APPLICATION TO ADDUCE NEW EVIDENCE: COURT OF APPEAL WOULD NOT BE MOVED

In The National Guild of Removers & Storers Ltd v Bee Moved Ltd & Ors [2018] EWCA Civ 1302 the Court of Appeal refused the appellant’s application to adduce new evidence.  It is a a case that highlights the difficulties of adducing fresh evidence on appeal, coupled with the need to persuade the court that the evidence was not available at the time of the trial.

“It is well known that this court will not receive evidence which was not before the court below unless it orders otherwise: CPR 52.21(2). When determining whether to do so, the court must seek to give effect to the overriding objective of doing justice and, in doing so, attempt to strike a fair balance between the need for concluded litigation to be determinative of disputes and the desirability that the judicial process should achieve the right result.”

THE CASE

The claimant brought an action stating that the defendant had wrongly held itself out as a member of the claimant association. The claimant’s action was only partially successful at trial and failed in relation to one particular website.   One of the issues was whether the trial judge erred in accepting evidence from a defendant’s witness in relation to his ability to change, and knowledge of, a certain webpage.

THE APPLICATION TO ADMIT FURTHER EVIDENCE

The Court of Appeal considered the claimant’s application to adduce new evidence and rejected it.
  1. As the application to adduce fresh evidence is relevant to Mr Sampson’s knowledge of the existence of the directory page, which is central to the appeal, I will consider it first. Mr Gamsa on behalf of NGRS, submits that the Judge erred in finding that Mr Sampson was a reliable witness and instead, he should have found that Mr Sampson had knowledge of the existence of the directory page and access to it, in accordance with what Mr Gamsa describes as admissions contained in the Defence and Mr Sampson’s witness statement. Mr Gamsa says that the Judge was wrong to accept Mr Sampson’s contrary evidence given in cross examination and that the Judge’s findings should be disregarded. Furthermore, he says that the new evidence which he seeks to adduce demonstrates that Mr Sampson’s evidence given in cross examination, was unreliable and untrue.
  2. The application is supported by a witness statement dated 16 March 2017, made by NGRS’ solicitor, Mr David Sheahan. He exhibits the new evidence in the form of copies of three pages of the Really Moving website. He says that they are respectively the directory page on 9 March 2009, and views of the company page, in the sense of the pages to which BM had access, for BeeMoved (Brighton) on 16 March and 10 August 2009. The phrase “Member of NGRS” appears on the directory page in relation to BeeMoved (Brighton), (Crawley) and (Tunbridge Wells) but does not appear on the BeeMoved (Brighton) company page either on 16 March or 10 August 2009. Mr Gamsa submits therefore, that Mr Sampson’s evidence that he removed the wording from the pages to which he had access, being the company page or pages, shortly before the expiry of BM’s membership of the NGRS in June 2010, cannot have been true.
  3. Mr Sheahan explains that having received the draft judgment, he made enquiries of the “Internet Archive” and obtained the pages which he exhibits. He does not explain what the Internet Archive is or whether the dates of the screen shots of the webpages are intended to have a particular significance save that they precede the time in 2010 at which Mr Sampson stated in evidence that he had removed the phrase “Member of NGRS” from certain pages on the Really Moving site. Mr St Quintin on behalf of BM also pointed out that the webpage address for the exhibited pages is different from the website itself. There is no explanation of this discrepancy in the evidence.
  4. Mr Sheahan also adds that he does not recall seeing the phrase “Member of NGRS” on the pages of the Really Moving website to which BM had access (the company pages) at any time since his firm was instructed to investigate in preparation for the claim. He also says that: the evidence could not have been obtained earlier because it was not relevant in the light of the Defence and Mr Sampson’s witness statement and it could not have been foreseen that Mr Sampson would change his evidence in cross examination; that the fresh evidence shows that Mr Sampson was an unreliable witness and that his explanation in cross examination was untrue; and that the evidence goes to the heart of the case.
  5. In a short witness statement in response, dated 24 July 2017, Mr Sampson states that he is sure that he deleted references to the NGRS on the parts of the Really Moving website which he was able to affect, that he never, at any time prior to the letter before action, knew of the existence of the directory page, but that if his memory is faulty, and he did not delete the references to the NGRS, that it must have been because he logged on to do so and found that there were none. Although Mr Gamsa made reference to Mr Sampson’s 2017 witness statement in his submissions, it seems to me that Mr Sampson’s further evidence about his lack of knowledge of the directory page and the steps he took are neither relevant to whether the Judge erred in relation to the evidence before him at the trial, nor to whether the fresh evidence should be admitted and I take no account of it.
