PREMIER EXPORTS LONDON LTD & Anor v PIYUSH RAJWANI

Relief from sanctions requires consideration of three matters: the seriousness and significance of the breach, the reason for it, and all the circumstances, including the overriding objective. An appellate court may admit fresh evidence only within its discretion under the Civil Procedure Rules, having regard to the established Ladd v Marshall criteria. Those criteria remain cumulative, so failure to satisfy one is fatal unless the overriding objective justifies admission. An appeal against factual findings requires proof of a legal misdirection or a conclusion unavailable on the evidence. A disagreement with the trial judge’s assessment is insufficient.

The claimants obtained judgment in the county court for money lent to the defendant. The defendant accepted the loans but alleged that a contractual employment bonus could be set off against the outstanding balance. HHJ Tracy Bloom rejected that case and found no contractual entitlement to a bonus.

The High Court conducted a rolled-up hearing of permission to appeal and, if permission were granted, the appeal. The defendant challenged the factual findings, sought to adduce fresh documentary evidence concerning a bonus scheme, and opposed an additional argument in the respondents’ notice concerning the alleged 2017–18 bonus.

1. Relief from sanctions. The respondents’ late evidence was admitted after applying the threefold test. The solicitor’s failure to diarise the deadline was not serious or significant, and the appellant had sufficient time to consider the evidence. Relief was therefore granted.
2. Fresh evidence. Under Civil Procedure Rules 1998, r 52.21(2), the appellate court retains a discretion to admit evidence not before the lower court. Ladd v Marshall remains important, although its criteria operate within that discretion and the overriding objective. The evidence must have been unobtainable by reasonable diligence, probably have had an important influence on the result, and be apparently credible. The criteria are cumulative.
3. The documents were apparently credible and could not reasonably have been obtained by the appellant for trial. However, they did not establish a contractual entitlement to a bonus and would not probably have influenced the result. The application to admit them was accordingly refused.
4. Challenge to factual findings. An appellate court may set aside findings of fact where the trial judge misdirected herself in law or reached a conclusion unavailable on the evidence. The complaints here showed neither. The trial judge’s conclusions were open to her on the evidence.
5. The respondents’ additional argument concerning accrual of the 2017–18 bonus was unnecessary to decide. If necessary, the court would have rejected it: entitlement could accrue during the relevant financial year even though payment was deferred until the following July.
6. None of the grounds was reasonably arguable and there was no other compelling reason to grant permission. Permission to appeal was refused.

• County court: HHJ Tracy Bloom gave judgment for the claimants after a three-day trial, finding that the money was owing and that the defendant had no contractual entitlement to a bonus.
• High Court (Queen’s Bench Division): Sir Andrew Nicol conducted a rolled-up hearing and refused permission to appeal.