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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Sun Bank Plc v Wootten & Anor [2004] EWCA Civ 1423 (15 October 2004) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2004/1423.html Cite as: [2004] EWCA Civ 1423

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MEDWAY COUNTY COURT
(MR RECORDER SPON-SMITH)

		Royal Courts of Justice Strand London, WC2
		15th October 2004

1. LORD JUSTICE BUXTON: This is an appeal from a decision of Mr Recorder Spon-Smith in the Medway County Court. Judgment was handed down on 9th February 2004, the hearing having taken place in the previous December. That part of the chronology has some peripheral reference to the issues before this court. I should say straight away that no criticism is made in this appeal of the judgment of the Learned Recorder on the evidence as it stood before him. It is right that that is so, because I take the liberty of saying that the Recorder dealt with the case clearly and concisely and in a way that could not possibly be challenged.
2. The appeal turns on a question of fresh evidence and is effectively an application that the court should admit fresh evidence and, on the basis of that order, a re-trial. In order to understand why the fresh evidence matters and its relation to the previous proceedings, it is necessary to give some account of the trial and of the findings made by the judge; even though, as I say, those in themselves are not an issue.
3. The case was concerned with a claim for possession by the claimants, now called Sun Bank Plc, although they previously had a different name or incarnation, for possession of premises at Rochester Road in Burham, Near Rochester, Kent. The first and second defendants were Mr Roger Patrick Wootten and his then, and as I believe still current, wife Mrs Mary Ellen Wootten, the joint legal owners of the property. The claim for possession was founded on a legal charge dated 15th March 1990 ("the mortgage"). There was no challenge that the mortgage had been executed by Mr Wootten. It purported to have been executed by Mrs Wootten also, although the issue in the trial before the judge, and before us, was whether indeed she had so signed the mortgage.
4. The outstanding debt was very considerable. At the time of the trial it was nearly £200,000, and is no doubt more at the present date, there being a very heavy monthly interest charge and very few payments made either towards the interest or to reduce the capital. There was no doubt that the bank was entitled to possession, subject to what turned out to be the one issue that was live at the trial and certainly the one issue that was live before us, as to whether Mrs Wootten's apparent signature on the mortgage was in fact a forgery.
5. Mr and Mrs Wootten were married in 1970. There were no children of that marriage. A lady called Kim Wilkinson, who will feature in a later part of the narrative, is the daughter of Mrs Wootten by a previous relationship. The property with which we are concerned was purchased as the couple's matrimonial home in 1972. Unhappily, the marriage has not prospered and, according to Mrs Wootten's evidence at the trial, her husband spent progressively less and less time at the matrimonial home during the 1980s, and a final separation between them occurred in or about 1990.
6. In 1989 Mr Wootten decided to buy a property known as Munsgore Farm, in Sittingbourne in Kent. He was assisted by an independent adviser, Mr Colin Bull, who again will feature in the narrative. The purchase of that farm was achieved partly by means of a loan, with which we are not concerned, and partly by the advance that was secured by the mortgage. It should also be noted that, from 1990 to about 1993, Mr Wootten lived at Munsgore Farm not with his wife, but with a Miss Parker, a lady who is now known as Mrs Dursley, and will be so referred to when I come later to her role in the proceedings.
7. As I have said, Mrs Wootten asserts that her signature on the deed was a forgery. That was denied by Mr Wootten, because the necessary implication of Mrs Wootten's case was that, if her husband had not forged the deed, he indeed was complicit in it; and the strong suggestion appears to have been made that Mr Bull also had a role in those matters. The judge correctly directed himself that these grave charges had to be established to a degree of certainty that was commensurate with their gravity. That is a trite proposition. It is to be found most conveniently in the case of Re H (Minors) [1996] AC 563 at page 586G.
8. There were three signed documents in relation to the mortgage, including a signature on the mortgage application form. Scientific evidence was called from a well-known handwriting expert, or document examiner, a Dr Audrey Giles. She did not reach any conclusion upon which the judge found himself able to act, though her evidence to some extent, and weakly, pointed in the direction at least to the possibility that the signatures were not genuine. But the judge said this in paragraph 7 of his judgment:

"In my judgment Dr Giles' very tentative conclusions would not have been sufficient to justify a finding of forgery had they stood alone, for example if all the parties involved were now deceased. However, they do not stand alone as all the protagonists are still alive and gave evidence before me."

