal to call Masru after the close of evidence was a permissible exercise of the trial judge’s discretion. Appellate interference is justified where the judge acted on a wrong principle or the decision fell outside the ordinary ambit of discretion.
2. In context, the judge was entitled to refuse the application. Although the cheques had not been expressly pleaded and some were produced late, the defendant’s case that payments were to be credited against rent had emerged from the evidence, the accountant’s statement, the cheques and the cross-examination of Monzu. The claimants knew the substance of the case before the defendant completed his evidence.
3. Masru was present and the claimants had earlier opportunities to seek permission to call him, including after Monzu’s evidence and during the short adjournment. Their decision not to do so was a tactical decision. The application was limited to four questions, and the claimants did not identify those questions to the appellate court. The judge could properly conclude that the proposed evidence could not alter the result.
4. The judge had heard the whole trial and was entitled to assess the timing and consequences of the application. His reasons were sufficient in the circumstances. The trial was not unfair and no injustice was established. The case depended essentially on credibility, and further arguments concerning the cheques, rent reduction and the defendant’s gambling pattern were matters for trial rather than grounds for a retrial.
5. The order dismissing the claim and awarding costs to the defendant was upheld.

1. Court of Appeal (Civil Division): On appeal under [2005] EWCA Civ 1102, the court dismissed the appeal and awarded costs to the defendant.
2. Wandsworth County Court: His Honour Judge Medawar QC dismissed the claim on 8 September 2004 and ordered the claimants to pay the defendant’s costs.