Bailey & Anor v Graham (aka "Levi Roots") & Ors

Fresh evidence on appeal is admitted at the Court of Appeal’s discretion. The considerations derived from Ladd v Marshall include whether the evidence was available with reasonable diligence, whether it could importantly influence the result and whether it is credible.

A party who requires measures to assist a vulnerable witness should apply before trial. Such measures cannot ordinarily be raised after an adverse judgment as a basis for setting it aside.

A fact-finder may begin with witness credibility where there is no reliable documentary or factual starting point. The judge must still assess all relevant evidence in the round. Subsequent conduct may assist in deciding whether a contract existed, but equivocal conduct requires caution.

The claimants alleged that they and the first defendant had orally agreed to exploit a jerk-sauce business in equal shares. The first claimant also alleged that the first defendant had misused a confidential sauce recipe. After a nine-day trial, HH Judge Pelling QC rejected the alleged agreement and confidential-information claim in [2011] EWHC 3098 (Ch).

The claimants appealed, principally challenging the judge’s methodology and assessment of witnesses. They also applied to introduce a post-trial psychologist’s report concerning the first claimant’s intellectual functioning and vulnerability when giving evidence. The issues were whether that report should be admitted and whether the factual conclusions on contract or breach of confidence could be disturbed.

1. The application to adduce fresh evidence was refused and the appeal was dismissed unanimously. The Chancellor gave the judgment, with which Longmore and Davis LJJ agreed.

2. Under Rule 52.11(2) of the Civil Procedure Rules 1998, evidence not before the trial judge may be admitted only with the Court of Appeal’s permission. The former rules in Ladd v Marshall remained relevant considerations. The psychological evidence could have been obtained before trial because the first claimant could have undergone assessment at any time. Responsibility for assessing the need for such evidence and any protective measures rested with the claimants and their advisers.

3. The report would not have had an important influence on the outcome. Although it identified low intellectual functioning, poor memory and difficulty processing questions, it did not establish that the first claimant’s testimony was reliable. It instead supported the trial judge’s conclusion that his uncorroborated evidence could not safely be accepted. The breach-of-confidence claim also failed independently because the alleged recipe lacked sufficient certainty.

4. Any application for measures to assist a vulnerable witness must ordinarily be made before trial. A party cannot await an adverse judgment and then contend that the judgment should be set aside because unrequested measures were not provided.

5. The trial judge’s credibility-led methodology was permissible because there was no reliable documentary or factual starting point. It did not involve wholesale rejection of the claimants’ witnesses. The judge assessed their evidence where it was admitted, corroborated or contrary to their interests, evaluated the independent witnesses and documents, and tested his provisional findings against the parties’ subsequent conduct. He therefore surveyed the relevant evidence as a whole.

6. The accepted evidence showed that the first defendant had been developing and marketing a sauce before the alleged disclosure and agreement. The trial judge was entitled to reject the alleged demonstration of the claimant’s recipe and to find that the subsequent conduct was inconsistent with the pleaded oral agreement. The appeal was an impermissible attempt to reargue factual issues.

7. The confidential-information claim disclosed no ground for appellate intervention. The inability to establish a confidential disclosure and the recipe’s insufficient certainty were each fatal to the claim. No new trial was justified.

1. Court of Appeal (Civil Division): The application to introduce the psychologist’s report was refused and the appeal from [2011] EWHC 3098 (Ch) was dismissed unanimously.

2. High Court, Chancery Division: HH Judge Pelling QC dismissed the claims for breach of contract and breach of confidence in [2011] EWHC 3098 (Ch).