Couwenbergh v Valkova

Fresh evidence may be admitted on appeal where it could not reasonably have been obtained for trial, is apparently credible, and would probably affect the result. Under Ladd v Marshall [1954] WLR 1489, apparent credibility is a threshold assessment; the evidence need not be incontrovertible. Inconsistencies, absent expert corroboration and competing expert evidence may be matters for investigation at a rehearing. Where the conditions are met, the Court of Appeal may remit the matter for rehearing rather than require a fresh fraud action. The choice is case-specific and should reflect justice, practical economy, and the need to reconsider consequential costs.

Mrs Alice Adam’s will dated 24 October 1990 was admitted to probate by Carnwath J in the Chancery Division on 31 July 1998. Mr Couwenbergh, connected with the earlier 1978 will, had challenged the will’s validity but lost. After police inquiries, statements by the Italian witnesses suggested that they had signed outside the deceased’s presence and had not witnessed due execution. Mr Couwenbergh sought a second appeal based on that fresh evidence; permission had previously been granted by the Court of Appeal in [2004] EWCA (Civ) 676.

The central questions were whether the evidence satisfied the conditions for admission and whether the order should be set aside with the matter reheard, or whether the alleged fraud should be pursued in a fresh action.

Appeal allowed. Lord Justice Ward gave the leading judgment, with Lord Justices Dyson and Jacob agreeing.

1. Fresh evidence. The material evidence concerned due execution of the Italian Will. The statements of the Italian witnesses were not merely evidence of forgery. They asserted that the witnesses had not been present when Mrs Adam signed and had signed documents in the hall.
2. Application of the fresh-evidence test. The court applied the three requirements in Ladd v Marshall [1954] WLR 1489. Reasonable diligence did not require expensive and time-consuming attempts to trace the witnesses when the disclosed documents appeared to establish due execution. The evidence was apparently credible. Although Lorenzo’s statements were inconsistent and there was no supporting expert evidence for the alleged forgery, Orazio’s sworn statement could not be discounted as unlikely or improbable. The evidence therefore met the credibility threshold without being incontrovertible.
3. Probable influence on the result. If accepted, the evidence would decisively undermine the Italian Will’s execution. It could also affect the findings on knowledge and approval, the validity of the Doyle Will and the possible admission of the 1978 Will. All three requirements were satisfied.
4. Appropriate procedure. Hamilton v Al Fayed [2001] EMLR 15 and Sohal v Sohal [2002] EWCA Civ 1297 supported a case-specific choice between a rehearing and a fresh action. Jonesco v Beard [1930] AC 298 described the fresh-action approach, but the court found no substantial advantage in starting afresh. Remittal saved time and costs and allowed the original costs order to be reconsidered if deception affected the result.
5. Orders. The order of Carnwath J, including the order for Mr Couwenbergh to pay the respondent’s trial costs, was set aside. The matter was remitted to the Chancery Division for rehearing. Trial costs were reserved to the rehearing judge. The costs of the present appeal followed the event, while the costs of the earlier unsuccessful appeal were left undisturbed. The costs judge was given power under section 11 of The Legal Act 1989 to consider whether the Legal Services Commission should pay the appellant’s appeal costs.

1. Court of Appeal (Civil Division): In the present judgment, the appeal was allowed, the High Court order was set aside and the matter was remitted to the Chancery Division for rehearing.
2. Court of Appeal (permission stage), [2004] EWCA (Civ) 676: Permission was granted for the second appeal.
3. High Court, Chancery Division: On 31 July 1998 Carnwath J pronounced for the force and validity of the 24 October 1990 will and ordered the claimant to pay the defendant’s costs.