In Peters v Joseph [2026] EWHC 775 (Ch) ('Peters'), Edwin Johnson J, under the heading 'The Evidence Application – analysis and determination', said, at paragraphs 48 to 57:

'The question of when an appeal court should admit new (fresh) evidence has been the subject of relatively recent consideration by the Court of Appeal in Kieran Corrigan & Co. Ltd v Timol [2024] EWCA Civ 1233 [2025] 3 All ER 838. The case was concerned with a claim brought by Kieran Corrigan & Co Ltd (“KCL”), an Irish company, against various defendants for breach of confidence. KCL’s complaint was that the defendants had made use of KCL’s confidential information for the purposes of designing and marketing a tax-saving structure. The defendants were OneE Group Limited, a company registered in England and Wales which was the vehicle by which the tax-saving structure was marketed and implemented, two tax advisers who worked for OneE Group, and Mr Timol, a director and minority shareholder of OneE Group.

At first instance, and following a trial on liability, the judge found the defendants to be liable, with the exception of Mr Timol. Mr Timol escaped liability on the basis that although he had been involved in the decision to market and implement the tax-saving structure, he had made the decision without reference to the confidential information and without being aware that the confidential information had been used in the design of the structure.

KCL appealed against the decision on liability, in relation to Mr Timol. Of the two grounds of appeal which remained at the hearing of the appeal, the first ground was that the judge had been wrong to find that Mr Timol was not liable for breach of confidence. The argument was that liability was strict and that Mr Timol could not escape liability on the basis that he did not know that the confidential information, which he had received, was being misused by other persons. This first ground of appeal failed. The Court of Appeal decided that, in circumstances where Mr Timol had not himself been using the confidential information, there was not enough to found primary liability for breach of confidence.

The second ground of appeal was that the Court of Appeal should set aside the factual findings of the judge, and order a retrial on the basis that KCL had discovered, since the trial, that Mr Timol had failed to disclose a number of documents which, so it was contended, demonstrated that Mr Timol had been familiar with the technical details of the tax-saving structure and had been put on inquiry that the structure had been developed using KCL’s confidential information, before he had approved the marketing and implementation of the structure. KCL was successful in this second ground of appeal. It is the decision of the Court of Appeal on this second ground of appeal which is relevant in the present case.

In his judgment, with which Andrews and Baker LJJ agreed, Snowden LJ summarised, at [74]-[83], the law on the admission of fresh evidence on appeal and on the question of when it was appropriate to order a retrial on the basis of fresh evidence.

At [74]-[76] Snowden LJ made reference to Hamilton v Al Fayed (No. 2) [2001] EMLR 15, at [11], and to Ladd v Marshall [1954] 1 WLR 1489, which had set out the principles governing the admission of fresh evidence on appeal, prior to the introduction of the CPR:

“[74] The discretion to admit the New Documents on appeal pursuant to CPR 52.21(2)(b) is to be exercised in accordance with the overriding objective. In Hamilton v Al Fayed (No.2) [2001] EMLR 15 at [11], Lord Phillips MR stated, when addressing the difference between the pre-CPR and post-CPR law on new (fresh) evidence:

‘… We consider that under the new, as under the old, procedure special grounds must be shown to justify the introduction of fresh evidence on appeal. … That question must be considered in the light of the overriding objective of the new CPR. The old cases will, nonetheless, remain powerful persuasive authority, for they illustrate the attempts of the courts 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. That task is one which accords with the overriding objective.’

[75] The old, pre-CPR, cases to which Lord Phillips MR referred include the well-known case of Ladd v Marshall [1954] 1 WLR 1489, which indicated that new evidence should only be admitted on appeal if (1) it could not have been obtained with reasonable diligence for use at trial, (2) the evidence is such that, if given it would probably have had an important influence on the result of the case (though it need not be decisive), and (3) it must be apparently credible (though it need not be incontrovertible).

[76] In Hamilton v Al Fayed, Lord Phillips MR also addressed, at [26], the approach to be taken by the Court of Appeal when ordering a retrial: ‘A new trial should be ordered when the interests of justice so demand. Where a party has behaved fraudulently, been guilty of procedural impropriety or some other irregularity has affected the fairness of the trial the vital question to be asked is whether there is a real danger that this has influenced the outcome. If there is, a retrial should normally be ordered. If there is not, the interests of justice require that the decision should stand.’”

