Marano v Marano

Fresh evidence on appeal may be refused where it arises late, was not raised below, is untested or of doubtful relevance, and is unnecessary to the proposed appellate arguments. An expert valuation that merely provides a later snapshot does not establish a necessary foundation for an appeal. Refusal is appropriate where neither refusal nor remittal would affect the case advanced.

This was an application within an appeal from the High Court of Justice, Family Division, before Mrs Justice Eleanor King. The applicant sought to adduce fresh evidence comprising a letter from a Californian lawyer and a report by a London commercial property expert. The respondent challenged the evidence on grounds including lateness, lack of prior reliance, doubtful value, limited relevance and lack of testing. The central issue was whether either document should be admitted or the matter remitted.

The Court of Appeal unanimously refused the application.

1. The proposed evidence was late. The Californian-law point had not been run in the court below, was of doubtful value and had no direct application because the respondent was not fundamentally Californian. The court accepted those objections.
2. The commercial property report was also vulnerable because it had not been tested. It would therefore be dangerous for the appellate court to found itself on that evidence. At most, it established a snapshot valuation in January 2010 of property that had been before the judge in March.
3. Neither document was a necessary foundation for the applicant’s intended arguments. Refusing the application, and declining to remit the matter, would not affect the case the applicant intended to advance. As a matter of principle, the application was therefore refused.

Lord Justice Wall and Lord Justice Rimer agreed with Lord Justice Thorpe’s reasons. Order: application refused.

• Court of Appeal (Civil Division): refused the application to adduce fresh evidence.
• High Court of Justice, Family Division: the appeal arose from proceedings before Mrs Justice Eleanor King. The judgment gives no citation or further details of the order under appeal.