Purushothaman v Malik & Ors

Fresh evidence may be admitted on appeal where it could not reasonably have been obtained for trial, would probably materially influence the result, and is apparently credible. In exceptional cases involving evidence that may have been systematically tainted, the reasonable-diligence question is assessed in the light of the alleged systemic problem. Where such evidence may have deprived a party of a fair trial, the overriding objective and the administration of justice may justify extending time and permitting an appeal out of time. Permission to appeal remains case-specific, and lower courts must conduct the relevant exercise separately in each case.

Four county court claims arising from road traffic accidents concerned the recoverability of credit-hire charges and the applicable basic hire rate. The county court judges relied on evidence supplied by Autofocus Ltd. Accident Exchange Ltd later investigated Autofocus and alleged that its reports were systematically falsified or based on research that had not been carried out.

The applicants sought permission to adduce fresh evidence, extensions of time, and permission to appeal. They sought appeals by way of review, with the ultimate aim of obtaining retrials of the basic-hire-rate issue. The central questions were whether the fresh evidence satisfied the governing test, whether time should be extended, and whether permission to appeal should follow.

1. Fresh evidence. The court held that the principles in Ladd v Marshall [1954] 1 WLR 1489 remained relevant and persuasive under the overriding objective. Fresh evidence should be admitted where it could not have been obtained with reasonable diligence for trial, would probably have an important influence on the result, and is apparently credible. The credibility limb was not disputed.
2. The alleged evidence of a systemic failure or fraud by Autofocus materially affected the reasonable-diligence question. The court was not satisfied that the problem would have been obvious had Accident Exchange investigated earlier. There was no duty to act as a police force, and reliance on signed statements of truth was not unreasonable. The reasonable-diligence issue was therefore not to be divided into separate enquiries for each case.
3. The evidence would probably have influenced the results. If the Autofocus material were rejected as tainted, the defendants might fail to prove that the basic hire rate was lower than the credit-hire rate. In the absence of other evidence, the claimants might then recover the actual credit-hire rate.
4. Time and permission. Applying the relevant checklist in CPR 3.9, the administration of justice, the nature of the allegations, the absence of intentional default, and the need to test the evidence justified extensions of time. The applications were not defeated by the interests of finality.
5. The court extended time, permitted the evidence of Mr Lee and Mr Evans to be adduced, and granted permission to appeal. The appeals were to proceed by way of review. The shape of the appeals and treatment of the evidence were left for a further directions hearing. Costs were costs in the appeal.
6. The court stressed that county court judges considering similar applications must conduct the exercise properly in each individual case. The Court of Appeal’s decision was not a basis for granting permission automatically.

• Court of Appeal (Civil Division): Time was extended, fresh evidence was admitted, and permission to appeal was granted in four applications arising from county court decisions. The substantive appeals were reserved for further directions.
• Ilford County Court: District Judge Mallard decided Purushothaman v Malik on 2 July 2009.
• Luton County Court: His Honour Judge Kay QC decided Seatory v Oliver on 11 March 2009.
• Lancaster County Court: His Honour Judge Appleton decided Sharples v Brown on 25 August 2008.
• Horsham County Court: District Judge Taylor decided Thomson v Lansdowne on 1 July 2009.