S v S

Applications to re-open perfected findings of fact on the basis of new evidence require a broad, fact-sensitive assessment of whether the evidence could affect the original findings. The court should consider the new material individually and cumulatively, in the context of the evidence already heard.

On appeal, the question is whether the decision not to re-open was wrong or unjust because of serious procedural or other irregularity. An appellate court should respect the advantage enjoyed by the judge who heard the evidence and lived with the case. Evidence that is merely capable of raising an alternative possibility, or that does not materially undermine the decisive evidence, will not ordinarily justify re-opening findings.

The husband appealed orders made by His Honour Judge O’Dwyer on 23 January 2017 in financial remedy proceedings. The original proceedings concerned responsibility for £340,000 withdrawn from the wife’s bank account. The judge found that the husband had taken and retained the money, relying principally on independent evidence from a bank clerk.

Permission to appeal was limited to whether new evidence concerning the position of a car outside the bank and an alleged Skype call required the judge to re-open those findings. The husband also made applications concerning amendment of his grounds, fresh evidence and adjournment.

1. Preliminary applications. Permission to amend the grounds was refused because the application was late, concerned matters outside the permission granted, and lacked sufficiently clear criticisms of the lower court. A purported expert report was admitted only to assist consideration of the husband’s welfare. The adjournment application was refused: the husband remained represented, had already given instructions and begun the appeal, and the balance of prejudice favoured proceeding.
2. Applicable approach. The appeal concerned the refusal to re-open perfected findings on new evidence, rather than a change of mind between a draft and perfected judgment. In the absence of fraud, mistake, misrepresentation or non-disclosure, the relevant question was whether, having regard to all the circumstances and the new evidence, it was appropriate to re-open the findings. Re Z (Children) (Care Proceedings: Review of Findings) [2015] 1 WLR 95 supplied a principled and broader framework than the narrower approach governing fresh evidence on appeal under Ladd v Marshall.
3. Application. The absence of parking enforcement did not materially undermine the bank clerk’s evidence. A person might have parked illegally for a short period without receiving a penalty. The forensic and Skype material was not sufficiently reliable or exclusionary to require reconsideration. Some of the Skype evidence in fact corroborated the original findings.
4. The bank clerk’s independent evidence was decisive. The Skype finding was supportive rather than the reason for the conclusion. The lower judge had considered the new evidence generously, both individually and cumulatively, and was entitled not to change his conclusion.
5. The appeal was dismissed. The husband was ordered to pay the wife’s costs of the appeal.

• High Court (Family Division): Appeal against orders of His Honour Judge O’Dwyer dated 23 January 2017 dismissed. The husband was ordered to pay the wife’s appeal costs.
• Central Family Court: The judge declined to re-open findings concerning the £340,000 and made final financial remedy orders, including a lump-sum order and provision for sale of the former matrimonial home in default.