9. The judge reviewed the evidence of those persons, and I must again briefly state what they said and the conclusions that the judge reached, because that again is germane to the possible admission of evidence that was not available to the judge himself.
10. Mr Bull had witnessed the signature on the mortgage both of Mr and of Mrs Wootten and his evidence was that, not unsurprisingly, he did not remember the particular occasion 14 years then previously on which that had happened; but he said that he would not have signed as a witness unless he was satisfied that both parties had indeed signed the document. It was alleged on behalf of Mrs Wootten that Mr Bull was prejudiced in favour of her husband's case through friendship with him. The judge pointed out it that there was no evidence that that was so, and his finding in paragraph 8 of his judgment was that Mr Bull was a truthful witness. But, fairly, the judge said that there remained open the possibility that Mr Bull, while not in any way lying, had confused his dealings with the Woottens with another occasion involving other clients, or alternatively had managed to persuade himself that matters had been as he would have wished.
11. The judge then turned to Mrs Wootten and pointed out that Mr Bull's evidence corroborated the evidence of Mr Wootten that both the application and the mortgage had been signed by his wife. The judge said this about Mrs Wootten in paragraph 9 of his judgment:

"Making, I hope, due allowance for the fact that she is not accustomed to giving evidence in court, an experience which many people find uncomfortable and disconcerting, I am afraid that I found her to be an unreliable witness. Whether she was simply muddled, or it was a case of 'the wish is father to the thought', or whether Mrs Wootten was giving deliberately false evidence, is not an issue which it is essential for me to address, although I should record that Mrs Wootten struck me as neither unintelligent nor inarticulate."

12. The judge then supported or explained that finding as to Mrs Wootten with a fairly extensive account of, first of all, her failure to take action in respect of the forgery after she allegedly found out about it; and, secondly, extensive contradictions that he had discerned in her evidence. It is not necessary to go through those in any way, but I would venture to comment, with respect, that they do demonstrate that the judge looked at this case with considerable care, and in particular looked meticulously at the details of the evidence.
13. In paragraph 14, he summarised the matter in this way:

"I have no hesitation in saying that I prefer the evidence of Mr Bull to that of Mrs Wootten. I should add that although I have not referred to the evidence of Mr Wootten in any detail, I also prefer his evidence where it conflicts with that of Mrs Wootten on the central issues in the case."

14. The next person with whom the judge dealt, and with whom I must deal, was Miss Kim Wilkinson, whom I have already identified. Her evidence did not address the central issue of the authenticity of her mother's signature on the application and the mortgage. She came into the picture because there was in existence a deed of consent which Sun, the claimant, had required her to sign as an occupier of the mortgaged property. The document in question, the deed of consent, which plays an important role in this appeal, was not served on other parties to the case until 10th December, that is to say the day preceding the opening of the trial. An explanation was given for that, it appearing to be the case that advice was only given very late in the day that Miss Wilkinson should be called at all.
15. The purported witness to Miss Wilkinson's signature on the deed was the lady I have referred to as Mrs Dursley. In her evidence to the judge Miss Wilkinson said that she would not ever have permitted Mrs Dursley to act as a witness. It is necessary to look in some more detail at the evidence that Mrs Dursley gave at the trial, because I should say straight away that the fresh evidence that is sought to be adduced in this appeal is further evidence, not from Mrs Dursley herself, but about what she has said in relation to these transactions.
16. She made a statement in the case -- the date of which is not easy to decipher -- her first statement, where she explained that she had lived with Mr Wootten during the dates I have mentioned. There was then produced to her a copy of what was said to be a deed of consent dated 14th March 1990, between Kim Wootten and Economic Homes Limited. I say, just for caution, that Kim Wootten is of course Kim Wilkinson, Mrs Dursley perhaps misunderstanding what her name was. Then Mrs Dursley went on to say this in paragraph 3:

"I did not witness Kim Wootten's signature to that document. As far as I can recall, I have never witnessed Kim Wootten's signature. I cannot be certain that it is not my signature on the document but, if it is, it is only there through duress. On a number of occasions during the years when I was with him, Mr Wootten intimidated me into signing various documents without reading them or knowing what they were. However, I am quite sure I have never been in the same room as Kim Wootten and witnessed her signature."

