Rawding v Seaga UK Ltd

Fresh expert evidence may be admitted on appeal where it could not, with reasonable diligence, have been available at trial, appears credible and could have an important or decisive influence on the result. The required standard is reasonable diligence, not a higher standard.

Where such evidence bears directly on the sole issue decided at trial, the Court of Appeal may set aside the judgment and remit that issue for redetermination. Changed circumstances may also justify replacing an earlier single-joint-expert regime with permission for each party to adduce expert evidence.

Seaga UK Ltd obtained judgment in the Chester County Court against Jason Rawding under an alleged personal guarantee of a company’s debts. The guarantee depended on four disputed emails. The judge found the emails probably genuine and entered judgment against Mr Rawding for £233,158, jointly and severally with the company.

Mr Rawding appealed and sought to introduce two reports from a data-recovery expert. Data recovered from old backup tapes indicated that the disputed emails had not been sent or received, subject to the possibility of a technically sophisticated deletion during a narrow period. The central questions were whether that evidence could have been obtained with reasonable diligence, whether it was sufficiently cogent to be admitted and what order should follow.

1. Appeal allowed unanimously. The expert reports were admitted as fresh evidence. The judgment against the appellant was set aside, and the authenticity of the disputed emails was remitted to the trial judge for determination.

2. The fresh evidence could not, with reasonable diligence, have been made available at trial. The former IT personnel and the single joint expert had shared the view that the old, repeatedly overwritten backup tapes could not yield useful information. Only a specialist with sufficient knowledge and experience appreciated that relevant data might be recoverable. The governing standard was reasonable diligence, not a higher standard.

3. The evidence appeared inherently credible and was capable of having an important and possibly decisive influence on the sole issue at trial. Taken at face value, it made it at least implausible that the disputed emails had been sent or received. Its cogency was not defeated merely because it left open a technically complex means by which the emails might have been deleted without detection.

4. It was preferable to admit the evidence on the appeal rather than require a fresh action alleging fraud. The appellant had attempted to introduce materially similar evidence before judgment was handed down, and the new evidence addressed the very issue which the trial judge had decided. The court therefore exercised its power under rule 52.10(2)(b) of the Civil Procedure Rules 1998 to refer that issue to the lower court.

5. The changed circumstances made it inappropriate to preserve the direction that technical evidence could be given only by a single joint expert. The appellant could rely on the new reports, and the respondent could adduce its own data-recovery expert evidence. Further evidence and the recall of witnesses were matters for the trial judge’s directions.

1. Court of Appeal (Civil Division): In [2015] EWCA Civ 113, unanimously admitted the fresh expert evidence, allowed the appeal, set aside the judgment against the appellant and remitted the authenticity of the emails for determination.
2. Chester County Court: His Honour Judge Halbert found that the appellant had given a personal guarantee through disputed emails and entered judgment for £233,158 against him and the debtor company jointly and severally. The judge subsequently refused to reopen the matter to receive further expert evidence.