Nicolet v Halim

Fresh evidence discovered after trial may be admitted on appeal where it would materially influence the result, even though the party seeking to rely on it could be criticised for not finding it earlier. The court must weigh that criticism and the resulting expense or delay against the doubt cast on the judgment and the demands of justice. Where the evidence undermines credibility findings on connected issues, the proper remedy may be to set aside the judgment and order a retrial of all materially affected issues. A retrial should ordinarily be conducted by a different judge where a fresh assessment of the whole evidence is required.

The defendant appealed from the Oxford County Court judgment of His Honour Judge Morton Jack, which ordered her to give the claimant possession of a flat and pay £225,076. The trial judge had found that the claimant was the legal and beneficial owner of the flat and that the money claim represented a repayable loan.

After trial, the defendant discovered documents, including personal letters from the claimant, which supported her case about the flat and suggested that the claimant accepted owing her money. The central issues were whether the documents should be admitted as fresh evidence and, if so, whether the retrial should be confined to the flat dispute or should also include the money claim.

1. Appeal allowed. The judgment below was set aside and a retrial was ordered at the Central London County Court before a different judge. The appeal costs were ordered to be costs in the retrial.
2. The newly discovered documents were admitted. The defendant could be criticised for failing to find them before trial, and admitting them would cause expense and delay. However, the circumstances of their discovery were credible, their authenticity was not challenged, and the personal letters materially contradicted the claimant’s trial evidence. In Ladd v Marshall terms, they would have had an important influence on the result. Justice therefore required a retrial on the flat issue.
3. The money claim was also remitted for retrial. Although the trial judge had regarded the defendant’s claim to compensation as incredible, the documents as a whole cast further doubt on the claimant’s credibility and contained passages indicating that he accepted owing the defendant money. The money dealings were closely connected with the acquisition of the flat, so it would be unsatisfactory to retry only the flat issue.
4. The order for a different judge reflected the desirability of a fresh assessment of the merits on all the available evidence and did not imply criticism of the trial judge.

• Court of Appeal (Civil Division) — In [2005] EWCA Civ 91, the appeal was allowed, the Oxford County Court judgment was set aside, and a retrial was ordered.
• Oxford County Court — His Honour Judge Morton Jack gave judgment for the claimant for possession of the flat and £225,076.