Boddy v Sinton & Anor

Fresh evidence on an appeal should not lead to a further trial unless it is particularly compelling and provides a very good reason to revisit the case. Evidence that may affect witness credibility, or reveal changed intentions and circumstances, is insufficient where the original factual finding rested on a broad evaluation of the evidence. The appellate court must assess whether the new material could realistically undermine the decisive finding, both individually and cumulatively. The need for finality in litigation is an important consideration.

The claimant appealed from a decision of the Southend County Court dismissing his claim for payment for building work carried out at a bungalow. The Recorder found that no agreement to pay for the claimant’s labour had been made.

Permission to appeal out of time was granted on the basis that the claimant could rely on fresh evidence, including planning documents, probate and Land Registry documents, a will and a deed of variation. The claimant argued that the material undermined the defendants’ evidence about ownership, their intentions and the arrangement concerning the property. The central issue was whether the fresh evidence justified overturning the Recorder’s factual conclusion or ordering a further trial.

1. The appeal was dismissed. The fresh evidence did not support the grounds of appeal, whether considered individually or cumulatively.

2. The planning documents did not provide a sufficient basis for impugning the Recorder’s decision. Any inconsistency in the evidence about the timing or purpose of the planning application was capable of being a mistake or ambiguity. Even if the claimant’s interpretation were correct, the material was unlikely to alter the Recorder’s evaluation of the documentary and witness evidence concerning the alleged agreement.

3. The deed of variation did not constitute sufficiently compelling fresh evidence. The family arrangement recorded in 2013 did not establish that the claimant was to be paid for his labour. The parties’ intentions and circumstances had changed materially by 2018, including the deterioration of the second defendant’s health and the breakdown of the relationship between the claimant’s daughter and the defendants’ daughter.

4. The later transfer and increased valuation of the property did not undermine the central finding that there had been no agreement to pay the claimant’s labour costs. Nor did inconsistencies already available to the Recorder amount to fresh evidence.

5. Following Hertfordshire Investments Ltd v Bubb [2000] 1 WLR 2318 at 2324C, litigation should have an end. A further trial should not be ordered without a very good reason. In this case the fresh evidence was not sufficiently compelling to justify allowing a further opportunity to litigate the claim.

• High Court (Queen’s Bench Division): The appeal from the Southend County Court was dismissed. Permission to rely on fresh evidence had previously been granted out of time.
• Southend County Court: Mr Recorder Catford QC found that no agreement had been reached to pay the claimant for his labour.