Court of Appeal

Published August 27, 2008

Lifely v Lifely

When the court was considering the admissibility of arguably wrongfully obtained fresh evidence it might consider factors going beyond the classical test.

The Court of Appeal (Lord Justice Ward, Lord Justice Sedley and Lord Justice Stanley Burnton) so stated on July 30, 2008, when allowing the appeal of the claimant, Andrew Lifely, from a decision of Judge Weeks, QC, sitting as a judge of the Chancery Division in Bristol on September 7, 2006, determining the terms on which the claimant and the defendant, Nicholas Lifely, were in partnership, and ordering accounts to be taken.

On appeal, the claimant sought permission to adduce fresh evidence contained in diaries discovered after the hearing before the judge.

LORD JUSTICE WARD said that, unusually, the Court of Appeal had heard live evidence, confirming that the classical conditions as to the admissibility of fresh evidence were satisfied: Ladd v Marshall ([1954] 1 WLR 1489).

However, regard was also had to: (i) delay, which was here not an impediment; and (ii) the ostensibly conflicting interests under the European Convention on Human Rights as to as to a fair trial (article 6) and respect for private life (article 8), where it was accepted that there was at least a good arguable claim for misuse of private information as protected by article 8.

Thus, applying, inter alia, Campbell v MGN Ltd ([2004] 2 AC 457) and balancing the applicable rights accordingly, permission was given to adduce the fresh evidence and a rehearing would take place.

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