| EVIDENCE — Admissibility — Improperly obtained evidence — Fresh evidence — Proper approach to conflicting public interests as to respect for private life and fair trial — Human Rights Act 1998, Sch 1, Pt I, arts 6, 8
Lifely v Lifely [2008] EWCA Civ 904; [2008] WLR (D) 280
CA: Ward, Dyson and Lloyd LJJ: 30 July 2008
Where fresh evidence had arguably been wrongfully obtained considerations beyond the classical requirements under the Ladd v Marshall test might be appropriate when the court was considering whether such evidence should be admitted.
The Court of Appeal so held when allowing the appeal of the claimant, Andrew Lifely, from a decision of Judge Weeks QC, sitting as a Judge of the Chancery Division located in Bristol on 7 September 2006, determining the terms on which the claimant and the defendant, Nicholas Lifely, were in partnership and ordering accounts to be taken. The grounds of appeal were founded on fresh evidence which the claimant sought permission to adduce and which was contained in diaries discovered by the claimant after the hearing before the judge.
WARD LJ said that the court had taken the unusual step of hearing live evidence; and on the facts the three conditions in Ladd v Marshall [1954] 1 WLR 1489 were satisfied so that the fresh evidence would in principle be admitted subject to two further considerations as to privacy and delay. The first consideration: the defendant had submitted that the evidence should be excluded because the claimant had had no business reading it, and by taking it he had committed the tort of trespass to goods, where he should have sent the evidence to the defendant or told him he could collect it. Accepting for the purpose of this argument that there was at least a good arguable claim for misuse of private information which was protected by art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the question was whether to admit such evidence which had been wrongfully obtained. Even before enactment of the Human Rights Act 1998 the court had had a discretion whether to admit evidence which had been wrongfully obtained: see Marcel v Comr of Police of the Metropolis [1992] Ch 225, 265, per Sir Christopher Slade. Moreover, a similar question arose in Jones v Warwick University [2003] 1 WLR 954, where an inquiry agent had trespassed in the home of a claimant, and the court referred to the need to give effect to what were two conflicting public interests. Applying, further, the approach in Campbell v MGN Ltd [2004] 2 AC 457, it was necessary to balance the right to respect for private life under art 8 and, here, the right to a fair trial under art 6; and neither article had as such precedence over the other: see In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593, para 17, per Lord Slynn of Hadley. On this issue, the conclusion was that it would be wholly disproportionate to exclude the fresh evidence. The second consideration: delay was not a relevant matter in Ladd v Marshall but there was no reason why it should not be brought into account in exercising the court’s discretion whether to admit fresh evidence since it was a material factor. However, the facts did not justify precluding relief. Accordingly, permission was granted to adduce the fresh evidence and the matter would be remitted for a rehearing.
DYSON and LLOYD LJJ agreed.
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