Clark & Anor v Thorpe & Anor

Fresh evidence on appeal should be admitted where it would probably have an important influence on the result, even though it need not be decisive. Where such evidence could materially affect the assessment of remedial costs, expert evidence and consequential diminution in value, the appellate court may set aside the quantum decision and remit the assessment for rehearing. Liability may remain undisturbed where the new evidence affects only damages. The approach was applied by reference to the principles in Ladd v Marshall [1954] 1 WLR 1489.

The claimants purchased a house after the defendants stated in the Seller’s Property Information Form that no conversion works had been carried out. The trial judge found that the misrepresentation induced the purchase and awarded damages, including £20,000 for diminution in value. The defendants appealed on the basis of fresh invoices showing that a subcontractor had charged substantially less than the contractor had charged the claimants. The appeal was confined to whether that evidence could affect the assessment of remedial costs and damages.

1. Appeal allowed as to quantum. The finding of liability was left standing. The order was varied so that there would be judgment for the claimants with damages to be assessed, and the assessment was remitted to a different judge.
2. The admissibility and significance of the fresh evidence fell to be considered under the principles in Ladd v Marshall [1954] 1 WLR 1489, including whether the evidence would probably have had an important influence on the result, although it need not have been decisive.
3. The subcontractor’s invoices showed a charge of £2,600 plus VAT for supplying and fitting the staircase, whereas the contractor had charged the claimants £6,050 plus VAT for the corresponding work. This was strong prima facie evidence that the contractor’s charge was excessive.
4. The new evidence was likely to affect not only the assessment of that invoice but also the judge’s view of the relative merits of the competing expert evidence and whether the other invoices were similarly unreasonable. If the accepted remedial-cost figure of about £25,000 was substantially too high, that could affect the assessment of diminution in value.
5. The Court of Appeal could not itself determine what effect the new material would have had on the assessment. Justice therefore required a rehearing of damages before a different judge. Lord Justice Longmore and Lord Justice Patten agreed with Lord Justice Dyson.

• Court of Appeal (Civil Division): Allowed the appeal on quantum, set aside the damages assessment, preserved liability, and remitted damages for assessment by a different judge.
• Chester County Court: HHJ Mackay found that the claimants had been induced by the misrepresentation and awarded damages, including £20,000 for diminution in value.