Taylor & Anor v Over & Anor

On an appeal raising a point of law, fresh evidence is not admissible merely because it supports or confirms findings of fact which the appellant does not challenge. The default under Civil Procedure Rules 1998 Part 52.11(2)(b) is that an appeal court will not receive evidence absent from the lower court unless it orders otherwise. The established principles in Ladd v Marshall provide the framework. Where proposed evidence cannot affect the legal issue, there is no proper basis for admitting it.

The respondent sought to introduce extensive new materials in answer to the appellants’ appeal. The materials were said to support the lower judge’s findings on the indemnity issue and to confirm that rent payable under the lease was the responsibility of OTB. The appeal arose from Bristol District Registry before His Honour Judge McCahill QC. The grounds of appeal did not challenge the judge’s findings of fact. The central issue was whether fresh evidence could be admitted where the appeal appeared to turn on a point of law and the proposed evidence merely supported unchallenged factual findings.

1. Governing framework. The respondent’s application to admit new evidence had not been formally made. Counsel undertook to issue the application and pay the fee as a prerequisite to its consideration. Under Part 52.11(2)(b) of the Civil Procedure Rules 1998, the appeal court will not receive evidence that was not before the lower court unless it orders otherwise. The principles governing admission of new evidence on appeal are found in Ladd v Marshall [1954] 1 WLR 1880.
2. Application of the principles. The appeal concerned a point of law. The grounds did not challenge the lower court’s factual findings. The proposed materials were intended to support those findings and the related conclusion on responsibility for the rent. Evidence which merely confirms unchallenged findings cannot provide a proper basis for admission in answer to an appeal that turns on law.
3. Disposition. Lord Justice Vos would dismiss the application. Lord Justice Maurice Kay and Lord Justice Sullivan agreed. The application to admit new evidence was therefore dismissed unanimously.

1. Court of Appeal (Civil Division): The respondent’s application to admit new evidence in answer to the appeal was dismissed on 5 June 2014.
2. Bristol District Registry: The appeal was from a decision of His Honour Judge McCahill QC. No citation or substantive disposition of the lower-court decision is stated.