Counsel for Mr Timol sought to argue that the test for the admission of new evidence was that new evidence which might lead to a retrial could only be admitted on appeal if it was imperative in the interests of justice. Snowden LJ recorded this argument, and the authorities relied upon by counsel for Mr Timol at [77] and [78]:

“[77] Mr Budworth contended that Lord Phillips MR’s approach understated the requirements for the admission of new evidence on appeal. He submitted that new evidence that might lead to a retrial could only be admitted on appeal if that was ‘imperative in the interests of justice’. In support of that submission he relied upon Ras Al Khaimah Investment Authority v Azima [2021] EWCA Civ 349 (‘Ras Al Khaimah’) at [110], where this court (Lewison, Asplin and Males LJJ) stated:

‘110. This court’s power to receive fresh evidence is to be found in CPR Part 52.21(2). The general principles on which that power are exercised are in essence those established by Ladd v Marshall [1954] 1 WLR 1489, viz (1) the evidence could not have been obtained with reasonable diligence for use at the trial; (2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive and (3) it must be apparently credible. In an ordinary civil claim satisfaction of these criteria is a necessary but not a sufficient condition for the reception of fresh evidence: Khetani v Kanbi [2006] EWCA Civ 1621. If these criteria are met, the appeal court has a discretion to exercise. In deciding how to exercise that discretion this court held in Transview Properties Ltd v City Site Properties Ltd [2009] EWCA Civ 1255 at [23]:

“The interests of the parties and of the public in fostering finality in litigation are significant. The parties have suffered the considerable stress and expense of one trial. The reception of new evidence on appeal usually leads to a re-trial, which should only be allowed if imperative in the interests of justice.” ’

[78] Mr Budworth also referred to Dale v Banga [2021] EWCA Civ 240 at [42]–[43]. That case demonstrates that where it is contended on an appeal that fresh evidence shows that a judgment was obtained by fraud, the Court of Appeal can either determine that the issue should be resolved within the existing proceedings, or require the party alleging fraud to bring a new action to set aside the judgment for fraud. In deciding whether to adopt the former course, the Court of Appeal will decide, as a threshold question, whether the fresh evidence is capable of showing that the judge was deliberately misled and whether that dishonesty was causative of the judgment being obtained in the terms that it was. If satisfied on that threshold question, the court will then determine whether, in all the circumstances, it would be appropriate to make an order remitting the issue of fraud to be determined by the first instance court. Mr Budworth submitted that the approach of the Court of Appeal to a request for a retrial where it is not alleged that the new evidence was dishonestly withheld from the trial judge, could not be any less rigorous.”

Snowden LJ was not persuaded that there was any difference in principle between the approach of Lord Phillips MR in Hamilton v Al Fayed and the approach in Transview Properties as endorsed in Ras Al Khaimah. As Snowden LJ explained, at [79]-[80]:

“[79] For my part, although expressed in different language, I do not detect any real difference of principle between the approach of Lord Phillips MR in Hamilton v Al Fayed and that in Transview Properties as endorsed in Ras Al Khaimah. Both emphasise that the Court of Appeal will not admit new (fresh) evidence on appeal unless that evidence would probably have had an important influence on the result in the court below. I consider that to be synonymous with there being a real danger that the result below would have been different. The cases also show that in exercising its discretion the Court of Appeal will be concerned to strike a balance between the need for finality in litigation and the need for the judicial process to achieve the right result.

[80] In striking that balance between the desirability for finality and achieving the right result, the Court of Appeal will take into account all the circumstances. So, for example, it may take into account the reasons for the new evidence coming to light and the conduct of the parties generally. If, as in the instant case, the reason why the new evidence was not available at trial was as a result of a failure by the successful party to disclose it in accordance with their obligations under the CPR prior to the trial, the arguments for the new evidence to be admitted in the interests of justice are likely to be stronger than if the evidence has become available from an independent source. The Court of Appeal may also take into account any delay in making the application, its proximity to the appeal hearing and whether the party facing the application is able to deal with it properly. As indicated in Transview Properties, the court can also take into account the general nature of the litigation and the burden on the parties of ordering a retrial.”

So far as Dale v Banga was concerned, Snowden LJ did not think that there was a difference of approach to be detected. As he explained, at [81]-[83]:

“[81] I also do not think that this approach is significantly different or requires to be modified by reference to Dale v Banga. That case concerned the question of what should be done by an appeal court where it is contended that fresh evidence, which does not go directly to the issues in the case, shows that the trial judge was deliberately misled. Dale v Banga concerned the attestation of a will and the case turned on the credibility of witnesses. The fresh evidence was said to show that a crucial witness that the judge had believed actually had a propensity to forge documents and act dishonestly in other aspects of his life. In such a case it is self-evident that the Court of Appeal would have to be satisfied, as a threshold question, that the fresh evidence was capable of supporting a pleading that the witness had deliberately misled the judge, and that such deception was causally linked to the result of the trial.

