New Evidence

Banks v Cox (CLW 20 October CA)

The claimant purchased a nursing home from the defendant who he alleged had deliberately concealed from him that the nursing home was in financial difficulty when answering pre-contractual enquiries. On his appeal against the dismissal of the claim he sought to introduce new evidence in the form of a witness statement from an individual who had been present at meetings with the defendant. The importance of the witness had not been appreciated at trial but it was submitted that the relevance of the statement justified a retrial. In allowing the appeal the court held that the evidence was admissible under CPR rule 52.11(2) and satisfied the requirements for the hearing of fresh evidence on appeal in Ladd v Marshall [1954] 1 WLR 1489. (1) The claimant had attempted with all due diligence to obtain the witness statement, but at that stage had been unaware of its significance; (2) the witness was credible and the information may have been essential; (3) the judge might well have adopted the incorrect test if the representation had been made fraudulently as in such a case the burden would not lie on the claimant to prove that he had relied on the misrepresentation, but for the defendant to prove the contrary. In summary, the evidence may have influenced the outcome of the original trial had it been known. Further, it was undesirable to deny the potential victims of fraud the possibility of redress.