17. She then made another statement on 28th July 2003 in which she said this in paragraph 38:

"The First Defendant has produced a document that shows my signature as a witness to Kim Wilkinson's signature on a deed of consent. I never witnessed Kim Wilkinson's signature. I do recall that the First Defendant once barged in to the kitchen at the farm with a document and told me to sign now using my parent's address, that he could not talk about it and that he was on his way to see Colin Bull as he was waiting. The First Defendant [Mr Wootten] was clearly having no nonsense and the paper he offered was folded over. I felt pressurised to sign and use my parent's address and I did. I could not see what I signed."

18. Mrs Dursley gave evidence at the trial and she was asked some questions about this incident of signature, principally by the Recorder at page 125 of the bundle starting at line 24:

"MR RECORDER SPON-SMITH: You say it was folded down the middle, Mrs Dursley?

A. Yes.

Q. You mean, sort of, properly folded and...?

A. Well, folded over. It was like this.

Q. And flat?

A. It was held like this to me. If I take this file. It was given to me like: 'sign that' that.

Q. Then it would have opened up when it was put down, wouldn't it?

A. No, it was given to me and held to sign.

Q. I see?

A. But I knew what the document purported to be because of what was said."

19. Then Mr Peebles, who was acting on behalf of Mr Wootten, said this:
20. "Q. And you didn't turn it over.

A. Sorry?

Q. And you didn't turn it over.

A. No. If I'd have started to question things, I would have been in trouble."

21. On the basis of all this evidence, the judge reached his conclusion in paragraph 18 of his judgment, which I think I should read in full:

"A consequence of the late service of Miss Wilkinson's statement is that no opportunity was given for the other parties to consider whether the deed should be submitted to Dr Giles for her opinion as to its authenticity. Doing the best I can, I incline to the view that Miss Wilkinson did sign the deed. It would be surprising if, the signatures of Mrs Wootten on the relevant documents being (as I have found) genuine, that Mr Wootten should have felt the need to forge his step-daughter's signature on the deed. I certainly cannot be satisfied on the necessary strong balance of probabilities that he did so. Maybe (I put it no higher) Mr Wootten did for some reason induce Mrs Dursley to sign as the witness to a signature which she had not in fact witnessed. I accept that Mrs Dursley, whilst denying any personal malice against Mr Wootten, clearly felt extremely strongly about his conduct towards her during and since their relationship, but I am in no position to judge whether or not those strong feelings are justified. Even if Mrs Dursley did sign in the absence of Miss Wilkinson and without having seen her write her signature, it does not follow that the purported signature of Miss Wilkinson was a forgery. Nor, even if it was, does that to my mind undermine the persuasive evidence upon which I have concluded that Mrs Wootten did sign the application and the mortgage."

22. He therefore dismissed what was, in effect, Mrs Wootten's defence and granted the applicant an order for possession.
23. Mrs Wootten was represented at the trial by counsel and solicitors and they continued to act for her at least until the middle of March 2004. At some stage after that she parted company with them, and comparatively recently, that is to say in the last ten days, has had the benefit of pro bono representation by a leading firm of solicitors and by Mr Sefton of counsel who has appeared today, arranged as we understand it through the Bar Pro Bono Unit. We are of course grateful to them for giving their time and attention to this matter.
24. The grounds of appeal were filed on 1st March 2004. The grounds of appeal, which appear to have been written by Mrs Wootten, though promoted by her then solicitors, gave this as the ground of appeal:

"Subsequent to the final hearing of this matter, Alison Dursley admitted to the second defendant that she in fact signed the mortgage deed in the second defendant's name. The signing of the mortgage deed was central to the second defendant's defence to the possession proceedings."