[82] Although necessarily expressed in different terms, I do not consider that the approach to the threshold question identified in Dale v Banga is more rigorous than the requirement in Ladd v Marshall that new evidence which does go directly to the issues in the case under appeal should be apparently credible and would probably have had an important influence on the result.

[83] I would also note that the approach to the exercise of the discretion whether to order the trial of the fraud issue by the lower court was said in Dale v Banga to be a broad one, to be exercised in light of all the circumstances. In my view that corresponds to the residual discretion whether to admit new evidence if it would lead to a retrial, as identified in Ras Al Khaimah.”

I was referred to other case law on the question of when an appeal court should admit new evidence, but for the purposes of the Evidence Application I do not think that it is necessary to make further express reference to the case law, beyond the decision in Kieran Corrigan. It seems to me that the relevant principles have been sufficiently set out by Snowden LJ in Kieran Corrigan. I now turn to the application of those principles to the Evidence Application.'

Edwin Johnson J in Peters then said, at paragraphs 58 and 59:

'In the application of those principles I find it most convenient to address the three questions in Ladd v Marshall, and then to consider the position more widely, in determining how the balance should be struck in the present case between the desirability for finality in litigation and achieving the right result. As Lord Phillips MR stated in Hamilton v Al Fayed (No. 2), cases such as Ladd v Marshall remain powerful persuasive authority on the question of whether new evidence should be admitted.

I will also take the second and third Ladd v Marshall questions first. The second Ladd v Marshall question is whether the Further Documents comprise evidence which is such that, if it had been given at the Trial, it would probably have had an importance influence on the result of the Trial. The third Ladd v Marshall question is whether the Further Documents are apparently credible. I will then come to the first Ladd v Marshall question which, on the facts of the present case, is considerably more difficult to answer than the second and third questions. The first Ladd v Marshall question is whether the Further Evidence could not have been obtained with reasonable diligence for use at the Trial.'

Later in Peters, at paragraph 86, Edwin Johnson said:

'While the answers to the Ladd v Marshall questions in the present case support the admission of the Further Documents as new evidence, it is clear from the guidance given by Snowden LJ in Kieran Corrigan that this is not necessarily the end of the question of whether the Further Documents should be admitted. I have a discretion to exercise. I have to strike the balance between the need for finality in litigation and the need for the judicial process to achieve the right result. The need for finality in litigation is important in all cases, and may be said to be of particular importance in the present case, where both parties, as litigants in person, have had to go through the stresses of the Trial, and where it appears that neither party has the funding to engage in lengthy and expensive litigation.'

On the facts in Peters, Edwin Johnson said, at paragraph 87 and 89:

'Nevertheless, in the exercise of this discretion in the present case, and taking into account all the relevant circumstances, it is clear to me that the balance comes down in favour of the need for the judicial process to achieve the right result. As such, it seems clear to me that the Further Documents, at least so far as they comprise the 2001 Exchange and the 2009 Emails, should be admitted as new evidence...In the particular circumstances of the present case, it seems to me that the need for the judicial process to achieve the right result...outweighs the need for finality of litigation.

...

Accordingly, my decision, on the Evidence Application, is that all of the Further Documents should be admitted as new evidence.'

Further Authorities 

In Mavin v Wyatt [2026] EWCA Civ 448, Baker LJ (with whom Snowden LJ agreed), said, at paragraph 54:

'Next, I consider the application to rely on fresh evidence on the appeal....Under CPR 52.11(2):

"Unless it orders otherwise, the appeal court will not receive... (b) evidence which was not before the lower court."

Prior to the introduction of the Civil Procedure Rules, the requirements for the admission of fresh evidence on appeal were expressed in the form of three criteria identified by Denning LJ in Ladd v Marshall [1954] 1 WLR 1489:

(1) the evidence could not with reasonable diligence have been obtained for use at the trial;

(2) the evidence must be such that, if given, it would probably have had an important influence on the result of the case (though it need not be decisive); and

(3) the evidence is apparently credible though it need not be incontrovertible.

It is well established that, although the Ladd v Marshall criteria are no longer primary rules, they “effectively occupy the whole field of relevant considerations to which the court must have regard in deciding whether in any given case the discretion should be exercised to admit the proffered evidence”, per Laws LJ in Terluk v Berezovsky [2011] EWCA Civ 1534 at paragraph 32.'

Separately, for a useful case on when an appeal court might interfere with a first instance judge's decision, see Bridging Finance Inc v Lyons [2026] EWHC 1388 (Ch)[1].

Collatory Case Series

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