Lifely v Lifely

An appellate court may admit fresh evidence only exceptionally. It must apply the three Ladd v Marshall criteria, while exercising its discretion consistently with the overriding objective and the competing interests of finality and a just result.

Evidence said to have been obtained from private material is not automatically excluded. The court must make a fact-sensitive and proportionate assessment of the privacy interest and the fair-trial interest, including the significance of the evidence and the gravity of any impropriety. Delay may also be material, but a short and reasonable delay will not preclude relief where justice requires that the true result be reached.

Two brothers disputed the terms of their farming partnership and the ownership of milk quota. The Chancery judge preferred the respondent’s evidence, held that all quota was held equally for the three brothers, and ordered accounts.

After further preparation for the accounts inquiry, the appellant said that he found the respondent’s 1990 diary among papers stored on his farm. He contended that an entry made shortly before their father’s death contradicted the respondent’s trial account and undermined the credibility findings. The respondent alleged that the appellant had possessed the diary before trial and objected to its use as private information.

The appeal concerned whether the diary was fresh evidence, whether it should be excluded, whether delay barred relief, and whether any rehearing should extend beyond the milk-quota issue.

Appeal allowed. Ward LJ, with whom Dyson and Lloyd LJJ agreed, extended time, granted permission to appeal and to adduce the diary, and remitted the whole matter for a rehearing before a Chancery judge.

1. Under Civil Procedure Rules 1998, r 52.11(2), fresh evidence is ordinarily excluded. The court applied the three criteria in Ladd v Marshall [1954] 1 W.L.R. 1489, informed by the overriding objective and the balance between finality and a correct result. The diary was genuine and apparently credible. On its face it was inconsistent with the respondent’s case and would probably have an important influence on the result.

2. Having heard live evidence, the court found that the appellant and his wife were reliable and that the respondent’s mother was not. It rejected the allegation that the appellant had removed the diary years earlier. He therefore could not, with reasonable diligence, have obtained it for the original trial. All three Ladd v Marshall requirements were met.

3. The alleged private character of the diary did not require exclusion. The court assumed that there was an arguable Article 8 privacy claim, but held that admissibility depended on a proportional, fact-sensitive balance between privacy and the Article 6 interest in a fair trial. There had been no trespass or burglary, the diary had been left on the appellant’s property for years, and it ought to have been disclosed. Exclusion risked a result remote from the truth and was wholly disproportionate.

4. Delay is a relevant discretionary consideration even though it is not a Ladd v Marshall criterion. The delay while the appellant assessed the diary and obtained advice was not such as to preclude relief. The interests of justice predominated.

5. The rehearing could not be confined to milk quota. The original judge’s determination of the other issues also depended on preferring the respondent’s credibility. The fresh evidence could affect that assessment across all issues, so the entire case had to be reheard.

• Court of Appeal (Civil Division) — allowed the appeal, permitted reliance on fresh evidence, and remitted all issues for rehearing: [2008] EWCA Civ 904.
• Chancery Division, Bristol District Registry — His Honour Judge Weeks QC held that the milk quota was held in equal shares for the three brothers, preferred the respondent’s evidence on the remaining issues, and ordered accounts. No citation for that judgment is stated.