Balevents Ltd v Sartori

Fresh evidence may be admitted on appeal, in the court’s discretion, where it could not with reasonable diligence have been obtained for trial, would probably have an important influence on the result, and is apparently credible. The discretion may be exercised selectively. Evidence concerning the same issue may be refused where it was available at trial or was not then used. Where admitted evidence may materially affect findings of fact, the appeal may be allowed and the case remitted for re-trial.

Balevents appealed from Kitchin J’s dismissal of its claim concerning title to land and rectification of the registered title. The appeal was heard with issues arising on a cross-appeal. During the hearing, Balevents made two applications for permission to adduce fresh evidence. The Court of Appeal admitted the evidence covered by the first application and parts of the second, concluding that the new material could affect the trial judge’s factual findings. The central issues were whether the evidence satisfied the requirements in Ladd v Marshall and what procedural order should follow.

Rimer LJ gave the reasons of the court, with which Tomlinson and Longmore LJJ agreed. The court allowed the appeal, set aside Kitchin J’s order and remitted the case for a re-trial. It indicated that no issues were restricted on the re-trial, and that the factual matters summarised in the judgment were not binding findings.

1. Applicable test. The court applied the three conditions identified in Ladd v Marshall [1954] 1 WLR 1489: the evidence must not have been obtainable with reasonable diligence for use at trial; it must probably have an important influence on the result; and it must be apparently credible. The decision remains discretionary.
2. First application. The newly discovered Broomco accounting records could not fairly be said to have been obtainable with reasonable diligence before trial. They were potentially important because they suggested that Broomco, rather than Mr Sartori as lender, received the relevant rent, and they also affected the characterisation of later payments. The documents appeared credible. All three conditions were therefore satisfied and the evidence was admitted.
3. Second application. The court admitted photographs and letters concerning the land, together with specified photographic and newspaper material, because the evidence could not reasonably have been obtained earlier, was potentially influential and was credible. It refused other material, including cheque stubs, bank statements, rent receipts and most of Mr Timms’s witness statement. The receipts had been available at trial and Balevents had chosen not to use them, so the related evidence was not admitted in the exercise of the court’s discretion.

• Court of Appeal (Civil Division): Allowed the appeal, admitted specified fresh evidence and remitted the case for a re-trial: [2012] EWCA Civ 1508.
• High Court, Chancery Division: Kitchin J dismissed Balevents’ claim for a declaration concerning title to the land and alteration or rectification of the registered title: [2011] EWHC 2437 (Ch).