Practice

Permission to appeal sought on basis of 'new' evidence which could have been raised before judgment given - appropriate remedy timeous application to correct error in judgment - permission refusedSpice Girls Ltd.

v Aprilia World Service BV (No.3): ChD (Arden J): 20 July 2000

Judgment was entered against the claimants on liability, at the first trial, and on damages, at the second trial.

The judgment on damages having been handed down in court (after corrections by the parties) a third hearing followed on costs.

At the end of that hearing the claimants applied for permission to appeal on the basis of 'new' evidence that the defendants had benefited by unquantified profits as distributors of another company's scooters which should have been credited against loss suffered as manufacturers of scooters under a contract with the claimants.

The facts about the distributorship had been admitted by the defendants in a letter before the first trial and at the second trial.

Ian Mill QC and Vernon Flynn (instructed by Lee & Thompson) for the claimants.

Andrew Sutcliffe (instructed by CMS Cameron McKenna) for the defendants.

Held, refusing the application, that an appeal was not an appropriate way to correct errors in findings of facts which could be corrected by the court of trial under its power to correct errors if the question were raised promptly; and that since the claimants had left it until the end of the third hearing to rely on facts known to them, despite having been invited to point out errors in the draft judgments sent to them, and since the defendants had been awarded damages under the overriding principle that a party wronged by misrepresentation should be compensated for its loss and that the proposed new evidence did not establish benefits to the defendants as manufacturers of scooters under the contract with the claimants, it was not appropriate to grant permission to appeal on the proposed new evidence or to amend the judgment.