Ladd v Marshall  EWCA Civ 1 is an English Court of Appeal judgment, which established the criteria for the Court to accept fresh evidence in a case on which a judgement has already been delivered.
In Premier Experts London Ltd -v- Rajwani  EWHC 1188 (QB) Sir Andrew Nicol refused the defendant’s application for permission to appeal. Relief was granted when new evidence was served late, however the judge held that evidence failed to satisfy the Ladd -v- Marshall test. The defendant’s application to appeal the judge’s findings of fact was dismissed.
An appeal court will only consider new evidence on very limited grounds. The test in Ladd -v- Marshall  1 WLR 1489 is that the applicant can show that the evidence could not with reasonable diligence have been obtained for use at trial. This test was considered by the Court of Appeal in Rawding -v- Seaga UK Ltd  EWCA Civ 113.
- The test for new evidence is that the evidence could not have been found with “reasonable diligence” and no higher.
- On the facts of the Rawding case it was argued the new evidence should be admitted and the matter remitted to the trial judge for further directions including the possible recalling of experts.
RECOVERY OF THE E-MAILS
The Court of Appeal set out how, after a draft judgment, the Defendant had almost accidentally found an expert that cast serious doubt on the issue of whether the emails were in fact sent.
In support of his appeal Mr Rawding sought permission to introduce fresh evidence which was not put before the court below. That evidence consisted principally of a report by a data recovery expert that examination of backup tapes generated by the server device through which Mr Rawding sent and received emails demonstrates, subject to one caveat, that the relevant emails were neither sent nor received, as the case might be, by Mr Rawding.
THE ADMISSION OF THE NEW EVIDENCE
The Court of Appeal held that the new evidence could not, with reasonable diligence, have been adduced prior to the trial. Old back up tapes had been found and the expert instructed was highly specialised.
“For all these reasons I am satisfied that Mr Rawding has demonstrated that Mr Bel-Dean’s evidence could not with reasonable diligence have been made available for use at the trial. The standard required is reasonable diligence, not higher. Of course Mr Bel-Dean could have been consulted earlier. But the consensus of opinion, acquiesced in by the single joint expert whose expert evidence alone could be relied upon at trial, was that the backup tapes could not conceivably yield useful information. When Mr Bel-Dean was ultimately consulted, it was in the different context of seeking his expert assistance on Mr Stinson’s discovery concerning the hexadecimal code. It was thus by pure good fortune that Mr Rawding came to consult an expert with sufficient depth of knowledge and relevant experience to know and to volunteer that the backup tapes might potentially yield useful information notwithstanding the multiple overwriting.”