Kaur v Matharu & Anor

On an appeal from a district judge to a circuit judge in ancillary relief proceedings, the court has a discretion under Rule 8.1(3)(b) to admit oral or fresh evidence where, in all the circumstances, this would be in the interests of justice. The discretion is not strictly governed by Ladd v Marshall, although fresh evidence should be admitted only exceptionally and sparingly. Any greater latitude in children cases does not justify a different approach merely because a family judge determines a TOLATA issue. Finality, fairness to the opposing party, the adequacy of the evidence already available, credibility findings, the risk of a second attempt to establish the same case, and court resources are material considerations.

The wife’s ancillary relief proceedings concerned the beneficial ownership of a property registered in her husband’s name. The husband and his brother asserted that the brother was the beneficial owner and relied on arrangements involving the husband’s sister, including the redemption of the mortgage. The district judge rejected their evidence, found that the husband was the real funder, and transferred the property to the wife.

On appeal, the circuit judge admitted a detailed affidavit, documents and oral evidence from the sister, holding that the evidence went to a crucial issue and that the interests of justice required its admission. The wife appealed that decision. The central issue was whether the circuit judge had properly exercised the discretion to admit fresh evidence.

1. Appeal allowed. The circuit judge’s order admitting the sister’s fresh evidence was set aside. The application concerned permission to adduce evidence preliminary to the appellate process, so it was not a second appeal within section 55 of the Access to Justice Act 1999 (para 17).
2. Under Rule 8.1(3)(b), the circuit judge has a discretion to admit oral evidence or evidence not before the district judge where, in all the circumstances, admission would be in the interests of justice, whether the appeal is by way of review or rehearing. The discretion is not strictly bound by Ladd v Marshall, but it should be exercised in favour of fresh evidence only in exceptional cases (paras 18–21).
3. The circuit judge was not misdirected in law, but was plainly wrong in the exercise of the discretion. The sister’s evidence principally concerned the TOLATA issue, and there was no justification for a more relaxed approach to fresh evidence merely because that issue had been determined within the family justice system rather than in the Chancery Division (paras 22–23).
4. The judge also wrongly treated the mortgage redemption as the crucial issue. The district judge had already determined the wider question of who funded the purchase, renovations and mortgage instalments, and had made clear credibility findings rejecting the husband’s and brother’s evidence. The existing evidence, the wife’s entitlement to finality and relief, the risk of a second bite at the cherry, and the substantial use of court resources all weighed against admission (paras 24–25).
5. The remaining appellate issues, including any challenge to the discretionary determination transferring the property under the section 25 criteria, remained for determination by a circuit judge in Birmingham on ordinary appellate principles (paras 26–27). The formal order was: application granted; appeal allowed.

• Court of Appeal (Civil Division): allowed the wife’s appeal and set aside the circuit judge’s grant of leave to introduce the sister’s evidence. The remaining appeal was left to proceed on ordinary appellate principles.
• Circuit judge, Birmingham Civil Justice Centre: granted the application to admit fresh evidence and remitted the matter for rehearing.