Ogutogullari & Ors v Zaman & Anor

An appellate court should admit fresh evidence only with permission and where admission is just under the overriding objective. The applicant should generally show a very good reason for not producing it at trial. The court must consider whether the evidence could have been obtained earlier, whether it appears credible, whether it would probably affect the result, and the importance of finality in litigation. Where the evidence is unlikely materially to alter the outcome, the court may refuse a retrial without resolving every other criterion. The threshold is demanding where the application seeks to reopen a carefully reasoned factual decision.

The appellants purchased a supermarket business from the respondents and alleged that they had been induced to do so by misrepresentations about turnover. The recorder dismissed the claim, finding that the alleged turnover representation had not been made. Permission to appeal on challenges to the factual findings was not renewed. The live appeal concerned proposed fresh evidence from former employees said to show that the respondents had manipulated till records to inflate apparent sales. The appellants sought a retrial, while the respondents made applications concerning cross-examination and further evidence. The central issue was whether the fresh evidence satisfied the stringent requirements for admission on appeal and justified reopening the factual decision.

1. The appeal was dismissed. Lloyd Jones LJ gave the leading judgment. Sir Stephen Sedley and McFarlane LJ agreed.
2. Under CPR 52.11(2), permission was required before evidence not before the lower court could be adduced. The governing approach, explained in Transview Properties v City Site Properties Limited [2009] EWCA Civ 1255, required the court to ask whether admission was just under the overriding objective. Relevant matters included whether there was a very good reason for the evidence not having been obtained at trial, whether reasonable efforts could have obtained it, its apparent credibility, its likely influence on the outcome, and the interests of finality. The pre-CPR authorities, including Ladd v Marshall [1954] 1 WLR 1489, remained highly persuasive.
3. The court also recognised the general appellate restraint applicable to credibility assessments and primary findings of fact based on oral evidence. Such findings should ordinarily be left undisturbed unless the trial judge failed to take proper advantage of seeing the witnesses and the findings were plainly wrong.
4. Considered as a whole, the proposed evidence would probably not have an important influence on the result. The alleged misrepresentation was so substantial that a prudent purchaser would be expected to check the accounts and value added tax returns, which the recorder found accurately stated turnover and had been disclosed. The alleged till manipulation would have created tax liabilities, required knowledge of the appellants’ visits, and involved substantial additions. The appellants’ accounts were inconsistent on fundamental matters. Their subsequent Costcutter application stated weekly sales of £15,000, and the continuing 21-year lease made the alleged conduct improbable. The proposed evidence also raised hearsay and credibility difficulties.
5. Because a retrial was highly unlikely to produce a different conclusion, it was unnecessary to decide whether the evidence could have been obtained by reasonable efforts or to determine the further applications. The parties had received a fair and full hearing. Sedley added that the cost and complexity of a retrial reinforced the need for a clear case before one was ordered.

1. Court of Appeal (Civil Division) — On 15 October 2013, dismissed the appeal, refusing to reopen the factual decision on the basis of the proposed fresh evidence: [2013] EWCA Civ 1445.
2. Central London Civil Justice Centre — Recorder Vivian Chapman QC dismissed the appellants’ misrepresentation claim.