COUNSEL: F. W. Beney Q.C. and T. M. Eastham for the plaintiff.

Ewen Montagu Q.C. and H. W. Sabin for the defendant.

 

SOLICITORS: G. Swinburne Raynes, for Atkins, Walter & Locke, Guildford; Owen White & Catlin, Feltham.

 

JUDGES: Denning, Hodson and Parker L.JJ.

 

DATES: 1954 Nov. 23, 24, 25.

 

 

Leave to adduce further evidence on appeal will only be granted (1) if it is shown that the evidence could not have been obtained with reasonable diligence for use at the trial, (2) if the further evidence is such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive, and (3) if the evidence is such as is presumably to be believed.

 

Appeal from Glyn-Jones J., and motion for leave to call further evidence.

 

 

DENNING L.J., having stated the facts set out above, continued: It is very rare that application is made to this court for a new trial on the ground that a witness has told a lie. The principles to be applied are the same as those always applied when fresh evidence is sought to be introduced. To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.

 

We have to apply those principles to the case where a witness comes and says: “I told a lie but nevertheless I now want to tell the truth.” It seems to me that the fresh evidence of such a witness will not as a rule satisfy the third condition. A confessed liar cannot usually be accepted as being credible. To justify the reception of the fresh evidence, some good reason must be shown why a lie was told in the first instance, and good ground given for thinking the witness will tell the truth on the second occasion. If it was proved that the witness had been bribed or coerced into telling a lie at the trial, and is now anxious to tell the truth, that would, I think, be a ground for a new

 

1 (1880) 15 Ch.D. 165.

 

2 [1913] P. 214; 28 T.L.R. 319.

 

3 [1917] 1 K.B. 384.

 

4 [1927] 1 K.B. 468.

 

5 [1928] W.N. 164; 44 T.L.R. 574.

 

6 (1877) 36 L.T. 711.

 

7 (1899) 81 L.T. 531. [*1492]

 

trial and it would not be necessary to resort to an action to set aside the judgment on the ground of fraud. Again, if it was proved that the witness made a mistake on a most important matter and wished to put it right, and the circumstances were so well explained that his fresh evidence was presumably to be believed, then again there would be ground for a new trial: see Richardson v. Fisher.1 But this is not a case of bribery or coercion, nor of a mistake. It seems to me that Mrs. Marshall is not a person who in the new situation is presumably to be believed. She endeavoured to show that she was coerced by her husband, but on reading through the affidavits on both sides, it seems to me that the suggestion of coercion comes to nothing. She does not seem to have been in fear of her husband at all. I am afraid it is simply a case where a witness who has told a lie at the first hearing now wants to say something different. It would be contrary to all principle for that to be the ground for a new trial. In my judgment this appeal and the motion should be dismissed.

 

HODSON L.J., having agreed that the appeal for a new trial should be dismissed, continued: That brings me to the matter which really brought this appeal into existence, that is the fact that the wife of the defendant, the reluctant witness who said she did not remember anything, has now said, very shortly after the trial, having divorced her husband, that she told lies at the trial and now wants to tell the truth, the truth being, as she says, that she was present when this £1,000 was handed over. I think it is somewhat bold to ask this court to allow fresh evidence to be adduced in circumstances of that kind, because Mr. Beney, as one would expect, fairly recognized that here is a woman who, on her own showing, has told lies, and if there was a hearing of her evidence by this court, or at a fresh trial at which her evidence could be heard again, she could never be better than a discredited witness on whom it would be very difficult for any court to place any reliance. But Mr. Beney says that R.S.C., Ord. 58, r. 4, is wide in its terms and that there is a complete discretion in this court, which ought not to be fettered, to receive further evidence if the justice of the case requires it. But that discretion has been always exercised in the light of the maxim interest reipublicae ut sit finis litium. This seems to me to be particularly a case where one might envisage no end to litigation if people who had given evidence were allowed to come again and say “I told lies last time. I want to tell the truth now.” The principles on which further evidence is admitted have been recently discussed by this court in Braddock v. Tillotsons Newspapers Ld.2 I would only make a brief reference to the well-known case of Brown v. Dean,3

 

1 (1823) 1 Bing. 145.

