Read the full judgment text of CACV 000058/1995 on BabelCite. This Court of Appeal judgment was delivered on 22 November 1995 before Nazareth VP, Liu JA, Mayo JA.
Civil procedure – appeal – application to adduce further evidence – conditions for reception of fresh evidence under Ladd v Marshall [1954] 1 WLR 1489 – first condition (reasonable diligence) – second condition (probable important influence on result) – third condition (apparent credibility) – third-party proceedings to determine whether 15th defendant was a natural son of deceased Mr Kwan – whether fresh evidence of 15th defendant's prior use of the name 'Kuan (Kwan) Tan Lau' / 'Daniel Kwan' and his 1962 conviction for making a false statement to obtain a travel document should be admitted – whether a strong prima facie case of wilful deception of the court under Skone v Skone [1971] 1 WLR 812 entitles the appellate court more readily to accept the second Ladd v Marshall condition – application of McDonald v McDonald [1966] A.L.R. 496 – Turnbull & Company v Duval [1902] A.C. 429 on necessity of prior discovery – distinction between fresh evidence applications and setting aside a judgment for fraud under Flower v Lloyd (1877) 6 Ch D 297 and Jonesco v Beard [1930] AC 298 – High Court Miscellaneous Proceedings No. 2996 of 1990 – Patrick Chan J finding that 15th defendant was natural son of Mr Kwan – new trial ordered – costs of appeal and below reserved to abide result of new trial. The Court of Appeal (Nazareth VP, Liu JA and Mayo JA) held that the 1962 student index, the Magistracy certificate of trial and the press reports were apparently credible and would probably have an important influence on the credibility-based determination, and that the 6th defendant had exercised reasonable diligence in seeking them; the Vice-President further held that the first group of Baptist College documents also satisfied the first condition because the college required the student's written consent which could not reasonably have been obtained from the 15th defendant. The court followed Skone v Skone in treating a strong prima facie case of wilful deception as a factor making it more ready to accept the second Ladd v Marshall condition, but confirmed that all three Ladd v Marshall conditions must still be satisfied and that a separate fraud application would ordinarily be brought by action. The order of Patrick Chan J was set aside and a new trial ordered; the appeal proper was dismissed as otiose, with all costs (below, of the appeal and of the new trial) reserved to the new trial.
Legal issues: Application of second condition in Ladd v Marshall to fresh evidence concerning identity of 15th defendant · Application of first condition in Ladd v Marshall (reasonable diligence) to fresh evidence · Whether a strong prima facie case of wilful deception of the court assists in admitting fresh evidence
Outcome: Application to adduce further evidence allowed; order of Patrick Chan J set aside; new trial ordered before another judge. The appeal proper was dismissed as otiose.