Grounds of appeal—introducing new evidence
Grounds of appeal—introducing new evidence

The following Dispute Resolution guidance note provides comprehensive and up to date legal information covering:

  • Grounds of appeal—introducing new evidence
  • When will the court allow fresh evidence on an appeal?
  • To what extent will the Ladd v Marshall criteria be relevant?
  • Application of the Ladd v Marshall criteria
  • Other factors affecting the court’s decision to admit new or fresh evidence on appeal
  • Examples where permission to adduce new evidence was granted
  • Examples where permission to adduce new evidence was refused
  • Application to adduce fresh evidence

When will the court allow fresh evidence on an appeal?

The appeal court will only allow an appeal where the decision of the lower court was:

  1. wrong, or

  2. unjust because of a serious procedural or other irregularity in the proceedings in the lower court

For more information, see Practice Note: Grounds for appealing and preliminary considerations.

Pursuant to CPR 52.21(2), the appeal court will not generally consider oral evidence or evidence which was not before the lower court. In Hamid v Francis Bradshaw Partnership, Jackson LJ held that the default position under the CPR is that fresh evidence is excluded, and the normal approach therefore is for the court to start with the findings of primary fact made by the court or tribunal below and examine whether that court or tribunal fell into legal error.

However, it is possible to rely on fresh evidence to give rise to a ground of appeal. The appeal court has all the powers of the lower court including receiving evidence (CPR 52.20(1)). In Hamilton v Al Fayed, the court noted the need 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, in accordance with the overriding objective.

The court retains a discretion under to CPR 52.21(2)(b) to order