Fresh Evidence On Appeal: Recent Comments From The Eastern Caribbean Court Of Appeal

• Published date: 26 July 2023
• Law Firm: Ogier
• Author: Mr Shane Quinn and Oliver Payne

Introduction

1. It is an important policy of appellate jurisdictions that litigants should not be permitted to use the appeals process as an opportunity to improve upon the evidence they relied on in the court of first instance. The appeals process exists to correct errors in the decision of the court below and not to provide an unsuccessful litigant with a hearingde novo. However, in certain circumstances it will be in the interests of justice for the Court of Appeal to admit evidence that was not before the trial judge.
2. While the Eastern Caribbean Civil Procedure Rules, 2000 ("CPR") do not contain a specific rule governing the admission of fresh evidence on appeal, the Court of Appeal has developed a body of case law which sets out the approach the court will adopt when asked to consider evidence that was not before the court of first instance. This article gives an overview of the Court of Appeal's approach to admitting fresh evidence how a recent judgment has clarified the law in this area, and how prospective litigants best protect their position.

Ladd v Marshall: test or guidelines?

3. The most well-known and authoritative explanation of the law governing admitting fresh evidence on appeal is to be found in an old English case, Ladd v Marshall[1954] 1 WLR 1489. Under Ladd v Marshall, fresh evidence would be allowed on an appeal against a final decision only if the evidence
   1. could not have been obtained with reasonable diligence for use at the hearing in the lower court;
   2. was such that, if given, would probably have had an important influence on the result of the case, though it need not be decisive; and
   3. the evidence must be such as is presumably to be believed; it must be apparently credible, though it need not be incontrovertible.
4. Prior to the introduction of the CPR, Ladd v Marshall largely represented the entirety of the legal position on this issue. The CPR, however, transformed the landscape of civil procedure. In particular, the CPR introduced the concept of an overriding objective. The overriding objective (CPR r1.1) ensures that cases are dealt with justly. This includes, among other things, ensuring that the parties are on an equal footing saving expense, dealing with cases in a way which is proportionate to the value of the case, the importance and complexity of the case and the financial position of the parties. CPR 1.2 requires the court to give effect to the overriding objective when exercising any discretion given to it in the CPR.
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