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Features of the present procedure for appeals to be by way of rehearing include the
following :-
(a)
As appears from the first three sub-rules of O 59 r 10, it is open to the Court of
Appeal to re-assess the facts, albeit generally only on the basis of the
documentary record rather than by hearing the oral evidence afresh. This
contrasts, for example, with the role played by the Court of Appeal on a
statutory appeal by way of case stated, where it has a power of review, limited
to questions of jurisdiction and error of law.
(b)
The Court of Appeal has a discretion, reflected in O 59 r 10(2), to admit fresh
evidence which was not before the court below,
but it does so only on
"special grounds". Those "special grounds", set out in Ladd v Marshall [1954]
1 WLR 1489 and applied ever since, were explained by Denning LJ as
follows :-
"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."
(c)
The Court of Appeal has power to set aside the order of the judge below and to
substitute for it the order which it considers the judge ought to have made.
Indeed, by virtue of O 59 r 10(3), it can go beyond what would have been open
to the judge and make "such further or other order as the case may require".
Notes
Powell v Streatham Manor Nursing Home [1935] AC 243 at 263 et seq.
Attorney-General v Birmingham Tame & Rea District Drainage Board [1912] AC 788 at 801-802.
At 1491.
New Brunswick Ry Co v British and French Trust Corp [1939] AC 1 at 32-33.
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