J W Grant & Co v Troy Foods Ltd

A document may be admissible even though its reliability and weight remain disputed. Those matters are for the trial judge to assess in the context of all the evidence, particularly where authenticity was not challenged and no hearsay objection was pursued. Under section 2(2) of the Torts (Interference with Goods) Act 1977, a bailee's failure to return goods can found conversion. The central issue is whether the goods were returned in accordance with the duty of bailment. An application to adduce fresh evidence on appeal should be assessed by the three Ladd v Marshall criteria, together with the overriding objective. Evidence held by the applicant before and during trial will ordinarily fail the reasonable-diligence criterion.

Grants supplied Troy with reusable containers for use in Troy's food-processing business. After the arrangement ended, Grants claimed that most of the containers had not been returned and pursued a claim substantially framed in conversion.

Following a three-day trial, HHJ Rogers found that Troy had failed to return the containers and ordered payment of £67,260 including interest. Troy appealed on the reliability of the principal documentary evidence, the application of conversion law, and the judge's factual findings. It also sought to adduce a further version of the document on appeal. The central issues were whether the trial judge had erred and whether the fresh evidence should be admitted.

The application to adduce fresh evidence was refused and the appeal was dismissed unanimously. Davis LJ gave the judgment, with the Chancellor of the High Court and Longmore LJ agreeing.

1. The master control sheet was admissible as a document. Troy had not served notice challenging its authenticity under CPR Part 32.19, and its counsel had taken no hearsay point at trial. Any dispute about accuracy or reliability went to weight, not admissibility.
2. Although the trial judge did not expressly cite section 4 of the Civil Evidence Act 1995, his direction to himself showed appropriate caution about hearsay, absent witnesses and the circumstances in which the document had been prepared. The evaluation of reliability was a matter for him in the light of the whole evidential picture.
3. The claim was properly characterised as conversion by a bailee under section 2(2) of the Torts (Interference with Goods) Act 1977. The decisive question was whether Troy had returned the containers. No issue was raised that any loss was outside Troy's control or without its fault. The judge's finding of primary liability was therefore sustainable.
4. The challenge to the reliability findings raised factual points which had been deployed before the trial judge and were matters for his assessment. The appellate court had no proper basis to interfere with those findings.
5. For fresh evidence, the court applied the three criteria in Ladd v Marshall [1952] 1 WLR 1489, while also considering the overriding objective under CPR Part 52.11. Troy failed the reasonable-diligence criterion because Version 3 had been in its possession before and during the trial, and Troy had considered it. No relaxation was justified. The court did not need to decide conclusively whether the evidence would probably have had an important influence on the result, but indicated that Troy might also face difficulty on that criterion.

Application to adduce fresh evidence refused; appeal dismissed.

• Court of Appeal (Civil Division): By [2012] EWCA Civ 1702, the application to adduce fresh evidence was refused and the appeal was dismissed.
• Lincoln County Court: On 5 January 2012, HHJ Rogers ordered Troy to pay £67,260 including interest after finding that it had failed to return the containers.