Steel & Ors v Newservice Ltd.

Evidence is not fresh on an appeal where the applicant knew the relevant matters before trial and could have obtained and used the evidence with reasonable diligence. Evidence obtained but deliberately unused does not qualify. An appellate court will not order disclosure from solicitors or a third party as a roundabout means of proving matters that could have been addressed at trial. The proposed material must genuinely qualify as fresh evidence, and the application must provide a proper basis for the requested disclosure.

The applicants, three leaseholders, sought permission to appeal a Wandsworth County Court ruling that the landlord had served a counter-notice under the Leasehold Reform Act 1993. The appeal was eleven months out of time. Pending the renewed permission application, the first applicant applied to adduce evidence concerning service of the counter-notice and DX membership. He also sought disclosure from the landlord’s former solicitors and DX Network Services. The relevant information had been known or obtainable before trial but had not been used. The central issue was whether the proposed evidence was fresh and whether third-party disclosure should be ordered.

Applications refused. Lord Justice Gage held that the applications for fresh evidence and disclosure had no merit. Lord Justice Toulson agreed and described the application to adduce further evidence as hopeless.

1. Fresh evidence. The proposed evidence about the delivery of the counter-notice and the relevant DX membership was not fresh. The applicant knew of the matters before the county court trial. He had investigated DX membership, could have attended the trial, and could have used cross-examination or called evidence. The material therefore did not meet the requirement that it could not have been obtained with reasonable diligence for use at trial. In relation to the former solicitors, the matters could have been addressed at trial. In relation to DX Network Services, there was no witness statement properly setting out the applicant’s alleged findings.
2. Disclosure. Disclosure from the former solicitors and DX Network Services was refused. It was sought to establish matters already known or capable of being proved at trial. The court would not permit third-party disclosure to become a roundabout route for introducing evidence that was not genuinely fresh.
3. Scope of decision. The court was concerned only with the two applications. It did not determine the renewed oral application for permission to appeal or the separate issue of the eleven-month delay, although that delay would present a considerable hurdle.

The applications were refused.

• Court of Appeal (Civil Division): On 15 May 2007, in [2007] EWCA Civ 582, refused the applications to adduce fresh evidence and for disclosure. The court was not deciding the renewed application for permission to appeal.
• Wandsworth County Court: Miss Recorder Read’s order dated 21 November 2005 held that the counter-notice had been served by DX.
• Lands Tribunal: Proceedings under section 24 of the Leasehold Reform Housing and Urban Development Act 1993 were dismissed as res judicata on 9 May 2006, the tribunal treating the county court decision as binding.