Dhillon & Anor v Sandhu

On an application to adduce fresh evidence on appeal, the court’s discretion under CPR 52.11(2)(b) must be exercised in accordance with the overriding objective. The principles in Ladd v Marshall remain powerful and relevant considerations, but they are not an inflexible code. The evidence must ordinarily have been unavailable below despite reasonable diligence, be capable of materially influencing the result, and be apparently credible. The court may consider deliberate and wilful failures by a party’s solicitors as part of the circumstances relevant to relief from sanctions, although ordinary solicitor carelessness is not generally sufficient. Fresh evidence was refused where it was available before the lower court, would not probably have affected the outcome, and presented an incomplete and doubtful account.

The defendants appealed against Master Marsh’s refusal to grant relief from a sanction debarring them from participating in partnership accounts. They applied, within a rolled-up permission and substantive appeal hearing, for permission to adduce more than 500 pages of correspondence and documents from their former solicitors’ file.

The defendants argued that the material supported their case that their solicitors had caused the non-compliance with an order requiring disclosure and inspection of partnership records. The claimant opposed the application, contending that the evidence had been available before the Master, would not have changed the result, and was incomplete and contradictory. The central issue was whether the fresh evidence should be admitted under CPR 52.11(2)(b).

1. The application to adduce fresh evidence was dismissed. The material had been available to the defendants before the hearings before Master Marsh. There was no sufficient explanation for failing to exhibit it to either of their witness statements. Admission would have given the defendants a second opportunity to present their case.

2. The court applied the three considerations in Ladd v Marshall: whether the evidence could have been obtained with reasonable diligence for use below; whether it would probably have had an important influence on the result; and whether it was apparently credible. Those considerations remain relevant under CPR 52.11(2)(b), but they are not primary rules that place the appellate court in a straitjacket. The governing discretion must be exercised consistently with the overriding objective.

3. The conduct of solicitors is not wholly irrelevant to an application for relief from sanctions. Although ordinary carelessness by a party’s solicitors does not generally justify relief, deliberate and wilful failure to follow a client’s instructions may be considered at the third stage as part of the overall circumstances. This was consistent with the approach in Mitchell v News Group Newspapers Limited as explained in Denton v TH White.

4. Even assuming the former solicitors’ conduct could have been explained more favourably, the correspondence showed that the replacement solicitors had also failed to engage properly and promptly with the obligation to provide inspection. The new material therefore would not probably have had an important influence on the result. It was also incomplete, omitted a crucial email, raised fresh doubts about the defendants’ evidence, and failed the credibility consideration in practical terms.

• High Court (Chancery Division) — On 23 July 2014, the court heard a rolled-up application for permission to appeal and the substantive appeal against Master Marsh’s order of 7 April 2014. The application to adduce fresh evidence was dismissed.