Singh & Ors v Habib & Anor

Under the Civil Procedure Rules, rule 52.11(2) gives an appeal court a wide discretion to admit evidence not before the lower court. The three Ladd v Marshall considerations, reported at [1954] 1 WLR 1489, remain important but are not a rigid straitjacket. In suspected fraudulent road-traffic claims, the public interest in a full investigation is relevant. Where the original decision was finely balanced, modest credible evidence capable of affecting the result may justify admission and a retrial.

Three passengers claimed damages for personal injuries allegedly suffered in a road accident. The district judge found for the claimants. The insurer later obtained evidence suggesting that the accident might have been fabricated, including a statement from the driver, evidence concerning the claims company involved, and inconsistencies in the claimants’ accounts.

HHJ Grenfell refused the insurer’s application to adduce fresh evidence on appeal and dismissed the appeal from the district judge’s decision. The insurer appealed to the Court of Appeal. The central issue was whether the fresh evidence should be admitted under rule 52.11(2) and whether the case should be reheard.

Appeal allowed. Sir Anthony May gave the leading judgment, and Lord Justice Sullivan and Lord Justice Gross agreed.

1. Rule 52.11(2) of the Civil Procedure Rules gives an appeal court a broad discretion to receive evidence that was not before the lower court. The principles in Ladd v Marshall [1954] 1 WLR 1489 remain important considerations. They do not impose a rigid straitjacket on the discretion. The approach must reflect the overriding objective and the particular circumstances of the case.
2. The relevant considerations remained whether the evidence could have been obtained with reasonable diligence, whether it would probably have an important influence on the result, and whether it was apparently credible. The public interest in preventing and investigating fraudulent road-traffic claims was also a significant consideration.
3. The enquiry agent’s evidence was unavailable at trial and was credible so far as it went. Although the telephone-number evidence might theoretically have been discovered online, expecting solicitors conducting a modest claim to search for it before trial would have imposed an unrealistic standard of diligence. The further statements from two claimants were volunteered on appeal and could be available for cross-examination at any rehearing, although it was unnecessary to admit them at that stage.
4. The fresh evidence had an important potential influence on the outcome. It bore on the driver’s failure to report the alleged accident, the later genuine accident, the unsatisfactory evidence of two claimants, contradictions concerning contact with the claims company, the delay in obtaining medical attention, the driver’s statement that the accident had not occurred, and the shared telephone number.
5. The original judgment was finely balanced. Modest additional evidence capable of showing that the result might have been wrong was therefore admissible and persuasive. The matter was directed to be reheard before a circuit judge other than HHJ Grenfell.

1. Court of Appeal (Civil Division) — In [2011] EWCA Civ 599, allowed the appeal, admitted the fresh evidence and directed a rehearing before a different circuit judge.
2. Leeds County Court — HHJ Grenfell — Refused the application to admit fresh evidence on appeal and dismissed the appeal from the district judge’s decision.
3. Leeds County Court — DJ Barraclough — Found in favour of the claimants and awarded damages.