Choudary v Nawaz & Ors

An appellate court may admit evidence not before the trial judge only with permission under the Civil Procedure Rules 1998, r 52.11(2). The discretion is governed by the overriding objective. The Ladd v Marshall criteria remain relevant: the evidence must not reasonably have been obtainable for trial, must probably have materially influenced the result, and must be apparently credible. They are considerations, not rigid rules. Evidence already available, or obtainable with reasonable diligence, is not fresh. Where the proposed evidence would not affect the merits and the appeal has no real prospect of success, an extension of time and permission to appeal should be refused. Evidence of dealings or discussions alone does not establish partnership membership.

The claimant appealed from a preliminary issue judgment of Leicester County Court. His Honour Judge Mayor QC found that he had not established membership of Northern Accommodation Agency and entered judgment for the defendants, making adverse credibility findings including a finding of forgery. The claimant applied out of time for permission to appeal, an extension of time, a retrial and permission to adduce documents and handwriting evidence. The Court of Appeal therefore had to consider whether the proposed appeal had a real prospect of success and whether the evidence was genuinely fresh, apparently credible and likely to have materially influenced the trial.

Waller LJ gave the judgment, with Hallett LJ and Toulson LJ agreeing.

1. The court refused the extension of time, permission to appeal and admission of fresh evidence. Even if the application had been brought in time, the proposed appeal had no real prospect of success.

2. Under the Civil Procedure Rules 1998, r 52.11(2), evidence not before the lower court required permission. Hertfordshire Investments Ltd v Bubb [2000] 1 WLR 2318 explained that the former requirement of special grounds had gone and that the discretion had to be exercised in accordance with the overriding objective. The principles in Banks v Cox (17 July 2000, unreported); Court of Appeal (Civil Division) Transcript No 1476 of 2000 and Ladd v Marshall [1954] 1 WLR 1489 remained relevant as considerations rather than rigid rules: reasonable diligence, probable material influence on the result, and apparent credibility.

3. The proposed documents were not genuinely fresh. Several were available at trial or could have been obtained with reasonable diligence. The handwriting report was substantially based on copies and could not exclude photocopying, cutting and pasting, or scanning and reprinting. The evidence therefore added little and could not materially affect the findings on partnership membership or forgery.

4. The appeal also lacked merit independently of the forgery finding. The evidence showed, at most, discussions about a partnership, property dealings explained by occasional convenience transactions, and no concluded agreement or evidence of sharing profits or losses. The claimant had not established participation in Northern Accommodation Agency. The conditional observation that a partnership at will is terminable by notice under s 32 of the Partnership Act 1890 did not affect the result.

5. The reliance on rr 32.19 and 31.19 was not pursued. The claimant had notice at trial that authenticity was challenged and had made no protest. The point was therefore too late to raise on appeal.

1. Court of Appeal (Civil Division) — Refused the claimant’s application for an extension of time, permission to appeal and admission of fresh evidence.

2. Leicester County Court — On 23 November 2006, His Honour Judge Mayor QC determined the preliminary partnership issue against the claimant, finding that he had not established membership of Northern Accommodation Agency and entering judgment for the defendants.