Tanner v Miller

This is a renewed application for permission to appeal against the refusal by an order dated 23 January 2013 of Sales J to admit fresh evidence on the appeal of Mr Tanner on an application for permission to appeal against a decision of District Judge Pelly in the Cambridge County Court. On this application Mr Tanner is represented by Mr Khan, and I am indebted to him for his thorough submissions. The position is that Mr Khan accepts that the proper route for an appeal from the decision of District Judge Pelly was to the High Court, and in those circumstances Mr Khan required either the leave of the Cambridge County Court or the High Court for permission to appeal. It is not possible for this court to give permission to appeal. The most it could do was to say that there was a procedural error in the exclusion of fresh evidence and that the matter should be reheard. The matter would then go back to the High Court and any further application for the admission of fresh evidence would be made there. Therefore it was established in an early point in this hearing that the further applications on notice to the respondents for leave to introduce yet further fresh evidence of an art expert, Mr Lamberty, and for Mr Lamberty to have access to certain drawings in issue, are not properly made in this court and must be dismissed. Mr Cohen has appeared on those applications and will make an application for costs when I finish this judgment, because in any event those applications must be refused.

So the sole issue with which I am concerned is whether there should be permission to appeal against the judge’s exclusion of fresh evidence. The matter is put in three ways. The first submission is that while Mr Tanner had lawyers advising him in the interlocutory stages of this case, when it came to the trial he acted in person with the assistance of a McKenzie Friend; that is to say, he did not have his solicitors to assist him. They, he says, should have realized that this evidence which he now seeks to have admitted on an application for permission to appeal in any subsequent appeal was relevant and they failed to put it in. Therefore he says that it should now be possible for him to apply to put that evidence in.

Mr Khan’s submission is economically put as follows. He submits there are conflicting authorities as to whether the practice of the court set out at pages 1,750 to 1,752 of the White Book, as it is commonly called, being correctly titled “Civil Procedure Volume 1”, represents the current state of the practice of an Appeal Court. The position as there set out is that this court treats as of greatest relevance three factors set out by Denning LJ, as he then was, called Ladd v Marshall, and the first of those is that it should not have been possible by reasonable diligence to have adduced the evidence sought to be adduced on appeal at the time of the trial. Sometimes it happens that events move on, or it is discovered that a party has been fraudulent, which is not suggested here, and there is fresh evidence which could not with reasonable diligence have been adduced at the trial.

What Mr Khan submits is that where a party is acting in person at a trial, the test which is set out in the White Book is not the test, and the test is a more general test of where the interests of justice lie. He submits that if evidence is relevant, then under this test it will be admitted on terms that the costs of the other party which are wasted are paid by the applicant. So Mr Khan accepts that it would have to be that order for costs. This submission rests on establishing that the position described in the White Book no longer represents the law or is the subject of a conflict of authorities.

Mr Khan took me to a decision of a first instance judge, Mr Robert Hamm QC, in Oraki v Dean and Dean [2012] EWHC 2885, where the judge does indeed refer to the overriding objective as being the benchmark for exercising the power to admit fresh evidence. But that is not a decision which could have any impact on the established jurisprudence in this court, which is composed of many decisions of this court, because under the doctrine of precedent the first instance is bound by decisions of this court. So I need not go further into Oraki; it simply does not help mount the argument.

Mr Khan also took me to Mahon v Air New Zealand Ltd [1984] AC 808 at 821. I am not going to read out that passage because this was not a case under the Civil Procedure Rules, so it cannot possibly vary the practice of this court. Finally, Mr Khan referred me to the decision of another constitution of this court in Campbell v Daejan Properties Limited [2012] EWCA Civ at 1503, and in particular at paragraph 31, where Jackson LJ states that the power to admit fresh evidence on appeal must be exercised in the manner which will give effect to the overriding objective set out in CPR 1. I do not think that passage assists Mr Khan’s argument either, because in the same paragraph Jackson LJ states:

“It is generally accepted, however, that the factors of principal relevance are those stated by Denning LJ in Ladd v Marshall.”

So I do not think that the submission that there is a conflict in the authorities is made out on what has been submitted to me. Mr Khan goes on to submit that, if there is no conflict in the authorities, they do not deal with the position of a litigant in person. Of course, the court is very much alive to the problems which litigants in person face, and the court has to be vigilant to see that litigants in person are not prejudiced to an inappropriate extent by virtue of being unrepresented. But there is simply no authority for saying that there is to be some other test for the admission of fresh evidence when the case is conducted by a litigant in person. A litigant in person has to comply with the rules of procedure in the same way that a party would if represented. So, as I say, there is absolutely no ground on which I could give permission to appeal on the first submission.

