Hussain, R (on the application of) v King Edward VII Hospital

On an application to adduce fresh evidence on appeal, the court applies Civil Procedure Rules 1998, rule 52.11 and the criteria in Ladd v Marshall [1954] 1 WLR 1489. The evidence must not have been obtainable before trial with reasonable diligence, must probably affect the result, and must be apparently credible. Failure on diligence or credibility is sufficient. Credibility may be assessed by reference to contemporaneous records, unexplained provenance, inconsistencies and the absence of a witness able or willing to give oral evidence.

The claimant appealed against Mr Justice Eady’s judgment of 30 November 2012, which found for the hospital in a negligence claim concerning a shoulder injury allegedly sustained during surgery under general anaesthetic. The claimant sought to rely on a fax cover sheet and a statement from a doctor, both discovered after trial. Permission to appeal was granted on the basis that the evidence might be admissible. The central issue was whether the proposed evidence satisfied the requirements governing fresh evidence on appeal.

1. Disposition. The application to adduce the proposed fresh evidence was refused and the appeal was dismissed. Lord Justice Lewison and Lord Justice Kitchin agreed with Lord Justice Longmore.
2. Under Civil Procedure Rules 1998, rule 52.11, evidence not before the lower court is not received on appeal unless the court orders otherwise. The criteria in Ladd v Marshall [1954] 1 WLR 1489 remained relevant: the evidence must not have been obtainable before trial by reasonable diligence; it must probably have an important influence on the result; and it must be apparently credible, although it need not be incontrovertible.
3. The reasonable-diligence requirement was not met. The significance of possible bruising was apparent from the medical records and the claimant’s evidence. Relevant documents held by his employer and its medical office should have been sought substantially earlier. The referring doctor could also have been contacted before trial.
4. The credibility requirement was not met. The fax was vague, its provenance was unexplained, its signatory had not been contacted, and there was no adequate explanation for its transmission. The doctor’s later recollection was unsupported by a contemporaneous note, inconsistent with other evidence and the fax, and came from a witness unwilling to attend court to give oral evidence.
5. The court did not need to determine whether the evidence would probably have influenced the result. The failure to satisfy the first and third criteria was sufficient to exclude it.

1. Court of Appeal (Civil Division) Permission to appeal was granted by Rimer LJ on 23 May 2013. The appeal was dismissed and the application to adduce fresh evidence was refused.
2. High Court Mr Justice Eady handed down judgment on 30 November 2012 and found for the hospital in the negligence claim.