Fresh evidence excluded on appeal even though late evidence had been admitted in the court below LTL 12/6/2018 Extempore ChD

Sahota v Singh LTL 12/6/2018 extempore ChD

Insolvency

Last week HHJ Pelling QC (sitting as a Judge of the Chancery Division) refused the Respondent’s application to admit fresh evidence in a forthcoming appeal against two bankruptcy orders that had been made on account of costs awards in the long running case of Shergill v Khaira [2015] AC 359 and [2017] EWHC 883.

Rejecting the Respondent’s argument that the fresh evidence should be admitted under CPR 52.21(2) because it replied to witness statements which the Appellants had filed at the hearing below, the Appellate Court ruled that the Respondent’s evidence could with reasonable diligence have been obtained earlier for the purposes of the test set out in Ladd v Marshall. Accepting that the Appellants’ statements had been served very late, the Judge nevertheless found that the Respondent should have obtained his new (fresh) evidence by the date of the bankruptcy hearing because the statements addressed facts which had been in issue from the outset of the proceedings. Adopting the dicta in Terluk v Berezovsky [2011] EWCA Civ 1534 the Judge held that although the court’s discretion under CPR 52.21(2) did not have to be exercised solely by reference to the threefold requirements set out in Ladd v Marshall in this case they were decisive.

Rejecting the Respondent’s arguments that the exclusion of their (fresh) evidence would cause injustice the Court also observed that any prejudice suffered by the Respondent flowed from his failure to seek an adjournment of the original hearing in order to respond to the Appellants’ new statements and to serve a Respondent’s Notice in respect of the Appeal.   Absent such a notice the fresh evidence was, in the Judge’s view, of little or no relevance since the Appeal would be limited to a review of the lower court’s decision based on the evidence that had been before it.

Clifford Darton appeared for one of the successful Appellants instructed by Suzanne Jones and Erica Nuttall of Howard Kennedy LLP.

15th June 2018