Jogo Associates Ltd & Ors v Internacionale Retail Ltd

On an appeal from summary judgment, fresh evidence should generally be admitted only if it could not reasonably have been obtained earlier, could probably influence the result, and is apparently credible. The latter two conditions may be considered together where credibility is decisive. If admissible evidence gives the defendant a prospect of defending the claim that is more than fanciful, summary judgment should be set aside, even where the prospect is shadowy. The court may make relief conditional on payment into court of a substantial sum.

Jogo claimed that clothing supplied to Jet Star Retail Limited was subject to retention of title terms and sued Internacionale, which had bought Jet Star’s business and stock from its administrators. HHJ Langan QC, sitting in the Chancery Court at Leeds, granted summary judgment for Jogo on 24 March 2010. Internacionale appealed and sought to adduce fresh evidence, including evidence from a former participant in Jet Star’s business and from an administrator concerning the date on which retention of title letters were signed. The central issues were whether the fresh evidence satisfied the applicable admissibility test and whether it gave Internacionale a sufficient prospect of defending the claim.

1. Disposition. Lord Justice Thomas gave the judgment, with Lord Justice Rimer and Lord Justice Lloyd agreeing. The appeal was allowed. The evidence of Mr Brafman was excluded, but the evidence of Mr Bennett concerning Ms Deacock was admitted.
2. Applicable test. The court adopted the approach stated in Aylwen v Taylor Johnson Garrett [2001] EWCA Civ 1171, referring also to Ladd v Marshall and Langdale v Danby [1982] 1 WLR 1134. Fresh evidence on an appeal from summary judgment should ordinarily be admitted only where it could not have been obtained with reasonable diligence, would probably have an important influence on the result, and is apparently credible. Where credibility is the essential issue, the second and third conditions may be considered together.
3. Evidence of Mr Brafman. Although the court assumed that reasonable diligence might have been satisfied, his later evidence was irreconcilable with statements made in 2009. It was not credible and would not have influenced the original decision.
4. Evidence of Mr Bennett. Internacionale had reasonably relied on the administrators to provide evidence, so there was no want of due diligence. The interview conducted under s.236 of the Insolvency Act 1986 did not itself materially undermine Ms Deacock’s earlier account. Mr Bennett’s later evidence nevertheless had a bearing on the date of signing and was sufficiently relevant and credible to satisfy the fresh-evidence threshold, despite serious concerns about the circumstances in which it emerged.
5. Effect on summary judgment. The new evidence gave Internacionale a prospect of defending the claim that was more than fanciful, although shadowy. Summary judgment therefore could not stand. The appeal was allowed on condition that £600,000, including an element for interest, was paid into court. The court invited submissions on the timing of payment and consequential directions.

• Court of Appeal (Civil Division) — [2011] EWCA Civ 384: appeal allowed; fresh evidence admitted in part and summary judgment displaced subject to a payment-into-court condition.
• Chancery Court at Leeds — HHJ Langan QC, 24 March 2010: summary judgment granted for Jogo, with damages to be assessed.