Canada Trust Company v Stolzenberg
| Jurisdiction | England & Wales |
| Judge | Nourse,Pill,Waller L JJ. |
| Judgment Date | 06 May 1998 |
| Date | 06 May 1998 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal (Civil Division)
Nourse, Pill and Waller L JJ.
Murray Pickering QC, Michael Briggs QC and Charles Salter (instructed by Colman Coyle) for the appellants.
Christopher Carr QC and P Marshall (instructed by Llewelyn Zietman) for the respondent.
The following cases were referred to in the judgment of Waller LJ:
Dubai Bank Ltd v Abbas (unreported, 17 July 1996, CA)
Krakauer v KatzWLR [1954] 1 WLR 278
Ladd v MarshallWLR [1954] 1 WLR 1489
Star News Shops Ltd v Stafford Refrigeration LtdWLR [1998] 1 WLR 536
Procedure — Evidence — Test for admitting fresh evidence on interlocutory appeal.
These were applications to admit fresh evidence on appeals in interlocutory applications.
Certain defendants appealed from a judge's decision refusing to set aside service on them out of the jurisdiction, and the Court of Appeal decided (see [1998] CLC 23), as matters of principle, that the date of issue of the writ was the relevant date for deciding whether the first defendant was domiciled in England for the purposes of art. 6 of the Lugano Convention, and that the standard of proof on the issue of domicile was a good arguable case. The defendants, who were represented by new solicitors and counsel, applied for the admission of new evidence on the appeals, to the effect that the first defendant had a domicile in Germany at the relevant time, on the basis that had that evidence been before the judge it would have been material when considering the question of domicile.
Held, dismissing the defendants' applications:
1. The strict rules in Ladd v MarshallWLR [1954] 1 WLR 1489 did not apply to appeals in interlocutory matters and there was a less strict regime with a “general discretion” to admit fresh evidence. The nature of the application, the reason why the evidence was not adduced below, the opportunity for putting in evidence and the nature of the evidence were all factors to be considered. ( Star News Shops Ltd v Stafford Refrigeration LtdWLR [1998] 1 WLR 536 applied.)
2. The fresh evidence should not be admitted. Domicile and jurisdiction would not be debated again at trial but a decision should be reached with finality as early as possible provided each side had had a fair opportunity to prepare and present evidence at first instance. The defendants elected to fight the jurisdiction issue on the basis of the evidence put in at that stage and on the basis of the investigations they had chosen to carry out. They could not show that they were misled by the plaintiffs, or prevented by time constraints or because they did not have the resources. The new evidence did not demonstrate that the evidence before the judge was false. It was simply evidence the defendants now wished they had obtained and put before the judge. There should be no encouragement of the view that the matter of domicile could easily be reargued on additional evidence in the Court of Appeal. Accordingly it was not necessary to consider whether the Brussels and Lugano Conventions allowed a defendant to have two domiciles or contemplated that he should have only one.
Waller LJ: On 23 May 1997 Rattee J dismissed an application to set aside service of proceedings on certain defendants. Notice of appeal against that decision was issued on 13 June 1997. This court heard argument on 28–30 July 1997 on three points of principle, it being hoped that the decision on the points of principle would resolve or help to resolve all issues arising on the appeal. On 29 October 1997 we delivered judgment on the three points of principle (see [1998] CLC 23).
By the time we delivered judgment, the fourth defendant was no longer appearing on the appeal because he had been found to be in contempt of orders made by the court, and those appellants known as the RB defendants were now represented by different solicitors and different counsel.
The change in representation has had two consequences. First, the RB defendants now known as the CC defendants have not obtained all the documentation from Richards Butler because that firm is exercising a lien. Second, despite the decision on the points of principle, one issue remains unresolved. I put it that way because it does appear from the skeleton arguments which were exchanged on the previous occasion that those then representing the CC defendants did not contemplate that if this court ruled (a) that date of issue of the writ was the relevant date for the purpose of deciding when the first defendant was domiciled in England, and (b) that the standard of proof was that of a good arguable case, that fresh evidence, then the subject of an application to this court, would actually have produced, if admitted, a basis for suggesting that the judge's decision on that...
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