Q&As

What court form should be used when making an application to adduce new evidence on appeal (a so-called 'Ladd v Marshall application')? Is there a time limit for making such application?

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Published on LexisPSL on 20/09/2016

The following Dispute Resolution Q&A provides comprehensive and up to date legal information covering:

  • What court form should be used when making an application to adduce new evidence on appeal (a so-called 'Ladd v Marshall application')? Is there a time limit for making such application?
  • Forms
  • Ladd v Marshall approach
  • Time limit

What court form should be used when making an application to adduce new evidence on appeal (a so-called 'Ladd v Marshall application')? Is there a time limit for making such application?

Forms

In relation to court forms, an N161 will be necessary if the Ladd v Marshall application to rely on fresh evidence is to be contained within the appeal notice. An N244 will be necessary if the application is being made separately. For further information, see Precedent: Application to rely on fresh evidence and Application to rely on fresh evidence: Butterworths Civil Court Precedents [202.3].

Ladd v Marshall approach

The appeal court will not normally consider evidence which was not before the lower court. However, in JW Grant and Co v Troy Foods Ltd, the Court of Appeal confirmed that it may allow new evidence to be adduced in an appeal pursuant to CPR 52.11(2)(b) if the criteria set out in Ladd v Marshall are satisfied, ie if the new evidence:

  1. could not have been obtained with reasonable diligence for use at the hearing below

  2. would probably have had an important influence on the result of the case had it been given (though the evidence does not need to be decisive)

  3. is apparently credible (although it does not need to be incontrovertible)

It is important to note that evidence that passes the Ladd v Marshall test will not

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