Taylor & Anor v Over & Anor

LORD JUSTICE VOS:

1. We now have to consider the application by the respondent to this appeal to admit new evidence in answer to the appellant's appeal. That application was never formally made, and Mr Johnson QC has agreed that he must undertake to issue and pay the fee for an application to admit new evidence as a prerequisite to our consideration of his application.

2. CPR part 52.11(2) provides that: "Unless it orders otherwise, the Appeal Court will not receive [...] (b) evidence which was not before the lower court."

3. It is well known that the principles upon which an Appeal Court will admit new evidence are to be found in the case of Ladd v Marshall [1954] 1 WLR 1880 and I do not propose to lengthen this judgment by setting out those well known principles.

4. Mr Johnson has argued that the extensive new materials that he wishes to adduce are relevant to the resistance of the appellant's appeal because: "They are entirely consistent with the findings of the judge in relation to the indemnity issue."

5. He continues by saying that “if the new materials had been available at the trial they could in this context only have served to confirm the judge both in his findings of fact and in his conclusion that the rent payable under the lease was the responsibility of OTB.”

6. As was put to Mr Johnson in the course of argument this appeal seems to turn on a point of law, not a point of fact. The ground of appeal make no challenge to the judge's findings of fact. In those circumstances, it seems to me that there can be no possible basis upon which new evidence, which supports the judge's findings of fact, which are themselves not challenged, can or should be admitted in answer to an appeal. For that reason, I would dismiss the application to admit new evidence. LORD JUSTICE MAURICE KAY:

7. I agree. LORD JUSTICE SULLIVAN:

8. So do I.