 

2 [1950] K.B. 47; 65 T.L.R. 553; [1949] 2 All E.R. 306.

 

3 [1910] A.C. 373, 374. [*1493]

 

where the House of Lords affirmed a decision of the Court of Appeal and gave guidance on this topic. The passage which is often discussed and may be said perhaps to have been modified in part, is the portion of the speech of Lord Loreburn L.C., where he says:

 

“When a litigant has obtained a judgment in a court of justice, whether it be a county court or one of the High Courts, he is by law entitled not to be deprived of that judgment without very solid grounds; and where (as in this case) the ground is the alleged discovery of new evidence, it must at least be such as is presumably to be believed, and if believed would be conclusive.”

 

With regard to the word “conclusive,” Lord Shaw, who also made a speech in the same case, was doubtful whether he could accept the word “conclusive,” and the more modern cases have proceeded on the view that perhaps “conclusive” is too strong a word. But none of their Lordships dissented in any way; in fact, they agreed with the earlier part of the Lord Chancellor’s proposition that new evidence must at least be such as is presumably to be believed.

 

It seems to me that the evidence of Mrs. Marshall is not such as is presumably to be believed, on the face of it, from the facts which I have already recounted. In addition, when one looks at the affidavit which she has made in support of this motion, she seeks to say, in effect, that the defendant, who is a retired boxer, has on several occasions treated her with violence and attacked her with clenched fists and she has been obliged to seek the protection of the police. I suppose the only point of that paragraph was to suggest, if no more, that she refused to give this evidence in the first instance because she was afraid of her husband. But there is no suggestion that she did not give evidence because of any threats that her husband had made to her, nor was there any request for protection made by her at any time. In a further affidavit which she has filed in reply to affidavits put in on the other side she has admitted that since the date when she made this affidavit, May 26, she has been with her husband. She has been seen with him on apparently friendly terms and has gone to a public house and spent the night in the same house with him and other people. I am paying no attention to the affidavits put in on the other side but I am looking at her affidavit and the subsequent affidavit which she put in in reply. The story that she was acting under the duress of her husband has become exceedingly thin. In my judgment, there is no ground for allowing this fresh evidence to be admitted.

 

PARKER L.J. I agree. I would only add one word on the application for leave to call further evidence. The further evidence which it is desired to call in this case is the evidence of one of the plaintiff’s witnesses, Mrs. Marshall, who, it is said, will now say that what she said at the trial was a lie and that she is now prepared to tell the truth. The circumstances [*1494] in which the court on such an application will grant leave to adduce that further evidence must be very, very rare, for the very good reason that such evidence on the face of it does not comply with the test as laid down by Lord Loreburn L.C. in Brown v. Dean,4 where he said that new evidence must at least be “such as is presumably to be believed.” It may be that if it could be shown that the witness told a lie originally because he or she had been bribed, or because he or she had been coerced, nevertheless it could be said in those circumstances that her evidence was such as is presumably to be believed. But in this case there is no suggestion that the defendant bribed his wife; there is no suggestion that he coerced his wife to give the evidence which she did give at the trial. All that is said is that Mrs. Marshall, whose relations with her husband were strained, was afraid of his hitting her and afraid of physical violence. As regards that, the one thing which the further affidavits clearly show is that this woman was nothing like as afraid of her husband as she has made out, and she has utterly failed to satisfy me that the reason she gave her evidence as she did originally was through fear of her husband. As she has failed to prove any such ground, it is impossible, in my view, for any court to say that her evidence could be credible. In those circumstances, I would refuse the application and dismiss the appeal.

 

Appeal and motion dismissed.

 

4 [1910] A.C. 373.