25. There was also an application which does appear to have been entirely formulated by the then solicitors, dated 20th February 2004, for various orders in this court, including permission to appeal, a stay of execution and various other matters. The evidence that was said to be relied on in support of that application was as follows. One, an express admission made by Alison Dursley on 13th December 2003 that she signed the mortgage deed in relation to the property. Two, an express admission made by Alison Dursley on 10th February 2004 and 12th February 2004 that she signed the deed of consent in relation to the property in the presence of Colin Bull.
26. That application was not supported by any evidence in the form of an affidavit by Mrs Wootten, let alone by Mrs Dursley. At that time, there appeared to be no record of the admissions that Mrs Dursley had made. We now know that there were a considerable number of exchanges between Mrs Wootten and Mrs Dursley during and after the currency of the proceedings. In this appeal, Mrs Wootten now exhibits, to an affidavit sworn only on 8th October 2004, extensive transcripts of telephone conversations that she had tape recorded between herself and Mrs Dursley on 10th and 12th February 2004, and also notes that she had taken of other telephone conversations.
27. The first, and I have to say very unsatisfactory, point that arises is this. In the course of those conversations on 10th February 2004 Mrs Dursley told Mrs Wootten that the allegation that she had made, allegedly on 13th December 2003, that she had signed the mortgage deed, was in fact untrue. It is perhaps not necessary to set out the conversation; it is to be found at pages 261 and 262 of our bundle, and she emphasised there -- despite the fact that Mrs Wootten put to her that she previously said that she had signed the mortgage deed -- that it was not the mortgage deed that she had signed, but the deed of consent.
28. Today Mr Sefton has very properly told us that enquiries that his solicitors have made with the solicitors who acted for Mrs Wootten at the trial have uncovered at least some possibility that Mrs Dursley also told Mrs Wootten that the allegation about the mortgage deed was untrue shortly before the trial, that is to say very shortly after she allegedly made the original allegation. We have been shown a note with regard to that. It may or may not represent Mrs Dursley withdrawing her statement. It may merely represent Mrs Dursley saying that she was not prepared to give evidence about that statement at the trial or at any trial.
29. Further than that, on that point, it is not at the moment possible to go. It is unfortunate that there was no opportunity, or no opportunity was taken, to investigate that matter further. The important point, and one that is undoubted, is this. There is no doubt at all that Mrs Dursley withdrew her allegation about signing the mortgage deed on 10th February 2004, because she so said on that day in the telephone conversation that Mrs Wootten recorded.
30. The implication is, I fear, inescapable that Mrs Wootten knew three weeks before the grounds of appeal were filed, and ten days before the application notice was filed, that the statement of Mrs Dursley upon which the grounds of appeal were solely based and upon which the application notice was very strongly based had in fact been withdrawn. What, of course, the truth of the matter was remains to some extent obscure. But it was quite wrong, and I have to say this advisedly, for the appeal to be advanced apparently on the basis of a statement that was uncontroverted, or at least that the maker stood by.
31. There has been no explanation of that and I am not prepared to assume that Mrs Wootten conveyed Mrs Dursley's change of heart, or mind, or qualification, to her then legal advisers. If, of course, she did, and they had pursued the appeal, very grave questions indeed would arise. I do not make that assumption. Nonetheless, the appeal was pursued on a basis that was at best misleading. As I say, we have had no explanation of that. Had the single judge who gave permission for this appeal to be brought known of what Mrs Dursley had said on 10th February, it is almost certain that this matter would have taken a different course.
32. Although at one stage Mr Sefton was, at least in his skeleton argument, anxious to keep the issue in relation to the mortgage deed and the fresh evidence in relation to it alive, before us he very properly accepted that, in the light of the matters that I have set out, he could not do so. Quite apart from any question of propriety, the fresh evidence as to that matter is completely contradictory. It is impossible to tell now what Mrs Dursley's position is. I therefore say no more about the grounds based upon the alleged forgery of the mortgage deed.
33. I turn to the matter of the deed of consent. There, as we have seen in the recorded phone conversation, Mrs Dursley had said that it was not the mortgage deed but the deed of consent which she had signed. She explained that to Mrs Wootten in passages that have been transcribed. I would read some part of it. It will be appreciated that, as it is an informal telephone conversation, the matter is set out in a somewhat unclear way, but the substance of it is clear enough. At page 288 of our transcripts Mrs Wootten says:

"W: I mean we all know that no way did you witness Kim's signature. No way did Kim sign it.

