Adducing fresh evidence part 1
Over the last few weeks we have looked at various issues arising from the Mills McCartney divorce. This week we continue by considering the evidential position.
Press reports suggest that Heather Mills has a new team of forensic accountants working on trying to prove that Paul McCartney is worth £800 million rather than the £400 million he suggested he was worth and which the judge effectively found he was worth for the purpose of the divorce. After the hearing Miss Mills (who of course represented herself with assistance) was reported to have said "He's been worth £800million for the last 15 years." .
The judge has already reached his judgement. He has made certain findings of fact. What can a party do at that stage to effectively change the judgement?
We will deal first with the situation where there has been a trial rather than a settlement. The judge has heard witnesses and reached his decision. That decision has been delivered and recorded in an order of the court. Obviously you can appeal the decision in the ordinary way, but it may well be that on the evidence as it stood it would be unlikely that the appeal court would interfere. Fresh evidence becomes available which you think is crucial. What impact can that have? How do you go about putting it before the court?
Although there is a relatively tight timescale for appeal, in an appropriate case the appeal court can extend the time for appealing. CPR 52 .11(2) states that, unless it orders otherwise, the appeal court will not receive oral evidence or evidence which was not before the lower court. The key issue is in what circumstances this will change.
When the appeal Court considers fresh evidence one of the things it takes into account are the so-called tests in Ladd v. Marshall (1954 1 WLR 1489 at 1491). The tests are that: the evidence could not have been obtained with reasonable diligence for use at the trial; the evidence must be such that if given would probably have an important influence on the result of the case but need not be decisive; the evidence was be such as is presumably to be believed and apparently credible. Since that case was decided the rules have changed and the Civil Procedure Rules have come into force. The rules then in force (the Rules of the Supreme Court) indicated that evidence would be received only "on special grounds". That is no longer the case. However the courts have decided that the principles in Ladd v. Marshall remain relevant for the exercise of discretion (Hertfordshire Investments Ltd v Bubb 2000 1 WLR 2318 at 2325).
The overriding objective on the CPR requires that the courts deal with cases justly. Therefore in any particular case the circumstances might mean that it is appropriate and fair to allow the fresh evidence to be put forward and an appeal to be brought out of time. However in the main the tests in Ladd v. Marshall will be a valuable guide to how the court will work.
Next week we will look at some of the practical implications involved in applying those tests.