Ladd v Marshall
| Jurisdiction | England & Wales |
| Judge | Lord Justice Denning,Lord Justice Hodson,Lord Justice Parker |
| Judgment Date | 29 November 1954 |
| Neutral Citation | [1954] EWCA Civ 1 |
| Docket Number | Case No.: |
| Year | 1954 |
| Court | Court of Appeal |
| Date | 29 November 1954 |
Lord Justice Denning
Lord Justice Hobson
and
Lord Justice Parker
Case No.:
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL.
Royal Courts of Justice
Mr F.W. Beney, Q.C. and Mr T.M. Eastham (instructed by Messrs G. Swinburne Raynes, agents for Messrs Atkins, Walter & Locke, Guildford, Surrey) appeared on behalf of the Appellant (Plaintiff).
Mr Ewen Montagu, Q.C. and Mr H.W. Sabin (instructed by Messrs White & Catlin, Feltham, Middlesex) appeared on behalf of the Respondent (Defendant).
HTML VERSION OF JUDGMENT
This is a most unusual case. In the year 1952 Mr Marshall owned a bungalow in Ashgrove Road, Ashford, Middlesex, with a pig holding attached to it. It was a new bungalow built under licence and the Local Authority had put a, condition in the licence that if it were resold the limit of price was some £l,500. Mr Marshall determined to offer the bungalow and land for sale. He put it into the hands of agents, who issued Particulars offering it for sale with vacant possession at the figure of £3,600 freehold. One of the people who became interested in this property was Mr James William Ladd. He went to see it. He negotiated with Mr Marshall for the purchase of it. Mr Marshall in the course of the negotiations told him that he would sell it with the addition of two plots of ground. He further told Mr Ladd that the price was controlled at £2,500. His solicitor had told him so. I suppose that was because the licence restricted the bungalow to £1,500 and, by throwing in the two additional plots, the price might be got to £2,500, but no more. At the beginning of April, 1952, a document was drawn up and signed in which the property was said to be sold for £2,500 freehold and £50 deposit paid. A twopenny stamp was put on it and signed by Mr Marshall. The document was drawn up by Mrs Ladd and was copied by Mrs Marshall at a meeting in the Marshalls' bungalow. The matter did not, however, go through, because on the 11th Jane, 1952, Mr Marshall's solicitors wrote to Mr Ladd's solicitors saying:
“We have to advise you that our client has instructed us that he does not wish to proceed with the sale of the above business to your client”.
About a month later Mr Ladd went to the police and told them that he had paid £1,000 to Mr Marshall as part of the deal and he wanted the £l,000 back and Mr Marshall would not give it to him. Now he has brought this action for the return of the £1,000. He says that at the meeting in April when the document of sale was signed, he paid Mr Marshall an extra sum of £1,000 in notes without anything being put into writing about it. It was paid “under the table” or “under the counter”, as the saying is. The reason was because, although the controlled price was £2,500, Mr Marshall still wanted to get the price of £3,600 which he originally asked, or as near as may be. Therefore, he (Mr Ladd) paid Mr Marshall the £1,000 for which he asked.
Mr Ladd at the hearing of the action gave evidence that he had saved up £1,000 in notes. He kept it in a tin box under his bed and on the day in question he went first to a friend of his, a man who had been partner with him, Mr Warren, and they counted out the £1,000 in Mr Warren's house. Indeed, a Miss Andrews, who was Mr Warren's secretary, was there and she helped count. It was all done up in bundles of £100 each, then tied in two lots of £500 each, and all put into a brown paper parcel and taken in a van to Mr Marshall's house. Mr Ladd and Mr Warren went with it. When they got to Mr Marshall's house the money was counted out. The £50 deposit was counted on the table but this £1,000 was counted out on the carpet and was paid over then and there. Mr Ladd said that he asked for a receipt for the £1,000, but Mr Marshall would not give one. His reason was that, as the controlled price was £2,500, if he gave a receipt for the extra £1,000, Mr Land could get it back from him afterwards. Mr Ladd said that he had already prepared a receipt, bat Mr Marshall would not sign it. He said: “My word is my bond”. Mr Ladd's version was supported by two witnesses. Mr Warren, his friend, who went with him, gave evidence to the sane effect as he and Miss Andrews, the secretary, gave evidence that she was present when the money was counted out in Mr Warren's house. Moreover, they all gave evidence of an earlier occasion in the course of the negotiations when Mr Marshall first asked for the £l,000. Those three witnesses were cross-examined and the Judge seems not to have gained a good impression of them.
