Thomas Newall Ltd v Lancaster City Council

On an application to admit fresh evidence on appeal, the court must consider whether it could have been obtained with reasonable diligence, whether it would probably influence the outcome, and whether it is inherently credible. Evidence known before the hearing or appeal should be raised promptly; a party cannot take its chance and later seek a rehearing. Allegations of fraud do not, without a credible evidential basis or exceptional circumstances, displace those requirements. A preliminary expert valuation may be revised after fuller investigation and does not, without more, demonstrate dishonesty. The wasted-costs jurisdiction is exceptional and cannot be used as a collateral attack on substantive findings.

Thomas Newall Limited pursued compensation for the compulsory acquisition of a redundant mill. Following the Upper Tribunal’s valuation and costs decisions, the Claimant sought permission to challenge the preliminary issues and final decisions, relying on Freedom of Information documents, earlier valuations and entries in the Council’s solicitors’ bill of costs. It alleged dishonesty, collusion and fraud, and sought a rehearing and a wasted costs order against the solicitors.

The Upper Tribunal refused review and permission applications and refused the wasted-costs application. The Court of Appeal considered whether the proposed fresh evidence met the Ladd v Marshall requirements, whether alleged fraud justified admitting it despite those requirements, and whether there was any real prospect of error in the Tribunal’s exercise of its wasted-costs discretion.

Disposition

Briggs LJ refused all three applications for permission to appeal. The Claimant was ordered to pay £5,000 towards the Council’s costs of the applications.

1. Fresh evidence. The Ladd v Marshall test required consideration of whether the evidence could have been obtained with reasonable diligence, whether it would probably have an important influence on the outcome, and whether it was inherently credible. The conditions were cumulative.
2. Valuation material. The 2004 preliminary valuation could have been obtained before the valuation hearing by seeking disclosure. The Claimant also knew of it before the earlier appeal but did not raise it by cross-appeal or application to admit further evidence. The later valuation evidence did not satisfy the materiality or credibility requirements. A preliminary valuation based on initial thoughts and incomplete information could be revised after fuller investigation. The detailed workings supporting the later valuation had been available to the Tribunal, which adopted much of them.
3. Other evidence and fraud allegations. The documents concerning floor areas were known before the valuation hearing. The Freedom of Information material concerning the valuation added nothing material. The funding documents could have been sought by disclosure, and the Council had no general obligation to disclose them without an order. Even if the funders’ letters had been carefully prepared, the material did not show that the letters failed to represent their true views. There was no real prospect of proving fraud or a fraudulent conspiracy. The expert’s lack of candour concerning the £650,000 report had been remedied by disclosure of his full workings at the hearing.
4. Wasted costs. The application against the solicitors was a collateral attempt to reopen the Tribunal’s substantive conclusions. It disclosed no real prospect of establishing improper, unreasonable or negligent conduct causing the costs, or of fault in the Tribunal’s exercise of its exceptional wasted-costs discretion.

• Court of Appeal (Civil Division): On 27 January 2016, Briggs LJ refused the renewed applications for permission to appeal concerning the preliminary issues, valuation and costs decisions, and wasted-costs application. A costs order of £5,000 was made.
• Upper Tribunal (Lands Chamber): The underlying proceedings included decisions identified as [2010] UKUT 2 (LC), [2011] UKUT 437 (LC) and [2015] UKUT 0239 (LC). The Tribunal refused review and permission applications and refused the wasted-costs application.