"AD: No I know. I told you that.

"W: We all know that but.

"AD: The see thing is Mary if I stand up and I say that the signature of Kim's is likely to be mine who will do the time for it? I'll get you your house back right it won't do him any harm at all.

"W: Do you know who signed it?

"AD: I told you, I told you.

"W: Who was that?

"AD: Me and Colin Bull stood right behind me.

"W: What Kim's signature?

"AD: Yes on the Deed of Consent. That is why it is in a blue thick deliberate pen."

34. She said that again later on in this transcript. I should also mention a matter to which I will have to return, that there appears also to be a possibility that this allegation as well was conveyed to Mrs Wootten at the time of, or before, the trial.
35. I would readily accept that if that evidence, and that evidence alone, had been given at the trial about the deed of consent, it would, or at least might, have had an effect on the outcome. It is of course not directly about the mortgage, but it casts, if true, very serious doubt indeed on the probity not only of Mr Wootten but also of Mr Bull his independent witness. We have seen how, in paragraph 18 of his judgment, the learned judge dealt with the converse case, that he was unwilling to conclude that the deed of consent had been forged in the light of the fact that he was satisfied that the mortgage had not been forged and that Mrs Wootten had indeed signed that. This is, therefore, the evidence that is sought to be adduced before this court and which is said to be the basis of an application for a new trial.
36. We immediately turn to the very well-known authority of Ladd v Marshall [1954] 1 WLR 1489. The Ladd v Marshall rules are conveniently summarised in the first paragraph of the head note. For the record:

"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."

37. Mr Sefton has pointed out that, since the introduction of the CPR, more recent authority has suggested that the previous view of Ladd v Marshall, that it laid down strict rules and indeed produced what in one authority was called a "straitjacket", was no longer the case. He took us to the decision of this court in Hertfordshire Investments v Bubb [2000] 1 WLR 2318 and to the judgment of Hale LJ, as she then was, more particularly at page 2325. Hale LJ quoted what was said by Morritt LJ, as he then was, in Banks v Cox (unreported) 17th July 2000, when Morritt LJ said that the rules in Ladd v Marshall remained relevant:

"'...not as rules but as matters which must necessarily be considered in an exercise of the discretion whether or not to permit an appellant to rely on evidence not before the court below.'"

38. In the light of that, Hale LJ pointed out that the trial judge in the Hertfordshire case had been wrong to think that, under the CPR, the exercise was simply one of balance without giving particular weight to the Ladd v Marshall principles. She said this at page 2325, letter H, having set out the authority I have referred to and various other authorities:

"It follows from all of this that it cannot be a simple balancing exercise as the judge in this case seemed to think. He had to approach it on the basis that strong grounds were required. The Ladd v Marshall criteria are principles rather than rules but, nevertheless, they should be looked at with considerable care..."

39. I would respectfully adopt that approach; and, indeed, I am bound by it.
40. The proper approach is to start from Ladd v Marshall and see whether any appropriate easing of the strong burden placed upon an applicant by Ladd v Marshall is available in the circumstances of a particular case.
41. The following considerations are relevant in this case. First, the evidence it is sought to be adduced, that is to say Mrs Dursley's account of what happened over the deed of consent, is inconsistent with the evidence that she gave at the trial, where she gave an entirely different account of her connection with the deed of consent. She did not merely omit to say that she had signed Miss Wilkinson's signature, she said that she had merely witnessed something or other on the assumption that it was indeed already Miss Wilkinson's signature.
42. Denning LJ said this in Ladd v Marshall at page 1491 in relation to the facts of that case:

"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."