Then Counsel for Mr Ladd called into the witness box Mrs Marshall, the wife of the Defendant, Mr Marshall. The hearing was on the 12th March of this year. On the previous day Mrs Marshall had filed a petition for divorce against her husband on the ground of his adultery. She was called into the witness box and this is what she said:
“Excuse me, my Lord, I do not wish to give evidence for or against my husband”.
It was pointed out that in a civil case a wife can be compelled to give evidence against her husband. So she was sworn and told she had to give evidence. She was asked about the occasion on the 2nd April when she took part in the preparation of the document. She said:
“I was called into the room”.
Then she was asked:
“(Q) At that time was there a parcel in the room?
(A) I cannot remember.
(Q) Did you see any money pass on that occasion? Was £l,000 counted out?
(A) I do not remember”.
Then Counsel said:
“You must remember”,
and the Judge said:
“''You cannot cross-examine your own witness. You are not to say, ‘You must remember’”,
and the Judge did not allow any cross-examination. So she did not help the case at all.
The only witness called for the defence was Mr Marshall himself, who denied that he had received the A1,000 at all.
The Judge then gave a very short Judgment in these words:
“I strongly suspect that taking advantage of the difference between the £3,600 in the first set of particulars, and £2,000, at which the contract was actually entered into, the Plaintiff and Mr Warren endeavoured to try and get £l,100 or £1,000 out of Mr Marshall, but I am not bound to pronounce any findings about that. This is a pure question of fact, and the decision of the case rests on whether or not the Plaintiff and the witnesses whom he has called have persuaded me that it is true that £1,000 was paid to the Defendant. I am not so persuaded. I prefer on every point where the evidence is in conflict the evidence of the Defendant to the evidence of the Plaintiff and his witnesses. There will therefore be judgment for the Defendant with costs”.
Inasmuch as the first sentence in that Judgment was not altogether clear we were invited by Counsel on both sides to see the Judge and ask him exactly what he meant. He told us that what he meant was that he suspected that, after Mr Marshall refused to go on with the sale on the 11th June, the Plaintiff and Mr Darren put their heads together to try and get £1,000 or £l,100 out of Mr Marshall and that Miss Andrews, the secretary, was implicated in it. This makes the case a very serious one for all these persons.
No appeal was entered by Mr Ladd within the six weeks allowed for doing so. Then on 6th May, 1954, Mrs Marshall obtained a decree nisi of divorce from her husband: whereupon she apparently felt free of him and she made a statement to her solicitors (who were also, as it happened, Mr Ladd's solicitors) in which she said that the evidence she had given at the hearing before Mr Justice Glyn-Jones was false. She said that she did remember what happened at the meeting of April, 1952: that she was there when the money was counted out; and that the £1,000 was counted out and handed over by Mr Ladd to her husband, Mr Marshall. In those circumstances, an application was made on Mr Ladd's behalf to this Court asking for the time for appeal to be extended. It was extended: and this appeal was accordingly entered by Mr Ladd against the decision of Mr Justice Glyn-Jones and Mr Ladd has also applied for leave to adduce further evidence by Mrs Marshall so that she can say what she now says is the truth, namely, that she was present when the £l,000 was handed over and that it was in fact banded over. She has made an affidavit in which she says that at the trial she was afraid of telling the truth because she was still living in her husband's house. She says he would almost certainly have resorted to physical violence and. that she was in fear not only of him but other members of the family and it was for that reason that she did not tell the truth. There was an affidavit by a notice sergeant as to another interview and by the solicitor, saying that he could not have got this evidence before.
Mr Money, arguing the case for Mr Ladd, has put it on two grounds. First, he says the fresh evidence by Mrs Marshall is so important that it should be received by this Court or a new trial had so that the matter can be fully investigated. Secondly, he says that in all the circumstances the trial was unsatisfactory.
It is very rare that application is made to this Court for a new trial on the ground that a witness has told a lie. The principles to be applied are the same as those always applied when fresh evidence is sought to be introduced. In order to justify the reception of fresh evidence or a new trial, three conditions mast be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence most be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive:...
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