Tanner v Miller

JurisdictionEngland & Wales
JudgeLady Justice Arden
Judgment Date03 October 2013
Neutral Citation[2013] EWCA Civ 1463
CourtCourt of Appeal (Civil Division)
Date03 October 2013
Docket NumberCase No: A3/2013/0291

[2013] EWCA Civ 1463





Royal Courts of Justice

Strand, London, WC2A 2LL


Lady Justice Arden

Case No: A3/2013/0291


Mr Arfan Khan (instructed by Direct Access Scheme) appeared on behalf of the Appellant.

Mr Edward Cohen (instructed by Ashton KCJ Solicitors) appeared on behalf of the Respondent.

(As Approved)

Lady Justice Arden

This is a renewed application for permission to appeal against the refusal by an order dated 23 January 2013 of Sales J to admit fresh evidence on the appeal of Mr Tanner on an application for permission to appeal against a decision of District Judge Pelly in the Cambridge County Court. On this application Mr Tanner is represented by Mr Khan, and I am indebted to him for his thorough submissions. The position is that Mr Khan accepts that the proper route for an appeal from the decision of District Judge Pelly was to the High Court, and in those circumstances Mr Khan required either the leave of the Cambridge County Court or the High Court for permission to appeal. It is not possible for this court to give permission to appeal. The most it could do was to say that there was a procedural error in the exclusion of fresh evidence and that the matter should be reheard. The matter would then go back to the High Court and any further application for the admission of fresh evidence would be made there. Therefore it was established in an early point in this hearing that the further applications on notice to the respondents for leave to introduce yet further fresh evidence of an art expert, Mr Lamberty, and for Mr Lamberty to have access to certain drawings in issue, are not properly made in this court and must be dismissed. Mr Cohen has appeared on those applications and will make an application for costs when I finish this judgment, because in any event those applications must be refused.


So the sole issue with which I am concerned is whether there should be permission to appeal against the judge's exclusion of fresh evidence. The matter is put in three ways. The first submission is that while Mr Tanner had lawyers advising him in the interlocutory stages of this case, when it came to the trial he acted in person with the assistance of a McKenzie Friend; that is to say, he did not have his solicitors to assist him. They, he says, should have realized that this evidence which he now seeks to have admitted on an application for permission to appeal in any subsequent appeal was relevant and they failed to put it in. Therefore he says that it should now be possible for him to apply to put that evidence in.


Mr Khan's submission is economically put as follows. He submits there are conflicting authorities as to whether the practice of the court set out at pages 1,750 to 1,752 of the White Book, as it is commonly called, being correctly titled "Civil Procedure Volume 1", represents the current state of the practice of an Appeal Court. The position as there set out is that this court treats as of greatest relevance three factors set out by Denning LJ, as he then was, called Ladd v Marshall, and the first of those is that it should not have been possible by reasonable diligence to have adduced the evidence sought to be adduced on appeal at the time of the trial. Sometimes it happens that events move on, or it is discovered that a party has been fraudulent, which is not suggested here, and there is fresh evidence which could not with reasonable diligence have been adduced at the trial.


What Mr Khan submits is that where a party is acting in person at a trial, the test which is set out in the White Book is not the test, and the test is a more general test of where the interests of justice lie. He submits that if evidence is relevant, then under this test it will be admitted on terms that the costs of the other party which are wasted are paid by the applicant. So Mr Khan accepts that it would have to be that order for costs. This submission rests on establishing that the position described in the White Book no longer represents the law or is the subject of a conflict of authorities.


Mr Khan took me to a decision of a first instance judge, Mr Robert Hamm QC, in Oraki v Dean and Dean [2012] EWHC 2885, where the judge does indeed refer to the overriding objective as being the benchmark for exercising the...

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