Wiemer v Redstone Mortgages

On a second appeal, the admission of fresh evidence requires a more stringent approach than on a first appeal. Finality, and the applicant’s two earlier opportunities to produce the evidence, are important. Evidence should be refused where it could have been obtained with reasonable diligence before either earlier hearing, or where it is not sufficiently strong to justify admission. Evidence raising a factual issue about whether a document was sent or received, especially after related evidence was rejected on case-management grounds at the first appeal, does not provide the compelling reason needed for a second appeal.

The respondent obtained summary judgment on a mortgage claim after relying on a demand sent to the address stated in the mortgage. The applicant had pleaded non-receipt but did not provide evidence that he had notified a different contact address. Master Teverson gave summary judgment. Roth J granted permission to appeal out of time, and David Richards J permitted an amendment but refused late evidence about a supposed change of address and dismissed the appeal. On the proposed second appeal, the applicant relied on further documents, including a purported letter dated 20 December 2006. The central issues were whether that evidence should be admitted and whether there was an important point of principle or practice or another compelling reason to hear a second appeal.

Disposition. The Court of Appeal refused to admit the further evidence and refused permission to bring a second appeal.

1. Second-appeal threshold. Under Part 52.13 of the Civil Procedure Rules 1998, a second appeal requires either an important point of principle or practice or some other compelling reason for the court to hear it.
2. Fresh evidence. The court applied the principle in Aylwen v Taylor Joynson Garrett [2001] EWCA Civ 1171, [2002] PNLR 1, that the principles governing fresh evidence apply equally to appeals against summary judgment. It considered the principles in Ladd v Marshall [1954] 1 WLR 1489 and the guidance in Uddin (A Child) [2005] EWCA Civ 52, [2005] 3 All ER 550. Uddin concerned reopening an appeal under Part 52.17 and was not precisely in point, but illustrated the greater weight given to finality on a second appeal.
3. More stringent approach. A second appeal calls for a stricter approach than a first appeal because the applicant has already had two opportunities to adduce the evidence. This approach is consistent with the second-appeal threshold in Part 52.13.
4. Application. The applicant had not shown reasonable diligence. The November 2006 letter was available before the original hearing and did not notify a new address. The supposed December 2006 letter was not found and produced until much later, despite the issue having been squarely raised. In any event, the further evidence raised factual questions about whether the letter had been sent or received and was not sufficiently strong to justify admission. The first appeal judge had also rejected related evidence on solid case-management grounds.
5. Floyd LJ agreed with Lewison LJ that the evidence should not be admitted and that permission to appeal should be refused.

1. Court of Appeal (Civil Division): Refused admission of further evidence on the proposed second appeal and refused permission to appeal.
2. High Court, Chancery Division: David Richards J allowed amendment of the grounds but refused late evidence concerning a change of contact address and dismissed the appeal from the summary judgment.
3. High Court, Chancery Division: Master Teverson entered summary judgment for Redstone Mortgages. Roth J subsequently granted permission to appeal out of time.