43. In this case, there is no explanation of Mrs Dursley's change of position and of why she gave evidence at the first trial that is now suggested, at least by reference to informal statements of hers, to have been untrue. Mr Sefton said that we could infer that she had a fear of being prosecuted for forgery, a crime which undoubtedly she now appears to be describing. It is wholly unsatisfactory, when the court is asked to admit, for the purpose of trying the whole case again, evidence that is different from that which the very witness had given at the trial, to have to proceed by inference or supposition. That may be Mrs Dursley's motive or it may not. We simply do not know. The way in which this has to be explicated is by Mrs Dursley herself explaining why she gave the original evidence, and why she now wishes to resile from it. That is something that Mrs Dursley is not prepared to do.
44. Secondly, the material before us certainly does show that Mrs Dursley is alive to the possibilities of being prosecuted at least for something. That is the reason that she gave in her conversations with Mrs Wootten for not being prepared to give this evidence at trial. She said this at page 288 and 289 of our transcripts, having explained that she had written Kim's signature:

"AD: Yes but if I say that...I'm not doing that because if I do, do that all that happens is that is I do the time and I'm not prepared to do that for him and it won't save your house anyway."

45. And then later on:

"AD: Well I'm not doing the time for him. So he can walk away. I'm sorry but I'm not."

46. Mrs Wootten herself confirmed that that was the position of Mrs Dursley. She swore an affidavit in this appeal on 8th October, mainly directed at exhibiting the tapes to which I have referred and, as I have said, not giving the explanation that one might expect about the evidence as to the mortgage deeds. She said this at paragraph 8.1 of that affidavit:

"I have asked Mrs Dursley to help me by giving further evidence for these Appeal proceedings. She has refused to assist saying 'I can't do it Mary, sorry'. Her husband has also told me that 'she [AD] is not being dragged back into it she has done all she can for you'."

47. That demonstrates that this case is not even a case as strong as that which Lord Denning referred to in Ladd v Marshall. He said, after the passage that I have already read:

"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 trial..."

