Bills v Roe
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HARMAN,LORD JUSTICE SALMON,LORD JUSTICE WIDGERY |
| Judgment Date | 12 March 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J0312-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 March 1968 |
[1968] EWCA Civ J0312-1
Lord Justice Harman
Lord Justice Salmon and
Lord Justice Widgery
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: Mr. Justice Karminski - Nottingham)
Mr. ALAN de PIRO, Q.C. and Mr. PEARSON (instructed by Messrs Wilkinson, Kimbers & Staddon) appeared on behalf of the Applicant-Appellants (Defendants Robert McGregor & Sons Ltd.)
Mr. BERNARD CAULFIELD, Q.C. and Mr. B.J. APPLEBY (instructed by Messrs. Routh Stacey & Co., Agents for Messrs. Colton & Franks, Newark-on-Trent) appeared on behalf of the Respondents the Plaintiffs Roe.
Mr. JOHN WILMERS, Q.C. and Mr. F.B. SMEDLEY (instructed by Messrs. Mancock & Willis, Agents for Messrs. Tallents & Co, Newark-on-Trent) appeared on behalf of the Respondent-Plaintiff Bills.
These are two motions, heard together, for new trials in two cases arising out of the same accident. The accident occurred as long ago as December,1963 I am sorry to say. The writs were not issued until June of 1966 - inside the three years, it is true, but very stale claims. The claim in one of them was by a man named Roe and his wife, he being the driver of and she a passenger in a van (not theirs, I think) going home on a Saturday night at one in the morning, taking the wrong road, driving through a fence, going over an embankment, and falling 30 feet. By extraordinary luck no very serious damage was done. That was the case of the driver and his wife. The second action was a case by a passenger in the car who sued the driver for negligence and sued over against the second defendants in that case, who were the road contractors who were responsible for the fence. As the matter turned out, the plaintiff Roe succeeded against the road contractors on the ground of their negligence and it was agreed that if he succeeded so indeed must his passenger Bills. So that there were two judgments, one for Roe against McGregor & Sons, the road contractors, and one for Bills. against the same defendants, and against Roe if he chose to enforce it, for a sum of damages.
In the course of Roe's action there was some question raised, this being a return from a social evening on a Saturday night at one in the morning, as to whether the plaintiff Roe had not had his capacity to drive impaired by the taking of drink. As to that he said that his total intake for the evening was three half-pints of bear, and the judge rightly said he could not think that had impaired his capacity at all. The judge therefore held that this was a completely sober driver driving home. The judge found that the obstruction across the road was not lighted that the two beacome were not lighted which were supposed to warn people that the road was blocked in this way, and that a notice which was there saying "Road Closed" or words to that effect was not something which on ordinary driver would see unless he waslooking for it; and he gave judgment for the plaintiffs.
There was another man in the car, a man named Harrison. Part of the Immunity they all preserved was perhaps due to the fact that the car was tightly wedged with people: this does happen. But when the news of Roe's and Bills' victory went round the public-houses of Newark, as apparently it soon did, Harrison at once began to protest against it, saying that to his knowledge the whole accident was caused by the fact that Roe was absolutely drunk at the time, quite unfit to drive, and that there had been a miscarriage of justice. Harrison had kept quiet up till that time. He says that be supposed that Roe had no right of action against the road contractors but he thought that Roe might recover on his own insurance and that he had promised Harrison to do something for him out of it. Harrison therefore kept quiet, thinking that the best chance of getting any redress at all was the hope that Roe would do something for him out of what he got from the insurance company.
It was apparently evident by the time of the trial (which was not till comparatively recently) that Harrison realised there was nothing for him. The trial of the action was on the 10th July of last year. The solicitor for the defendants was notified by the defendants, that is to say the contractors, of the rumours they had heard about Harrison's complainings, and she made some enquiries. As a result, she got into touch with Harrison, who said that to his knowledge he and every other male occupant of the car were hopelessly drunk and that was why the accident happened. Harrison said, moreover, "You will find they did not only go to this social occasion", about which we have heard ("they had spent several hours previously in a public-house of which I could not tell you the name". Further enquiries were made and the publican of that house has now come forward. He says that these people, Mr. and Mrs. Roe and Mr. and Bills, Bills, were in his public-house that evening and that the men at any rate had been drinking heavily, Roe a good deal more heavily than Bills.
Now the gravamen charges made against Roe does not end there. It is not merely that he said he had only had a pint and a half of beer when he had had twenty - so the defendants say: he also told the judge that he had gone straight to this social occasion from his home, making no detour except one to pick up some petrol. He said further that he did not know about the new by-pass, which was the cause of the closing of this road, which was quite within his area, because during that year he had been in hospital for ten or twelve weeks. It is said now that that was quite untrue, that if he had been in hospital part of that time he had been out of it at the week-ends and that he had been seen in the public-house on a number of occasions in the weeks before the accident.
So there is involved not only evidence of new facts but evidence which, if it be believed, will show that Roe was guilty of deliberate deceit of the court, that he was perjuring himself on three subjects, one the amount of drink he had taken, second the place from which he came, and third his ignorance of the roadway all of them deliberate untruths if the evidence to the contrary be believed.
It is by no means, of course, to be taken on these motions that this evidence is likely in the end to be believed. These motions are brought for leave to adduce this extra evidence. But in my judgment that would be, in a case of this sort, a hopelessly inconvenient course to take, because quite clearly, if Harrison and the publican are to have their evidence admitted, evidence to rebut what they say must also be admitted and there must be evidence on one side and the other which will very greatly alter the whole shape of the testimony. The only course, I think, for this Court, if it thinks it should do anything, is to order a new trial, and I think that really counsel in the end conceded that that was the proper course to take if the Court were moved to take any course.
But of course the Court has always held its face against new evidence and will only admit it in vary exceptional circumstances.The leading case on the subject, which is Ladd v. Marshall says that first of all it must be evidence which could not with reasonable diligence have been obtained earlier, secondly it must be evidence which, if believed, would or might have a very important effect on the mind of the tribunal, thirdly, that it is evidence which is of a sort which inherently is not improbable. It was argued before us that those conditions, and in particular the first of them, were not satisfied here. It was said that the defendants' solicitor knew that Harrison had been in the car: she had only, as it is said, to go to him and ask him for a statement and the whole matter would have come out at a much earlier stage and there would have been no need to come at this date and ask for the admission of fresh evidence. It in said that the solicitor made an error of judgment which, although perhaps understandable, be it said, was not excusable in the sense that she could have been said to have acted with reasonable diligence. In my opinion that charge entirely fails. I cannot see that there was any default at all on the part of the very experienced solicitor acting for the defendants in not approaching Harrison. He was a man directly in the other camp. He might be expected at any moment to start proceedings himself for damages, although he had not done so nor sent any letter making way claim hitherto. He was a person who was unlikely in the extreme, it might reason ably be supposed, to be willing to give evidence against his friends in the car that they were all drunk at the time. and I cannot think that it was any part of the duty of this lady acting as solicitor to the defendants to go and try to worm something out of Harrison. Indeed she expressed the view on oath that her opinion was that it would not have been a proper course to take, and I am far from saying that was not a view which she might reasonably hold. That being so, I think that this is evidence which has come to light since the trial and could not with reasonable diligence have been discovered before it. As to the publican, of course, it is not pretended that he was known or available or could have been with reasonable diligence discovered.I think, therefore, that the first of the conditions in Ladd v....
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