London Borough of Brent v Smart

On an appeal relying on new evidence, the Ladd v Marshall guidelines remain the governing framework: the evidence should normally have been unavailable at trial despite reasonable diligence, be likely to have an important influence on the result, and be apparently credible. The guidelines are not rigid rules. The court must also consider the justice of the case and the overriding objective. New evidence suggesting perjury or forged documents may justify a retrial where it presents a credible case. Where the same allegation of fraud or falsehood was already central at trial, however, the court should scrutinise the first and third guidelines particularly closely. Evidence that was discoverable before trial, is vague, or is not apparently credible will not ordinarily justify a retrial.

The claimant local authority obtained a possession order against the defendant secure tenant after the Central London County Court accepted that he had sub-let the whole flat. The trial judge found that the alleged subletting destroyed the secure tenancy under section 93(2) of the Housing Act 1985.

The defendant appealed principally on the basis of four new witnesses and related evidence. He also obtained permission during the appeal to restore a ground alleging that the judge had failed to consider whether possession was reasonable, but the Court of Appeal treated the trial as a stark credibility contest and did not pursue that ground. The central issue was whether the new evidence satisfied the applicable requirements and made a retrial necessary in the interests of justice.

1. Appeal dismissed. The possession order remained in force. The stay was lifted and the usual costs order was made against the legally aided appellant.
2. The court applied the three Ladd v Marshall guidelines. The new evidence had to be shown to have been unavailable at trial despite reasonable diligence, to be likely to have an important influence on the result, and to be apparently credible. These were guidelines rather than inflexible rules. The court also had regard to the justice of the case and the overriding objective under Part 1 of the CPR.
3. The first guideline required a satisfactory explanation for why the evidence had not been obtained earlier. The defendant knew that fraud and falsehood were central to his case and knew, or should have known, the potential witnesses who could support it. His explanations for obtaining the evidence late were unsatisfactory.
4. The second guideline could have been satisfied because credible evidence going to the central issue might have had an important influence at a retrial. It did not follow that the evidence would have been decisive.
5. The third guideline was not satisfied. The evidence of the witness heard by the court was internally unreliable and lacked apparent credibility. The absent witnesses' evidence was vague, untested, or produced at the last moment without a satisfactory explanation. The possibility of a credible case of perjury or forgery can justify a retrial, but this evidence did not present such a case.
6. Although the defendant's loss of legal representation shortly before trial was unfortunate, he had had an opportunity to present his case at trial and a further opportunity on appeal. The interests of justice did not require a four-day retrial.

• Court of Appeal (Civil Division): [2005] EWCA Civ 434 dismissed the appeal from the possession order, lifted the stay, and made the usual costs order against the legally aided appellant.
• Central London County Court: His Honour Judge Levy ordered possession after finding that the defendant had sub-let the whole flat; the judgment date is not stated in the judgment.