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Can evidence ever be allowed in post-trial?

The following case deals with the rather unusual situation where an application is made to rely on evidence found after the trial is over but where judgment has not yet been handed down.

The short answer is yes, but only in very exceptional circumstances. In the case of Foster and another v Action Aviation Ltd and others [2013] EWHC 2930 (QB) a dispute arose following the sale of a small business jet aircraft by the defendants to the claimants. After the buyers had completed the transaction they found out that the aircraft had been involved in an accident upon landing. This naturally affected its resale value and resulted in the dispute. One of the main issues at trial was whether the seller had told the buyers that the aircraft they subsequently purchased had not been involved in any accidents. There were further question marks over where this conversation happened and who was present at the time.

After the claimants had finished giving evidence, the defendants produced documents from Execujet, a company in Dubai which provided ground handling services in relation to the aircraft. These appeared to broadly support their contention that the claimants’ evidence was flawed. The defendants’ solicitors even wrote to the claimants’ solicitors requesting that they abandon their allegations about the conversation and referred to the possibility of a perjury application.

Judgment in the case was reserved and after the trial the claimants travelled to Dubai with their counsel in order to check whether Execujet had any other relevant documents. They found two documents of relevance which seemed to support their own case against the defendants.

The claimants made an application to adduce the documents they found at Execujet’s offices and the defendants refused to consent. The application was listed for an oral hearing.

The Judge listed the following considerations as being of relevance:

1. The reason why the evidence was not put forward before;
2. The significance of the evidence;
3. The prejudice to the applicant if the application is refused;
4. The prejudice to the other parties if the application is allowed;
5. The need to do justice to all parties having regard to the overriding objective.

Taking each point in turn, he found that the reason why the application was late was because the significance of the Execujet documents did not become apparent until they were produced by the defendants at trial. Since only some of the documents had been produced, it would seem reasonable for the claimants to want to see the whole file.

As to the significance of the evidence, the defendants submitted it was not admissible since no hearsay notice had been served. The Judge rejected this argument and made the point that the defendants had failed to serve hearsay notice themselves in relation to the other documents from Execujet that they had disclosed at trial.

As to the weight of the evidence, he was satisfied that the documents were potentially of significance since they related to a central issue in the case.

As to prejudice, the documents related directly to the claimants’ credibility and there would be potential prejudice if the evidence was excluded. The application was also in response to the late disclosure of evidence by the defendants themselves.

On the final issue, the overall justice and the overriding objective, he concluded that this was a case where the court should have before it all potentially relevant documents on the important issue of fact. These factors amounted to “strong grounds” for exercising his discretion to admit the evidence.

The judgment provides a useful guide as to the relevant factors that the court should take into account when considering whether to exercise its discretion. It will, however, only be exercised in the most exceptional of circumstances.

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This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.

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