Singer & Anor v Muckley & Anor

Fresh evidence on appeal should ordinarily be unavailable at trial despite reasonable diligence, probably have materially influenced the result, and be apparently credible. These criteria remain important under the Civil Procedure Rules, although they are not mechanically determinative.

Where permission to appeal is sought out of time, the applicant must also obtain relief from sanctions. The court balances the possibility of a different result against the public interest in finality, considering delay, any good explanation, and the strength and materiality of the proposed evidence.

The appeal concerned a disputed transfer of garden land. His Honour Judge Behrens QC found that Andrew Muckley had signed the transfer on 6 February 2004 and gave judgment on 21 October 2009.

Mrs Muckley sought permission to appeal more than two years out of time. She relied on new witness evidence and documents said to undermine the finding that the transfer had been executed. The application therefore required an extension of time and relief from sanctions under Rule 3.9 of the Civil Procedure Rules.

1. Application refused. The extension of time was refused, so the appeal could not proceed. Lord Justice Moore-Bick agreed with Lord Justice Lewison.
2. The principles in Ladd v Marshall [1954] 1 WLR 1489 remain relevant under the Civil Procedure Rules. Fresh evidence should ordinarily have been unavailable at trial despite reasonable diligence, probably have had an important influence on the case and result, and be apparently credible. The criteria are not necessarily determinative, but are likely to be the most important considerations when balancing correctness against finality.
3. Failure to seek permission to appeal within time prevents the appeal being brought unless relief from sanctions is obtained under Rule 3.9 of the Civil Procedure Rules. Promptness and a good reason for delay were required. Evidence from available family members, and evidence known about at trial, could have been obtained with reasonable diligence. The subsequent delay was also unexplained.
4. Several items of evidence failed the materiality requirement. Some proved nothing; the advertisement was slender and did not establish who placed it. None of the evidence materially undermined Mrs Barnes’s accepted credibility or honesty.
5. The public interest in finality of litigation outweighed the possibility that the trial judge might have reached a different result had the evidence been available. The application was accordingly refused.

• Court of Appeal (Civil Division): Application for an extension of time and relief from sanctions refused. The appeal could not proceed.
• Leeds District Registry: His Honour Judge Behrens QC gave judgment on 21 October 2009, finding that Andrew Muckley had signed the transfer.