Khetani v Kanbi

For fresh evidence on appeal, satisfying the threefold test in Ladd v Marshall [1954] 1 WLR 1489 CA—reasonable diligence, likely important influence on the result, and credibility—is necessary but not sufficient. The court may still refuse the evidence where the party knowingly elected to proceed at trial without it, resisted an adjournment to obtain it, and seeks to rely on it only after losing. That conduct may constitute an abuse of process. On the merits, the party asserting that authority was absent bears the burden of proof. A trial judge who is not persuaded that a document bearing the claimant’s apparent signature is false may reject the claim, despite inconsistencies in the opposing account.

Mrs Savitaben Khetani claimed beneficial ownership of proceeds from investment bonds issued by the Indian Overseas Bank. She alleged that her brother, Harish Kanbi, had procured the addition of his name to bonds previously held in the names of their mother and the claimant without authority. HHJ Levy dismissed the claim on 24 November 2005 and refused permission to appeal.

After the trial, the claimant obtained further bank material and, without notice to the respondent, secured permission from Jacob LJ to adduce it on appeal. The respondent applied to set that permission aside. The central issues were whether the further evidence should be admitted and whether the existing evidence established the absence of authority.

1. Fresh evidence. The court unanimously allowed the respondent’s application to set aside permission to adduce further evidence. The threefold test in Ladd v Marshall [1954] 1 WLR 1489 CA was satisfied, or assumed to be satisfied: the claimant had used reasonable diligence, the material was likely to influence the outcome, and it was likely to be credible. The test was necessary but not sufficient.
2. The claimant and her solicitors knew that the bank’s records were important. They elected to proceed with the trial without them, resisted an adjournment to obtain them, and changed position only after adverse evidence had emerged. Seeking to rely on the material after losing was an abuse of process. The permission granted ex parte was therefore set aside and the new evidence was excluded.
3. Merits. On the evidence available at trial, the claimant’s own witness produced a document which appeared to authorise the addition of the defendant’s name to the bonds. The claimant bore the burden of proving that the addition was unauthorised. The trial judge, having heard and seen her evidence, was not persuaded that the apparent signature was not hers. There was no sufficient expert or other evidence establishing forgery. Inconsistencies in the defendant’s account did not discharge the claimant’s burden.
4. Lindsay J would dismiss the appeal. Thomas LJ agreed with both judgments, and Chadwick LJ agreed with Lindsay J’s reasoning. The appeal was dismissed unanimously.

1. Court of Appeal (Civil Division): On 30 November 2006, the court set aside permission to adduce further evidence and dismissed the claimant’s appeal: [2006] EWCA Civ 1621.
2. Central London County Court: HHJ Levy dismissed the claimant’s claim on 24 November 2005 and refused permission to appeal.