  6. It is well known that this court will not receive evidence which was not before the court below unless it orders otherwise: CPR 52.21(2). When determining whether to do so, the court must seek to give effect to the overriding objective of doing justice and, in doing so, attempt to strike a fair balance between the need for concluded litigation to be determinative of disputes and the desirability that the judicial process should achieve the right result. The principles in Ladd v Marshall [1954] 1 WLR 1489 remain not only relevant to the exercise of the discretion but are powerfully persuasive: Sharab v Al-Saud [2009] EWCA Civ 353: [2009] 2 LlR 160. They are: whether the evidence could have been obtained with reasonable diligence for use at the trial; whether the new evidence would have had an important influence on the result; and whether the evidence is apparently credible.
  7. In my judgment, it is not appropriate to admit the fresh evidence. In the circumstances of this case, the balance is in favour of the finality of the litigation. It seems to me that the fresh evidence could have been obtained before the trial. The issue of the state of different pages on the Really Moving website immediately before and after the cessation of BM’s membership of the NGRS up to and including March 2013, was always in issue. Paragraph 23a. of the Defence, which, as a result of the case management order stood as evidence in chief, was clear. It stated that none of the Defendants knew of the existence of the statement on the directory page and had not placed it there. Mr Gamsa says that that is ambiguous and might mean that they never knew or that they did not know after the termination of BM’s membership of NGRS. He also says that paragraphs 15, 18, 20 and 34 of Mr Sampson’s witness statement for the trial were not clear. However, it seems to me that the Defence when read with Mr Sampson’s witness statement were clear enough, or at least, raised all of the contentious issues.
  8. Furthermore, there was no fundamental shift in evidence during cross examination which made evidence of the state of the website pages in 2009 relevant in a way in which it had not been before. The paragraphs of the witness statement and the Defence were consistent with Mr Sampson’s evidence in cross examination and in my judgment, did not contain an admission that Mr Sampson had accessed the directory page of the Really Moving website, as Mr Gamsa suggests. Mr Sampson’s position and that of BM was that he had altered the pages of the Really Moving website to which he had access to remove the phrase “Member of the NGRS” and did not know of the existence of the directory page. Although the reference to alterations in paragraph 18 of his witness statement does not include an express statement that they were made on pages to which BM had access, that paragraph expressly refers to paragraph 15 in which that statement is made. When read as a whole, the same is true of paragraphs 20 and 34. The fresh evidence, therefore, did not only become relevant at the trial as a result of wholly inconsistent evidence in cross examination. It was always of some relevance and there is no suggestion that it could not have been obtained in time for the trial had anyone thought of it. The same is true of Mr Sheanan’s evidence that he did not recall seeing “Member of NGRS” on the company pages of the website at any time after having been instructed. That evidence would always have been of some relevance and could have been available at the trial had NGRS chosen to rely upon it.
  9. I have described the copies of the web pages as being of some relevance. On the face of it, they appear to contradict Mr Sampson’s evidence that shortly before BM’s membership of NRGS expired in June 2010, he went onto the Really Moving site and removed the offending phrase from the company pages to which he had access. However, to have any real influence upon the Judge’s estimation of Mr Sampson’s credibility in relation to whether he knew of the existence of the directory pages, it would be necessary also to be able to show that the position was the same in the weeks immediately preceding BM’s expiry of membership of the NGRS in June 2010. As it stands, the copies of the web pages are far from conclusive. I find it difficult to conclude that they would have necessarily affected the Judge’s estimation of the credibility of the witness overall. It is also difficult to come to a conclusion about the reliance to be placed upon the screen shots in the absence of further information about their provenance. All that is said is that they have been obtained from the Internet Archive. Although they may well be from a reliable and accurate source which relates in a logical way to the pages on the website itself, that is not explained.
  10. Lastly, when seeking to fulfil the overriding objective to do justice, it is important to bear in mind the effect on this litigation were the further evidence to be admitted. Although Mr Gamsa suggests otherwise, it seems to me that a retrial in the IPEC would be necessary and would inevitably result in more delay and cost to the parties. Taking all of these factors into consideration, it seems to me that the balance is struck in favour of the finality of litigation and it is not appropriate to allow the fresh evidence to be adduced.
  11. In the light of my conclusion about fresh evidence and the lack of any shift between the written evidence and that given in cross examination, it follows that Ground 2 of the appeal should be dismissed. The Judge was fully entitled to reach the findings he did based upon the evidence which he heard and it is not for this court to interfere. That is all the more so in the light of the fact that as the Judge recorded at paragraph [30] of his judgment, no part of Mr Sampson’s evidence about the website crash was challenged, nor was it put to either Mr Sampson or Mr Burns: that either of them knew of the Really Moving directory pages in question; or had placed the offending text on the directory pages.