The right to appeal on fresh evidence

District Judge Christopher Tromans updates the position regarding legal challenges on fresh evidence grounds

Ladd v Marshall [1954] 1 WLR 1489 CA, has been a thorn in the side of parties bent on overturning a court finding because of new evidence.

Such evidence would only be admitted if, among other things, it could not have been obtained with reasonable diligence for the original hearing.

Since the Civil Procedure Rules 1998 (CPR) came into force there are signs of some relaxation in the principle.

In Gillingham and others v Gillingham [2001] All ER (D) 52 (June) CA, a judgment was overturned on the basis of a letter which the appellant might with due diligence have produced at the trial but which she came across subsequently.

The overriding objective had to be taken into account and the court had to consider all the circumstances of the case.

And in Jones v South Tyneside Health Authority [2002] All ER (D) 200 (Nov) CA, it was said that the Ladd criteria were principles rather than rules although they would still call for careful consideration as matters the court would have to take into account under CPR rule 52.11(2).

Where there's a will

But when can an aggrieved party expect to have a second bite at the appellate cherry? In Taylor & Anor v Lawrence & Anor (2002) The Times, 8 February CA, the primary issue was whether the Court of Appeal had jurisdiction to permit a fresh appeal in a case where an earlier appeal on the same issue had been dismissed.

The facts are in some respects bizarre.

The case was a boundary dispute.

The claimant was represented by solicitors and counsel.

The defendants acted in person.

The trial judge disclosed to the parties at the beginning of the trial in the county court that he had been a client of the claimant's solicitors some time before, but neither party raised any objection to the case being heard by the judge.

In the event, the judge found for the claimant.

The defendants appealed to the Court of Appeal, one of the grounds being that there was an appearance of bias because of the disclosed professional relationship between the judge and the solicitors.

That appeal was dismissed.

Subsequently, an enquiry agent acting on behalf of the defendants contacted the solicitors, pretending to be the judge's accountant.

He discovered that the judge had not just been a former client of the solicitors but that he and his wife had had a consultation with the solicitors on the night before judgment in the action had been delivered concerning the preparation of new wills and that no charge had been made by the solicitors for the service provided.

The defendants then applied for permission to bring a further appeal.

As to whether the Court of Appeal could hear a further appeal, Lord Chief Justice Woolf looked at three areas.

Rules of court

The County Court Rules 1981, order 37 rule 1 - it is in the second schedule to the CPR and is still going strong - provides that a judge, normally the trial judge, can order the re-hearing of a case, or of an issue in a case, where no error of the court at the hearing is alleged.

Section 15(3) of the Supreme Court Act 1981 has the effect of enabling the Court of Appeal to exercise jurisdiction under rule 1.

The Ladd criteria had been satisfied but it was necessary to determine whether the Court of Appeal had jurisdiction in principle to reopen the appeal before the procedural route provided by the rule could be set in motion.

Fraud and its analogies

In Flower v Lloyd (1877) 6 Ch D 297, it had been held that in a case where a fraud had been practised on a court, a fresh action could be brought to impeach the original decree, but this did not give the Court of Appeal any further jurisdiction after an appeal had been determined.

However, in two recent cases, the Court of Appeal has indicated that a different approach can be adopted.

In Wood v Gahlings (1996) The Times, 29 November, it was held that the Court of Appeal would have jurisdiction if fraud could in fact be proved and in James v Williams (2001) CP Rep 42 it was held that a perfected order could be set aside where there had been a material fraud.

On this basis, Lord Woolf concluded that the door was at least open to the argument that the Court of Appeal could do likewise in other exceptional cases.

Retained jurisdiction

It was noted by Lord Woolf that while the House of Lords in Ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119 had held that the Lords, as the ultimate court of appeal, could correct injustice resulting from one of its own earlier orders, this principle did not automatically apply to the Court of Appeal.

Nor does the Court of Appeal in the ordinary way have any inherent jurisdiction since it has an appellate as opposed to an originating jurisdiction.

However, the Court of Appeal does have a residual jurisdiction to avoid real injustice in exceptional and appropriate cases.

Other important considerations are whether permission to appeal to the House of Lords would be unlikely to be granted, the effect of reopening the appeal on others and the extent to which the complaining party had been the author of his own misfortune.

A case of alleged bias could meet these criteria, since, if established, there would have been a breach of natural justice and the need to maintain confidence in the administration of justice made it essential that there should be a remedy.

But applications for permission to reopen an appeal must be made on paper and would be subject to firm control.

Oral hearings of applications for permission would only be permitted if the Court of Appeal so directed after consideration of the paper application.

In the present case, permission to reopen the appeal was granted but the substantive appeal was dismissed.

At the end of the day, the only criticism of the trial judge was that he had only given incomplete disclosure.

The Court of Appeal endorsed the 'fair-minded and informed observer' test derived from the line of authorities leading to Porter v McGill [2002] 2 WLR 37 and held that contacts between the judiciary and the legal profession should not be regarded as giving rise to a possibility of bias and so judges should be circumspect about disclosing relationships with solicitors they instruct in a private capacity.

District Judge Tromans sits at Plymouth Combined Court Centre