Dickinson & Ors v Tesco Plc & Ors

Where a lower court quantified replacement-car hire by relying on evidence from a source later shown to be systemically dishonest, the Court of Appeal may admit later evidence and allow an appeal even if it does not establish the precise sum that should have been awarded. The Ladd v Marshall criteria remain relevant to fresh evidence, alongside the overriding objective. A claimant need not prove the exact higher award on appeal; the issue may be remitted for retrial. Extension of time is assessed by considering the relevant factors overall. The defendant remains entitled to adduce evidence at the retrial.

Four appeals concerned damages for replacement vehicles hired on credit terms after road traffic accidents. The underlying decisions were made by District Judge Henson in the Reading County Court, His Honour Judge Mitchell and Deputy District Judge Hopkins in the Central London Civil Justice Centre, and Deputy District Judge Nicholls in the Uxbridge County Court. The claimants sought to challenge hire-rate awards based on reports prepared by Autofocus Limited after evidence emerged that its data and reports were systemically unreliable.

The applications concerned admission of fresh evidence, extensions of time, permission to appeal, and the proper remedy if the lower decisions were unsafe. The central issues were whether the fresh evidence satisfied the applicable criteria, whether the appeals should proceed despite delay, and whether the hire-rate decisions should be set aside and retried.

Lord Justice Aikens gave the judgment. Lord Justice Rimer and Lord Justice Moore-Bick agreed.

1. The Court treated an appeal, rather than a fresh action, as the appropriate route in these unusual cases. The alleged dishonesty was not seriously challenged, the appeals concerned only the quantum of hire charges, and the fresh evidence cast doubt on the reliability of the basis on which the awards had been made. The general approach in Noble v Owens [2010] 1 WLR 2491 was distinguished.
2. Under Part 52.11(2) of the Civil Procedure Rules 1998, the Court applied the Ladd v Marshall criteria. The evidence was apparently credible, could not reasonably have been obtained for the trials in its full form, and would probably have had an important influence on the results. The overriding objective supported admission of the evidence.
3. In Simmonds and Verley, time was extended and permission to appeal was granted. Fresh evidence was admitted in Simmonds, Verley and Moonsam. The decisions below in Dickinson, Verley and Moonsam were unsafe because they relied materially on unreliable evidence. The respondents accepted that the evidence of the relevant Autofocus witness could not be justified in Simmonds.
4. The Court rejected any general requirement that an appellant prove the precise increased award that would have been made. The defendant remained responsible for showing that the claimed hire rate was unreasonable. The appropriate remedy was to set aside the hire-rate decisions and order retrials limited to recoverable hire.
5. The respondents were not barred from adducing evidence at the retrials. The retrials were to be reallocated to the multi-track, with their detailed conduct left to the trial judge. No sums were to be repaid pending the retrial orders. All four appeals were allowed.

• Court of Appeal (Civil Division): In [2013] EWCA Civ 36, all four appeals were allowed. Fresh evidence was admitted in three cases; extensions of time and permission to appeal were granted where required; and retrials on quantum were ordered.
• County courts: The underlying hire-rate decisions were made in the Reading County Court, Central London Civil Justice Centre and Uxbridge County Court. The decisions awarded damages based substantially on Autofocus evidence and were challenged on the basis of later-discovered dishonesty and unreliability.