Tsao v Pempengco

Permission to appeal and permission to adduce new evidence are matters for the appellate court’s discretion. Although the court has moved beyond the former restrictions associated with Ladd v Marshall, new evidence is admitted only where the court considers it just, fair and necessary, having regard to the overriding objective and the circumstances of the case. A litigant who knew that expert evidence was required on a central issue, but chose not to obtain it at trial, will face a strong obstacle to reopening that issue on appeal. A preliminary and limited post-judgment report will ordinarily carry insufficient weight to displace a carefully reasoned first-instance decision based on substantial evidence.

The landlord sought permission to appeal findings made by District Judge Nicholson in the West London County Court. The judge awarded the landlord rent arrears, awarded the tenant damages for disrepair, dismissed the possession claim, granted an injunction requiring remedial works, and ordered the landlord to pay 80% of the tenant’s costs.

The landlord challenged findings concerning causation, notice, expert evidence, the tenant’s conduct, the injunction, and the conduct of the trial. He also sought to amend the proposed notice of appeal to rely on a preliminary expert report obtained after judgment. The central issue was whether the proposed new evidence and complaints disclosed a proper basis to reopen the first-instance decision.

1. Permission refused. The original grounds disclosed no error of law. The district judge’s factual conclusions were within the range of acceptable reasoning on the evidence, save that an apparent £744 deduction from the landlord’s entitlement was erroneous.
2. The proposed complaint of procedural unfairness was rejected. The judge’s interventions, viewed in the context of a long trial involving a litigant in person, did not approach unfairness or vitiate the conclusions reached.
3. Evidence not before the lower court is not received on appeal unless the appellate court orders otherwise. The court has moved beyond the former restrictions associated with Ladd v Marshall, but it must still consider carefully whether admission is just, fair and necessary, bearing in mind the overriding objective and the circumstances of the litigation.
4. The landlord knew before trial that expert evidence was central to the competing explanations for the dampness. His failure to obtain evidence addressing that issue did not justify reopening it after an adverse result. The later report was preliminary, based on a limited inspection, and insufficient to undermine the first-instance evaluation of the available expert and other evidence.
5. The proposed amendment relying on the later report was refused. The application for permission to appeal was refused.

• Court of Appeal (Civil Division): On 20 September 2007, permission to appeal from the order of District Judge Nicholson was refused. Permission to amend the proposed notice of appeal was also refused.
• West London County Court: The district judge awarded rent arrears to the landlord, damages for disrepair to the tenant, dismissed the possession claim, granted an injunction for remedial works, and ordered the landlord to pay 80% of the tenant’s costs.