Dhami & Anor v Lloyds TSB General Insurance Ltd

On an application to adduce evidence not before the first-instance court, the appellate court applies the three Ladd v Marshall conditions in the context of the overriding objective in Civil Procedure Rules Part 1. The evidence must have been unobtainable with reasonable diligence, probably capable of materially influencing the result, and apparently credible. Failure on any condition justifies refusal. Where the fresh material is contradictory, not credible, would reinforce rather than change the original findings, and could have been obtained before trial, admitting it is neither proportionate nor consistent with the overriding objective.

The appellants claimed almost £129,000 under a building and contents policy for fire, burglary and related losses. The respondent repudiated the policy for non-disclosure of their son’s non-motoring convictions. The Recorder found that the son normally lived at the property, that the appellants knew of the convictions, and that the non-disclosure was material. She dismissed the claim and refused permission to appeal.

On appeal, the appellants sought to adduce statements and documents said to show different living arrangements. The central question was whether that fresh evidence should be admitted.

1. Disposition. Lord Justice Wall, giving the judgment of the court, recorded that the appeal had been unanimously dismissed, the fresh evidence refused, and the appellants ordered to pay the respondent’s costs, subject to assessment if not agreed. Lord Justices Carnwath and Waller agreed.
2. The Recorder’s findings could not be faulted. Since the appeal depended on admission of the fresh evidence and a retrial, there was no basis for appellate success without receiving that evidence.
3. Rule 52.11(2)(b) of the Civil Procedure Rules provides the procedural context: unless the court orders otherwise, an appeal court will not receive evidence that was not before the lower court. The principles in Ladd v Marshall [1954] 1 WLR 1449 remain relevant, but applications must be decided in the context of the overriding objective in Civil Procedure Rules Part 1.
4. The proposed evidence failed all three Ladd v Marshall conditions. It was not apparently credible, because it contradicted the son’s earlier statements. It would probably have reinforced rather than altered the Recorder’s decision. It could also have been obtained before trial, since residence had long been in issue.
5. Admission would not have been proportionate or consistent with the overriding objective. The application was therefore refused and the appeal dismissed.

• Court of Appeal (Civil Division): On 25 November 2009, unanimously refused the application to admit fresh evidence, dismissed the appeal and ordered the appellants to pay the respondent’s costs, subject to assessment if not agreed.
• Central London County Court: Miss Recorder Sadd dismissed the appellants’ insurance claim on 26 March 2009, ordered them to pay costs and refused permission to appeal.