Introducing further evidence after final judgment is delivered

Introducing further evidence after final judgment is delivered

Family analysis: In AR v ML [2019] EWFC 56, Mostyn J overturned a trial judge’s decision to allow an application, after delivery of the final hearing judgment, to adjourn the case so that the wife could have the opportunity to present new evidence by way of property particulars. Matthew Richardson, barrister at Coram Chambers, comments on the case and its implications.

What are the practical implications of this case?

A key point that emerges is a reminder of the need to make sure that the different strands of a case match up to one another. The wife in this case came unstuck because the case she was advancing as to her housing needs and the funds she needed for purchase was inconsistent with the evidence she presented as to suitable properties. Having requested a lump sum that would enable a housing fund of £525,000, the wife was presenting property particulars starting at £575,000, and the judge at first instance therefore declined to award her such a sum, as there was no evidence she could actually use it to buy a house as she suggested she would.

The second, related, key point is the need to make sure that apparent gaps in the evidence are addressed as soon as possible upon them becoming apparent. Another problem faced by the wife in this case was that even after the deficiency in the evidence as to housing had been repeatedly highlighted, an application to seek to introduce further evidence in order to plug the evidential gap was not made. Only after the (unfavourable) judgment was received was there such an application, by which time it was too late.

Finally, in terms of practical implications, if there is a situation where one needs to apply to adduce fresh evidence only after a judgment has been delivered (but before it has been perfected into an order) this case clarifies and develops the case law setting out the legal test for such an application to be successful.

What was the background?

This is a relatively unusual reported matter, in that it was a financial remedies final hearing in a typical ‘every day’ case, which we don’t actually see reported all that often. Even more rare are reported cases about property particulars and the essentials of case preparation and strategy.

The background facts are quite classically straightforward, in that this was a case principally about the parties’ needs and the division of the assets to enable each to re-house independently. There were no issues as to spousal maintenance and no pensions issues. The welfare of a child of the family was relevant and was considered, and there was some consideration given to contributions, as this was a short marriage case that included a significant discrepancy as to what each party had contributed financially, the husband having contributed more.

The central aspect relevant to the appeal was the wife’s request for a lump sum that would give her a re-housing fund, after repayment of debts, of £525,000. The husband was proposing (with property particulars in support) that the wife could re-house for just under £400,000. The trial judge declined to award the fund the wife sought, as it was not supported in evidence (her particulars starting at £575,000). On the evidence, the trial judge awarded the wife slightly more than the husband had said was a suitable housing fund, so it was determined that a fund of £410,000 would be needed.

Having found that the wife’s proposals did not produce a fair outcome and the husband’s proposals did not meet the wife’s needs, the award therefore made to the wife was £478,000, so that after repayment of debts, she would have £412,000 to be able to re-house. The wife, after the delivery of judgment, then applied to delay the proceedings and for the judgment not to be perfected into an order, so that she could have time to obtain and introduce further evidence of properties that she could purchase for £525,000, suggesting also that the husband could produce more particulars. The trial judge acceded to this request, and the husband appealed.

What did the court decide?

On appeal it was argued on behalf of the wife that the court had the power to reconsider its decision pursuant to the decision of the Supreme Court in Re L-B (Reversal of Judgment) [2013] UKSC 8, [2013] 2 FLR 859. However, it was argued on behalf of the husband that despite this power being available, there were clear requirements for how it should be exercised.

Mostyn J made it clear that the principle of finality is very important and there have to be good reasons to revisit a judgment. Examples of such reasons identified in previous cases include:

  • fraud
  • material non-disclosure
  • certain limited types of mistake (such as an important mistake about the facts or a failure to consider a key part of the evidence), or
  • a subsequent important event that was unforeseeable at the time (a Barder event)

No such reasons were apparent in this case.

The case was comparable to that of Vringo Infrastructure v ZTE Ltd [2015] EWHC 214 (Pat), [2015] All ER (D) 187 (Feb), where a losing party had tried to introduce further evidence after receipt of the judgment. The Vringo judgment sets out the way in which the factors in Ladd v Marshall [1954] 3 All ER 745 are to be considered, which includes a requirement of due diligence, which Mostyn J highlighted as a very important consideration (para [21]). The due diligence requirement is consistent with, and gives effect to, the finality principle. Mostyn J said (at para [22]):

‘To allow litigants to treat the trial as a dress rehearsal and to seek a further performance on the basis of new evidence which could, with due diligence, have been supplied first time round sends a terrible message to prospective litigants. … The idea that there could be a re-run of the case at the suit of a disappointed litigant on the basis of evidence, yet to be obtained, but which could have been obtained, is appalling.’

A ‘very good reason’ to revisit a judgment in such a case would be needed, and one was not present in this case (para [38]). The wife’s application was a spurious attempt by a disappointed litigant to get the judge to change her mind and it should not have succeeded. Mostyn J therefore allowed the appeal and ordered the trial judge to make an order in the terms of the original judgment.

Interviewed by Anne Bruce.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

This News Analysis was first published by LexisPSL Family. Click here to request a free one week trial.

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