48. He had previously described the witness in that case as somebody who had said that they had not told, but now wanted to tell, the truth. But Mrs Dursley's position is not that she wants to tell the truth, but that she is not prepared to give evidence about what she now says is the truth. This would create, it seems to me, an impossible practical dilemma, even if otherwise one was minded to grant a re-trial.
49. We explored with Mr Sefton what might happen at a re-trial if Mrs Dursley maintained her present position; and we have seen nothing to suggest that she will not maintain it. He suggested that the tapes of her conversations with Mrs Wootten, or Mrs Wootten's account of those conversations, might be adduced as hearsay evidence. Speaking for myself, I see little reason why a judge should permit such evidence to be given or, if it were given, place any weight upon it. It is evidence from a lady who could come to court but will not do so and who has, in respect of other claims that she has made subsequently, or apparently subsequently, said that they are not in fact correct. The unreliability of this evidence stands out.
50. Secondly, could she be forced to testify? That is a theoretical possibility, but one that is not likely, in my judgement, to lead to elucidation of the truth. That, in any event, seems to me therefore to be a conclusive reason why this court in any event should not exercise its discretion, even if it were otherwise persuaded in, or in the context of, the Ladd v Marshall criteria. I have already explained that the first of those criteria does not seem to me to be fulfilled.
51. The third criterion is whether the evidence could have been obtained with reasonable diligence for use at the trial. In his submissions to us this morning Mr Sefton again properly told us that very recent investigations have unearthed an attendance note of the previous solicitors that may suggest that Mrs Wootten heard the allegation from Mrs Dursley before the trial. We know nothing from Mrs Wootten as to whether or not that is the case. If that is so, and one was to act on that possibility, it seems to me that that would be fatal to the induction of this evidence under the first Ladd v Marshall principle. It also raises serious questions as to why the evidence was given in the form it was, or why the case was presented in the form it was, if these exchanges were before the trial.
52. Mr Sefton sought to deal with that difficulty by saying that the fresh evidence was in fact the tape recording, and that had only become available on 12th February. I am afraid I cannot accept that. The evidence that we are concerned with is the statement made by Mrs Dursley. It happens now to be on tape, as opposed to being written down or in Mrs Wootten's head, but the way in which the statement is recorded is not itself the evidence. The evidence is the statement itself.
53. I, for my part, however, would not act on the assumption that such a statement was made before the trial. The whole history is obscure, it has not been investigated, and it is fair to say that, in the extracts that I have read from the exchanges between Mrs Wootten and Mrs Dursley in February, Mrs Wootten appears, at least on the face of the written record, to be surprised at being told by Mrs Dursley about the deed of consent. But nonetheless, I do consider that this is evidence that could have been obtained with reasonable diligence for use at the trial. Mrs Dursley was Mrs Wootten's own witness. She, Mrs Dursley, chose for whatever reason not to give this evidence. Indeed she went further, she said something that contradicted it. Even if Mrs Wootten and her solicitors did not know that that was so, it is still the case that the evidence was available, and was not given because of a deliberate decision by the person whose evidence it is now sought to adduce.
54. Fourthly, the second-hand nature of this evidence, the fact that Mrs Dursley does not make a statement and is not prepared to make a statement, and the general obscurity about how all these matters came about, is in itself also a reason why it would be wholly unsafe, and indeed improper, to order a re-trial on the strength of this material, even leaving aside the fact that it is inconsistent with the evidence given at the trial.
55. For all those reasons, this is simply not a Ladd v Marshall case, or a case that comes anywhere near to being a Ladd v Marshall case. Even applying the jurisprudence of Ladd v Marshall as a set of principles rather than a set of rules, and looking at the matter in the light of the CPR, this is not a case where either justice, fairness or economy merits a re-trial.
56. Finally Mr Sefton, building upon recent comment upon the Ladd v Marshall principles, suggested that there may be reasons for a re-trial in this case even if the requirements of Ladd v Marshall are not met. I do not, with respect, think that recent cases in this court go anywhere in that direction. Certainly, I think that Baroness Hale of Richmond would have been surprised to find her observations in Hertfordshire Investments v Bubb used to suggest that there was some more general latitude on the part of this court to order retrials, even in cases where the fresh evidence that was adduced for that reason did not satisfy the normal requirements.
57. Secondly, Mr Sefton said, first, that the fault for not calling the fresh evidence at the trial lay at the door of the solicitors, not at Mrs Wootten's door, and because of that, the judge had found her to be an unreliable witness and that was why she had lost the case.
58. Thirdly, it is now easier to establish the evidence because of the existence of the tape recording. Fourthly, this is a very serious case. If serious wrongdoing has taken place, as Mrs Wootten alleges, the court must be certain it reaches the right result, and, fifthly, in the balance of hardship, as he put it, the claimant is a bank, and Mrs Wootten regrettably is a lady not in her first youth who, as a result of the transactions lying behind these proceedings, is likely to lose her home.
59. None of those considerations, I fear, can cause this court, sympathetic though it might be, to divert from the normal rule in cases of this sort. The court has no general latitude, and the Civil Procedure Rules do not give it a latitude, to order a re-trial on the basis of the considerations that Mr Sefton has put forward. None of these considerations was contained in the grounds of appeal, and rightly so, because the appeal had necessarily to be based upon the fresh evidence and the rules applying to fresh evidence. On that basis, I fear that it fails. I would not allow the application and dismiss the appeal.
60. LORD JUSTICE SEDLEY: I too would like to record my appreciation of the pro bono representation which solicitors and counsel have provided for Mrs Wootten, and of the candour with which they have placed before the court the further facts which have come to light, damaging though they were to what (it has to be said) was an already weak case. The decisive fact is that, even if we were to order a re-trial, Mrs Dursley is, on the evidence before us, not going to give any fresh testimony capable of upsetting the Recorder's decision. All the evidence is that whatever she may have said to Mrs Wootten, she will not say it on oath. I agree therefore that this appeal fails.

Order: The application for permission to rely on further evidence is refused and the appeal is dismissed.