Beckford v Cumper

• Jurisdiction: Jamaica
• Judge: Carberry, J.A.,Wright, J.A.,Bingham J.A.
• Judgment Date: 20 November 1987
• Neutral Citation: JM 1987 CA 63
• Docket Number: Civil Appeal No. 38 of 1986
• Court: Court of Appeal (Jamaica)
• Date: 20 November 1987

Court of Appeal

Carberry, J.A.; Wright, J.A.; Bingham J.A. (Ag.)

Civil Appeal No. 38 of 1986

Beckford

and

Cumper

Appearances:

Mr. B. Macaulay, Q.C., & Mr. R. Francis for the appellant.

Mr. S. Shelton instructed by Myers, Fletcher & Gordon, Manton & Hart for the respondent.

Practice and procedure - Evidence — Application to call fresh evidence — Trial completed — Appeal — Judgment of Court reserved — Judgment prepared for delivery — At that stage application made to call further evidence — Rule 18(2) and (3) of Jamaica Court of Appeal Rules — Ladd v. Marshall [1954] 3 All E.R. 754, leading case — New evidence was a certified copy of a 1899 deed — Evidence was such that with reasonable diligence it could have been obtained for use at trial — Evidence sought to be tendered shed no real light on the dispute — Application refused — Prepared judgment delivered.

Carberry, J.A.

1 This matter was before us last year and due to my own illness our reserved judgments were not ready for delivery until the 12th June, 1987, and that date was duly appointed for its delivery. For the record it may be noted that where all that is at issue is the delivery or handing down of a written judgment, the panel before which it is delivered is not necessarily the same as that which heard the case, but may be any panel sitting on the appointed date and containing one or more of the members of the original hearing panel. If, of course, something more has to be done at the time of delivery or handing down of the written judgment, for example hearing the parties as to costs, then naturally the original panel will be re-constituted for that purpose.

2 The attorneys of the parties are of course notified in advance of the date on which it is proposed to hand down the written judgment, so that they may be there to receive it and perchance to make any application that they may wish to make. And this was done here. It elicited an unexpected response. On the 11th of June, 1987, the appellant filed a motion “for leave to adduce fresh evidence.” The appellant set this motion down for hearing on the 12th June, the same date on which the written judgment in the appeal was due to be handed down. In these circumstances the panel that was sitting did not hand down the written judgment, but adjourned the matter to a date at which or on which the original panel could be re-assembled to deal with the new turn of events.

3 Due to the exigencies of the Court's work load, it was not until the 23rd October, 1987, that the original panel was re-constituted for the hearing of this application. The application was heard on that date, and was dismissed. We promised then to put our reasons in writing and do so now. We therefore deliver today our reasons for the refusal of the application to call further evidence, and also the written judgments in the substantive appeal that were to have been handed down on the 12th June, 1987. This judgment is therefore in a sense a post script to the original judgments in this matter. Rule 18 of the Jamaican Court of Appeal Rules deals with the general powers of the Court.

4 Rule 18 (2) is in the following terms:

• “18 (2) The Court shall have full discretionary power to receive further evidence upon questions of fact, either by oral examination in Court, by affidavit, or by deposition taken before an examiner or commissioner;

  Provided that in the case of an appeal from a judgment after trial or hearing of any cause or matter upon the merits, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.”

5 This then was the power of the Court that was being invoked in the application to call further evidence. The Jamaican rule is for all practical purposes identical with the U.K. Supreme Court Rule set out in Order 59 Rule 10 (2). And so too is 18 (3) of the Jamaican Rules, which reads:

• “18 (3) The Court shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been given or made, and to make such further or other order as the case may require.”

6 See the U.K. Rules Order 59 Rule 10 (3).

7 The application to offer further evidence in this case was unique in our experience; it came not merely after the trial below, but after the appeal therefrom had been argued, judgment reserved and in fact judgments prepared for delivery. We have been unable to discover any case in which such an application has been made at so late a stage. When we pointed this out, Mr. Macaulay for the applicant referred us to the recent Privy Council decision in Mend Leong Developments Pte. Ltd., v Jip Hong Trading Co., Pte. Ltd., [1985] A.C. 511; [1985] 1 All E.R. 120. We have been unable to draw any assistance from this case. While it is true that their Lordships in the Privy Council took note of facts or events which were not known to the Court of Appeal of Singapore, these were (a) evidence as to matters which had occurred after the original trial or hearing, and (b) what was at issue was whether the fact that the plaintiff in a sale of land case who had insisted on the vendor depositing the damages awarded with the plaintiff's attorney had thereby made an election which estopped him from applying for specific performance on the hearing of the appeal. The case was certainly not concerned with anything at all comparable to what the applicant seeks to do in this case.

8 The novelty of the application is not of course a bar to its success; it is possible to imagine cases in which such an application might succeed, but this is not one of them. What is necessary is to apply to this application the rules and approach that have evolved over the years in dealing with applications of this sort. So far as our own Courts go, there was a similar application to call further evidence in The Bustamante Industrial Trade Union v. The Shipping Association of Jamaica [1963] 5 W.I.R. 185; 8 J.L.R. 96. The Court in that case referred, to Turnbull v. Duval [1902] A.C. 429 (a Privy Council appeal from Jamaica); E.H. Lewis & Son Ltd., v. Morelli [1948] 2 All E.R. 1021 (C.A.); Brown v. Dean [1910] A.C. 373 (H.L.) and principally to the judgment of Denning, L.J., in Ladd v. Marshall [1954] 3 All E.R. 745; [1954] W.L.R. 1489. In that case Denning L.J., at page 748 said:

“In order 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; second, 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; third; the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.”

9 Denning, L.J.'s formulation was not novel. Very...