Clutterbuck & Anor v Al Amoudi

The admission of further evidence on appeal requires evidence which, if credible, would probably influence the result and which could not reasonably have been obtained for use at trial. The diligence requirement may be less stringent where fraud first emerges during the trial and deceives the court. That qualification does not assist where the alleged fraud was already in issue for years and the proposed evidence merely improves material available before trial. Evidence directed to matters which the trial judge expressly found unnecessary to the decision will fail the materiality requirement. A renewed application for permission to appeal will also fail where the appeal has no real prospect of success or other compelling reason to be heard.

The applicants claimed that property and money had been transferred pursuant to joint ventures with the respondent, and that the respondent had represented that she could obtain a substantial Sharia loan. After a 19-day trial, Asplin J dismissed the claim and the respondent’s counterclaim. Briggs LJ refused permission to appeal on the papers, relying on the trial judge’s assessment of extensive evidence and credibility.

On the renewed application, the applicants sought to adduce expert and witness evidence and to amend the grounds of appeal to allege that the judgment had been procured by fraud concerning the respondent’s identity, wealth and witnesses. The central questions were whether the new evidence satisfied the requirements for admission and whether the proposed allegations could have affected the judgment.

1. Fresh evidence. The court applied the conditions reflected in Ladd v Marshall [1954] 1 WLR 1589: the evidence must, if credible, probably have an important influence on the result, and it must not reasonably have been obtainable for use at trial.
2. Materiality. The proposed evidence concerning the respondent’s identity, origins, wealth and lifestyle was not likely to affect the result. The trial judge had expressly found that the transactions were not entered into in reliance on those representations, treated them as background matters, and decided the joint venture claim on independent factual and documentary evidence. The evidence concerning the source of the respondent’s funds was also marginal to whether she had access to substantial money.
3. Due diligence and alleged fraud. The requirement of reasonable diligence may be less stringent where fraud first arises during the trial and the court is genuinely deceived. Skone v Skone & Anr [1971] 1 WLR 812, Linton v Ministry of Defence [1983] 133 NLJ 1103 and Hamilton v Brodie Brittain Racing Ltd [1996] CLY 654 were distinguishable because the fraud issue in those cases arose for the first time during the trial. Here, the allegations about the respondent’s identity and wealth had been in issue for several years. The proposed evidence could reasonably have been obtained earlier and was largely an attempt to improve the evidence available at trial.
4. Disposition. The court would not permit the further evidence to be adduced or the grounds of appeal to be amended. It adopted the persuasive reasons given by Briggs LJ and refused all the applications, including renewed permission to appeal. The procedure considered in Owens v Noble [2010] EWCA Civ 284 did not alter that conclusion.

1. Court of Appeal (Civil Division): The renewed applications to adduce further evidence, amend the grounds of appeal and obtain permission to appeal were refused. [2015] EWCA Civ 1593
2. High Court, Chancery Division (Asplin J): After a 19-day trial, the applicants’ claim was dismissed and the respondent’s counterclaim was also dismissed. No citation for that judgment is stated.
3. Briggs LJ: Permission to appeal was refused on the papers. No citation is stated.