Tanner v Miller

The admission of fresh evidence on appeal is governed by the established Ladd v Marshall practice. The reasonable-diligence requirement is objective: the question is whether a litigant could reasonably have produced the material at trial. There is no different test for a litigant in person, although the court must remain alert to inappropriate prejudice caused by lack of representation. The acts and omissions of lawyers advising a party remain relevant. The overriding objective informs the exercise of the power but does not replace the Ladd factors. The Court of Appeal cannot grant permission for an appeal from a County Court decision where the proper route is to the High Court.

Mr Tanner renewed an application for permission to appeal against Sales J’s refusal, by order dated 23 January 2013, to admit fresh evidence in proposed proceedings arising from a decision of District Judge Pelly in the Cambridge County Court. Mr Tanner accepted that the proper appeal route from the County Court was to the High Court. He nevertheless argued that fresh evidence should be admitted because he had acted in person at trial with a McKenzie Friend, and because lawyers previously advising him had failed to adduce the evidence.

The central issue was whether permission should be granted to challenge the exclusion of the fresh evidence. Further applications concerning expert evidence and access to drawings were also made.

Application refused. The further applications for leave to introduce additional fresh evidence and for access to drawings were not properly made in the Court of Appeal and were dismissed.

1. The proper route for an appeal from the Cambridge County Court decision was to the High Court. The Court of Appeal could not itself grant permission to appeal from that decision. At most, it could identify a procedural error requiring reconsideration by the High Court.
2. The established practice for admitting fresh evidence on appeal remained governed by the factors identified in Ladd v Marshall. The first factor required an objective assessment of whether the evidence could have been adduced at trial with reasonable diligence. The general interests of justice did not provide a separate substitute test.
3. No different test applied merely because a party was litigating in person. Such a litigant had to comply with procedural rules in the same way as a represented party, although the court had to remain vigilant against inappropriate prejudice caused by lack of representation. Oraki v Dean and Dean [2012] EWHC 2885 could not alter established Court of Appeal jurisprudence. Mahon v Air New Zealand Ltd [1984] AC 808 was not a case under the Civil Procedure Rules and could not vary this practice.
4. The reasonable-diligence inquiry included what lawyers advising or representing the party could reasonably have done. Balevents Ltd v Allan James Sartori [2012] EWCA Civ 1508 applied an objective approach and did not support separating the acts of lawyers from the responsibility of the litigant. The reference to the overriding objective in Campbell v Daejan Properties Limited [2012] EWCA Civ 1503 did not establish any conflict with the Ladd v Marshall factors.
5. Sales J had been entitled to conclude that it was not substantiated that the evidence could not have been produced before the hearing. The evidence was available to be found, and the judge was entitled to infer that relevant documentation would have prompted further inquiry before trial.
6. The court also identified the public interest in the finality of litigation as a consideration underlying the established practice.

• Court of Appeal (Civil Division): In [2013] EWCA Civ 1463, Arden LJ refused the renewed application for permission to appeal and dismissed the further fresh-evidence applications.
• High Court of Justice, Chancery Division: Sales J, by order dated 23 January 2013, refused to admit fresh evidence in the proposed appeal.
• Cambridge County Court: District Judge Pelly gave the underlying decision. Further citation details were not stated in the judgment.