Ashley Peters v Mary Joseph

An appeal court may admit fresh evidence where it could not reasonably have been obtained for trial, would probably have materially influenced the result, and is apparently credible. Those criteria leave a discretion requiring the court to balance finality in litigation against achieving a fair and correct outcome. Where a first-instance forgery finding was reached without important evidence and without weighing the inherent improbability of alleged serial forgeries, the finding may be set aside and remitted for retrial, even though the appeal court cannot determine the factual issue itself. A serious procedural irregularity justifies intervention only where a causal link to the result is demonstrated. A new point requiring different evidence or a materially different trial will generally not be permitted for the first time on appeal.

The Appellant challenged the Recorder’s finding that a declaration of trust concerning a residential property was forged. The Recorder had concluded that the Respondent and her former husband held the beneficial interest as joint tenants, so that the former husband’s interest passed to the Respondent by survivorship.

On appeal, the Appellant sought permission to rely on further documents, including correspondence and emails apparently acknowledging a 99%/1% division of the beneficial interest. He advanced four grounds: error in the forgery finding, fraud, procedural unfairness arising from the conduct of cross-examination, and severance of the alleged joint tenancy. The central issues were whether the further evidence should be admitted, whether the forgery conclusion could stand, and whether the severance argument could be raised for the first time on appeal.

1. Fresh evidence. The Further Documents satisfied the principles in Ladd v Marshall. They could not reasonably have been obtained for the trial, were apparently credible, and would probably have had an important influence on the result. The court retained a discretion under CPR 52.21 to balance finality in litigation against the need to achieve the right result. In the circumstances, the balance favoured admission of all the Further Documents, particularly the 2001 correspondence and 2009 emails.
2. Forgery conclusion. The Recorder’s conclusion that the declaration of trust and purchase agreement were forged could not stand. It had been reached without the newly admitted evidence and without properly considering the inherent unlikelihood of the Respondent’s case involving serial forgeries. The court could not decide whether the documents were genuine because it had not heard all the trial evidence and the Respondent had not received a fair opportunity to challenge authenticity. The conclusion was therefore set aside rather than reversed.
3. Other grounds. The procedural failure which left the Appellant to conduct cross-examination without the expected preparation was serious and unfair. However, intervention required proof of a causal and material effect on the result. That had not been shown because the Appellant conducted an extensive cross-examination and the matters raised by the missing questions were substantially before the Recorder. The fraud ground became unnecessary once the forgery conclusion was set aside. The severance argument was a new point which would have required a materially different trial and potentially new evidence, and was not permitted.
4. Order. Permission to appeal was granted on all four grounds. The appeal was allowed only on the first two arguments within Ground 1. Paragraph 1 of the order was set aside. The case was remitted to the County Court at Central London for a retrial before a different judge on whether the declaration of trust was forged. The Appellant could rely on the Further Documents but could not advance the severance argument.

• Chancery Appeals (ChD): Appeal from the order of Recorder Eaton Turner made in the County Court at Central London on 29 July 2024 and sealed on 21 October 2024. Appeal allowed in part; the forgery issue was remitted for retrial before a different judge.