There is a second and alternative submission on that point, which is on the basis that if the Ladd v Marshall conditions were satisfied, then the lawyer’s failures should not be attributed to Mr Tanner. The position is that when the lawyers were acting they did not produce and serve this evidence, so it was not adduced at the trial. I do not have to go into the content of the evidence; Mr Khan accepts that that is so. It was simply produced on appeal. So it was there to be found, because it was produced by Mr Tanner when he made his application for permission to appeal. What is said is that the acts of the lawyers should be separate, and that it is sufficient in law if the litigant in person on his own could not reasonably have discovered the evidence which he now seeks to apply on appeal.

This submission is founded on the case of Balevents Ltd v Allan James Sartori [2012] EWCA Civ at 1508, and in particular on paragraphs 21 and 31. There the issue was whether the appellant, Balevents, could have unearthed the material which was sought to be adduced on appeal. It concerned accounting records, and the solicitors had given evidence that it never occurred to them that the accounting records could have survived the liquidation in 2003. There was then further argument, including an argument that it would only be the wisdom of hindsight to suggest that the evidence could have been obtained at the time of the trial. This point, as I read it, is accepted by Rimer LJ, giving the principal judgment. He accepts at paragraph 27 that in all the circumstances it could not fairly be said that Balevents should have addressed its mind to the possibility of the unearthing of the Griffin accounting material for use at the trial, or in any way could have with reasonable diligence have so unearthed it. So Rimer LJ is there applying an objective test, and in my judgment it simply is a misreading to suggest that he was not taking into account what the solicitors could reasonably have done. That was a case where there was representation, so it does not, as I see it, justify a submission that the acts of the lawyers should not be attributed to Mr Tanner.

As I say, the test is objective: could a litigant reasonably have produced this material beforehand? Sales J considered that matter at great length, and he came to the conclusion that it was not substantiated that the evidence could not be produced before the hearing. Now it may seem very hard that there is a test which is objective in the circumstances of this case, a question of what a reasonable litigant would have been able to do. But this is, as I see it, the balance which the law strikes between parties in a situation in which further evidence comes to light. Obviously, in an ideal world it would be a good thing to have another trial at which further evidence was adduced, but that involves costs and delay, and it does involve depriving the party who did succeed of the benefit of the judgment which he obtained, and it involves depriving him without him having been at fault; the fault was on the side of the party now seeking to adduce evidence. So in those circumstances I do not consider that there is any basis on which I could give permission to appeal on the basis that the lawyer’s acts should not be attributed to Mr Tanner himself. Mr Khan has not sought to challenge the reasoning of Sales J in relation to that part of the application of the Ladd v Marshall test and in his consideration of that factor as the relevant factor.

That takes me to the third submission, which slightly qualifies the point that Mr Khan does not challenge the judgment. Mr Khan submits that the judge was wrong in paragraph 19 to say that Mr Edmonston had produced documentation before the hearing. Looking at the witness statement, that is precisely what Mr Tanner did say. So the judge was not in error. The judge is making the point that if Mr Edmonston had not produced documentation, the natural thing to do would have been to ask Mr Edmonston about the documentation, and, as we would say, ask him to give a witness statement; and so the judge is entitled to infer that if Mr Edmonston produced documents before the hearing, that he would also have told Mr Tanner, or those advising him, what he subsequently said he would have said if called as a witness. So I do not think that there is any point there on which I could give permission.

Mr Khan also took me to an earlier point in the judgment, based on paragraph 9, about Mr Tanner in the judge’s assessment having failed to show that the evidence could not have been obtained with reasonable diligence for use at the trial. This again is really a re-presentation of the objective test argument that there should not be an objective test for litigants in person, and I have already dealt with that matter above.

For these reasons I must refuse the application. There was one factor which was not mentioned in the course of submissions which I will now mention, and that there is a public interest also at stake when it comes to setting aside judgments at trial on the basis that there is further evidence which could have been admitted at the time, and the public interest is in the termination of litigation. That is also a factor behind the construction of the court’s practice set out at page 1,750 of the White Book.