THE LADD -v- MARSHALL TEST: WHAT IS MEANT BY "REASONABLE DILIGENCE": A TALE OF COMPUTERS IN COURT
An appeal court will only consider new evidence on very limited grounds. The test in Ladd -v- Marshall  1 WLR 1489 is that the applicant can show that the evidence could not with reasonable diligence have been obtained for use at trial. This test was considered by the Court of Appeal in Rawding -v- Seaga UK Ltd  EWCA Civ 113. A case of considerable interest to all those interested in law and computing as well as procedure.
The claimant were suing the defendant under an alleged personal guarantee. The only issue at trial was whether a guarantee had been given in two emails. The defendant alleged that he had never sent these e-mails, nor had he received two other e-mails from the defendant.
A joint expert was instructed who stated that the evidence in relation to the provenance of the e-mails was “inconclusive”.
After a draft judgment was received, finding for the defendant, the claimant obtained a report from a data recovery expert. This demonstrated that the e-mails had never been sent or received.
- The test for new evidence is that the evidence could not have been found with “reasonable diligence” and no higher.
- On the facts of this case the new evidence should be admitted and the matter remitted to the trial judge for further directions including the possible recalling of experts.
RECOVERY OF THE E-MAILS
The Court of Appeal set out the history of how, after a draft judgment, the Defendant had almost accidentally found an expert that cast serious doubt on the issue of whether the e-mails were in fact sent.
- In support of his appeal Mr Rawding seeks permission to introduce fresh evidence which was not put before the court below. That evidence consists principally of a report by a data recovery expert, Andrew Bel-Dean, dated 7 May 2014, although that is now supplemented by a second report from Mr Bel-Dean dated 30 January 2015. The gist of that evidence is that examination of backup tapes generated by the server device through which Mr Rawding sent and received emails demonstrates, subject to one caveat, that the relevant emails were neither sent nor received, as the case might be, by Mr Rawding. The caveat is that the emails could have been deleted in a manner which the examination of the backup tapes would not have detected if that deletion exercise had been carried out between 6.42pm and 8.00pm on 10 July 2006. However that could not have been done by the user of the email account using email client software such as Microsoft Outlook. The exercise would require access to the Microsoft Exchange Server software managing a number of different email accounts. Moreover the exercise in question is both complicated and time-consuming. Mr Bel-Dean would not expect it to be possible for an average, or even above average, IT engineer in a non-specialist company without specialist technical IT knowledge to carry out such a task. It would he suggests require someone with appropriate Microsoft qualifications, such as those he himself holds, and he estimates that the task would take him personally about an hour to perform.
- Taken at face value, the new evidence shows it to be implausible, to put it no higher, that the four emails were sent or received, as the case might be, by Mr Rawding. Apart from the oral, highly contested, evidence of Mr Chesney and his personal assistant as to the circumstances and manner in which the emails purportedly emanating from him were sent, Seaga relies only upon paper copies of the four emails, having disclosed no hardware or backup material from which they can be reproduced electronically. It is common ground that it would be “childishly easy” to forge those paper copies with a word processor and leave no trace that they were not authentic.
- It is unnecessary for present purposes to explain or to examine the reasons why Seaga has only ever produced paper copies of the four emails upon which it relies, although this is a matter which as I shall later explain may require to be revisited. The four copies are reproduced on two sheets of paper. The first sheet of paper reproduces an email apparently sent by Mr Chesney to Mr Rawding at 3.17pm on 5 July 2006, and an apparent response from Mr Rawding to Mr Chesney at 11.42pm on 6 July 2006. The second sheet of paper reproduces an email apparently sent by Mr Chesney to Mr Rawding at 8.55am on 10 July 2006, and an apparent response from Mr Rawding at 6.42pm on the same day. I am not sure that the evidence at trial established precisely by whom or in what circumstances these two pieces of paper were generated in this form, although the case seems to be that it was done either by Mr Chesney or by his personal assistant Stacy Fernstaedt, both of whom the judge regarded as impressive witnesses. It was certainly the evidence of Stacy Fernstaedt that she had typed the two emails from Mr Chesney to Mr Rawding and that she had discussed with Mr Chesney on 10 July 2006 the content of the email sent by Mr Rawding on 6 July 2006.”
THE ADMISSION OF THE NEW EVIDENCE
The Court of Appeal held that the new evidence could not, with reasonable diligence, have been adduced prior to the trial. Old back up tapes had been found and the expert instructed was highly specialised.
“For all these reasons I am satisfied that Mr Rawding has demonstrated that Mr Bel-Dean’s evidence could not with reasonable diligence have been made available for use at the trial. The standard required is reasonable diligence, not higher. Of course Mr Bel-Dean could have been consulted earlier. But the consensus of opinion, acquiesced in by the single joint expert whose expert evidence alone could be relied upon at trial, was that the backup tapes could not conceivably yield useful information. When Mr Bel-Dean was ultimately consulted, it was in the different context of seeking his expert assistance on Mr Stinson’s discovery concerning the hexadecimal code. It was thus by pure good fortune that Mr Rawding came to consult an expert with sufficient depth of knowledge and relevant experience to know and to volunteer that the backup tapes might potentially yield useful information notwithstanding the multiple overwriting.”
THE DIRECTIONS MADE: THE MATTER BE REMITTED BACK TO THE TRIAL JUDGE
- Accordingly I have no doubt that this is an appropriate case in which to admit the new evidence on the appeal. I would admit both Mr Bel-Dean’s report of 7 May 2014 and his second report of 30 January 2015. In the light of that evidence, the appeal must plainly be allowed. I would set aside the judge’s judgment against Mr Rawding, and refer or remit to Judge Halbert for determination the issue of the authenticity of the emails.
- If my brethren are in agreement with this course it will be for Judge Halbert to give directions as to the conduct of this determination. Since however we have admitted the evidence of Mr Bel-Dean on this appeal, it is to my mind clear that Mr Rawding should be permitted to produce that evidence before Judge Halbert. In any event however, having regard to the manner in which the evidence has emerged, and having regard to Professor Sommer’s apparent approach to the likely utility of the backup tapes, it would not in my judgment be appropriate in these changed circumstances to adhere to the regime which permits evidence on the technical aspects to be given only by a single jointly instructed expert. In so suggesting I mean no disrespect to Professor Sommer, whose approach may yet be vindicated, and who has had no opportunity whatever to comment upon the current debate. There is however no further role for him to play. Plainly Seaga must be at liberty to adduce its own expert evidence on data recovery. Beyond that, it will be a matter for the judge what further fresh evidence, if any, to permit. He may well feel it appropriate to permit certain witnesses to be recalled, or to be required to be re-tendered for further cross examination.