Adducing fresh evidence part 3
Last week we started looking at the Ladd v. Marshall tests. This week we consider the requirements that 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, and that the evidence must be such as is presumably to be believed and apparently credible.
Applying the tests in sequence let us assume that we have reached a stage where the evidence could not with reasonable diligence have been available for use at the trial. That proposition could of course apply to whole swathes of evidence. If the trial is not to be opened up again too easily, it is important that not just any evidence will do. The test is an important influence on the result.
It is plainly right that the evidence need not be so important that it would have been decisive. That would be an extremely high test to satisfy. All sorts of evidence which would or could be very important would not necessarily be decisive. However just as important as ensuring that the barrier is not placed too high is making sure that it is not placed too low. One could often say of all sorts of pieces of information that they might have made a difference, but to allow trials to be opened up for evidence of that sort would mean risking that they were being opened up all the time. That would not just have an effect on the litigants in the particular case, but on litigants in other cases. If people felt that judgements were likely to be readily reopened, it would be very difficult to rely upon finality. The present balance is a reasonable one. Deciding that evidence would probably have had an important influence is of course not the same as saying that it definitely would have. It does show that this must be important evidence.
Similar is the requirement that the evidence should apparently be credible. Credibility is often difficult to be sure about. Unless a claim or defence is regarded as so hopeless that the other side should get judgement without a trial, each party may call witnesses and some of that evidence might on the face of it be considered to be not particularly credible. Sometimes however that which does not seem credible at the outset proves to be true. That is part of the drama and uncertainty of a trial. However once one has already had a trial then it is quite right that further evidence should be limited. Unless evidence seems on the face of it to be credible there would plainly be no proper purpose served in making the parties go through the ordeal of trial again.
What is credible depends upon all the circumstances. Evidence can fail to be credible because it is inherently implausible and seems contrary to all common sense, or because it contradicts other evidence or documents. Just because the evidence seems credible does not mean it will ultimately found to be credible. Cross examination may rip it to shreds. However it is fair that the starting point should be only to let evidence in if it seems to be credible.