Atkins v Co-Operative Group Ltd

When deciding whether to admit fresh evidence on appeal, the court must give effect to the overriding objective while considering the principles in Ladd v Marshall [1954] 1 WLR 1489. The evidence must ordinarily satisfy three requirements: it could not have been obtained with reasonable diligence for use at the original hearing; it would probably have an important influence on the result; and it is apparently credible. The court may also consider the practical consequences of admitting or excluding the evidence. Where subsequent expert analysis materially changes the medical evidence, it may be unjust to require the trial to proceed on an assumption contradicted by the updated evidence.

The Defendant appealed against an order of Master Gidden dated 25 March 2015. The order entered judgment for the Claimant, with damages to be assessed, and required an interim payment.

The claim concerned alleged asbestos-related diffuse pleural thickening and asbestosis. After judgment was entered, further radiological analysis and pulmonary function evidence led the Defendant’s medical expert to conclude that the Claimant had neither condition. The Defendant sought to rely on that evidence and to substitute judgment on breach of duty only, leaving causation and quantum to be assessed.

The central issue was whether the new evidence should be admitted and the judgment and interim-payment order varied.

1. The appeal was allowed. The order of Master Gidden was varied.
2. The court applied the principles in Ladd v Marshall [1954] 1 WLR 1489, together with the overriding objective. The relevant considerations were whether the evidence could have been obtained with reasonable diligence by the date of the original hearing, whether it would probably have an important influence on the result, and whether it was apparently credible.
3. The new evidence could not reasonably have been obtained by 25 March 2015. The later conclusion of the Defendant’s respiratory expert depended on both analysis of the recent CT scan by a specialist cardiothoracic radiologist and pulmonary function test results that had not then been available.
4. The evidence was materially important because the diagnosis affected causation, prognosis and life expectancy. It would also be inappropriate to require the expert to give evidence on the false assumption that the Claimant had asbestosis, or to proceed without the Claimant’s medical expert considering the evidence as a whole.
5. Judgment was therefore entered for the Claimant on breach of duty only, with causation and quantum to be assessed. The question whether the interim payment should be repaid in whole or in part was reserved for determination at the conclusion of the trial.

• High Court (Queen's Bench Division): The appeal against Master Gidden’s order was allowed. Judgment was substituted on breach of duty only, with causation and quantum to be assessed.
• Master Gidden: On 25 March 2015, judgment was entered for the Claimant with damages to be assessed, together with an interim payment order.
• Deputy Master Partridge: On 24 September 2015, the Defendant’s application to set aside the judgment was dismissed.
• High Court: On 20 November 2015, Singh J granted an extension of time and permission to appeal.