Adducing fresh evidence part 2
Last week we look at the circumstances in which an appeal court would allow further evidence in. Essentially these are what are known as the Ladd v. Marshall tests, namely 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. This week we commence consideration about how those tests will be applied.
The starting point is the reasonable diligence test. Trials and hearings are designed to be final ones in so far as possible. Finality in litigation is an important public purpose. Hearings are designed to decide legal rights and obligations (unless the parties are able to come to terms). It would plainly be hopeless if it was too easy just to say "Hang on I've got more evidence, let's have another trial". That would make it very difficult for people to have final resolution of disputes. Therefore whilst keeping it flexible, the starting point is the reasonable diligence test. Why was this evidence not available at trial? Could or should it reasonably have been available at trial? Since each side has to decide which evidence it will call at trial, it would plainly be unsatisfactory if either side were to be able to use as part of its armoury waiting to see a decision on what was regarded as significant and then effectively to try and plan its evidence all over again using the benefit of hindsight. Therefore you have to show that there was some real reason why the evidence was not available.
For example let us consider a case about a traffic accident. There may be a witness to the accident who only comes forward after the event. It may be that there was no realistic way for one party or the other to know about him or his evidence. It depends upon the circumstances. One can plainly see that there are lots of situations in which evidence would not have been available even if the party had been making reasonable efforts to obtain evidence. However there will likewise be lots of instances where the court will take the view that in fact with reasonable diligence the new evidence could have been available at the first trial anyway. One relevant factor is whether the proposed witness was a person that the party proposing to call the evidence could have regarded as obviously in his or her camp or willing or able to assist (see Skone v Skone [1971] 1 W.L.R. 812 at 816).
It is not just the existence of the witness or a witness having any knowledge which may be a reason for failing to call them. There may be other information which comes to a party's knowledge. It is this information which may suddenly make the evidence of the witness or comment by a witness on that information relevant when otherwise it would not have been. The question is the evidence, not the witness. It may be that reasonable diligence would not have uncovered certain information and without knowledge of that information it was reasonable not to call a particular witness, or even if the witness were called would have meant that the witness was unable to give the particular evidence which the appellant now seeks to rely upon.
Next week we shall consider the other Ladd v. Marshall tests.