Taiwo v Homelets of Bath Ltd

An appeal court may admit fresh evidence only where the applicable criteria are satisfied and admission accords with the overriding objective. The Ladd v Marshall criteria remain the relevant framework under CPR 52.21(2)(b): the evidence must not reasonably have been obtainable for the trial, must probably have an important influence on the result, and must be apparently credible. In dealing with a late application to adduce evidence, the court must assess the substance of the Denton considerations, even if it does not refer expressly to Denton. The judge’s assistance to a litigant in person does not amount to abandoning the judicial role where the litigant ultimately makes the application herself.

HomeLets of Bath Ltd appealed from an order of Recorder Christopher Sharp QC dated 12 April 2018, which gave judgment for Mrs Taiwo on claims for harassment and assault, with damages to be assessed. Permission was limited to whether evidence from Mr Odebode had properly been admitted and whether a letter dated 10 April 2012 should be admitted as fresh evidence.

The appeal therefore concerned the proper approach to fresh evidence, the admission of late evidence, and the extent to which a judge may assist a litigant in person without becoming an advocate or inquisitor.

1. Fresh evidence. CPR 52.21(2)(b), read with the overriding objective, required the court to apply the principles in Ladd v Marshall. The letter could reasonably have been obtained before trial because HBL had information pointing to its existence and waited until shortly before trial to request it. It would not probably have had an important influence on the result. Its inconsistencies were substantially matters of exaggeration and context, and it was broadly consistent with Mrs Taiwo’s trial evidence. Its authenticity was accepted, but that alone was insufficient. The application to admit it was refused.
2. Mr Odebode’s evidence. The trial judge had not called Mr Odebode as a witness of his own motion. Having assisted Mrs Taiwo, the judge withdrew his permission for Mr Odebode to act as a lay representative but permitted him to continue as a McKenzie Friend. Mrs Taiwo ultimately requested that his evidence be admitted. The court therefore did not need to decide whether the principle discussed in Jones v National Coal Board, referring to In re Enoch & Zaretsky, Bock & Co, remained unqualified under the CPR.
3. Although the trial judge did not expressly cite Denton v TH White Ltd, the substance of the Denton approach was applied. The failure to serve the witness statement by the directed deadline was significant, there was no good reason for the default, but admission was necessary to deal justly with the application in the circumstances. The appeal was dismissed.
4. HBL was ordered to pay Mrs Taiwo’s appeal costs, to be assessed if not agreed.

• High Court (Queen’s Bench Division): On appeal from the Bristol County Court order of Recorder Christopher Sharp QC dated 12 April 2018, the appeal was dismissed. HBL was ordered to pay Mrs Taiwo’s appeal costs.