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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ladd v Marshall [1954] EWCA Civ 1 (29 November 1954) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1954/1.html Cite as: [1954] EWCA Civ 1, [1954] 1 WLR 1489, [1954] 3 All ER 745, [1954] WLR 1489 |
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COURT OF APPEAL.
B e f o r e :
LORD JUSTICE HOBSON
and
LORD JUSTICE PARKER
____________________
LADD |
||
-v- |
||
MARSHALL |
____________________
Room 392, Royal Courts of Justice, and 2, New Square, Lincoln's Inn, London, WC. 2.)
appeared on behalf of the Appellant (Plaintiff).
MR EWEN MONTAGU, Q.C. and MR H.W. SABIN (instructed by Messrs White & Catlin, Feltham, Middlesex)
appeared on behalf of the Respondent (Defendant).
____________________
Crown Copyright ©
LORD JUSTICE DENNING: This is a most unusual case. In the year 1952 Mr Marshall owned a bungalow in Ashgrove Road, Ashford, Middlesex, with a pig holding attached to it. It was a new bungalow built under licence and the Local Authority had put a, condition in the licence that if it were resold the limit of price was some £l,500. Mr Marshall determined to offer the bungalow and land for sale. He put it into the hands of agents, who issued Particulars offering it for sale with vacant possession at the figure of £3,600 freehold. One of the people who became interested in this property was Mr James William Ladd. He went to see it. He negotiated with Mr Marshall for the purchase of it. Mr Marshall in the course of the negotiations told him that he would sell it with the addition of two plots of ground. He further told Mr Ladd that the price was controlled at £2,500. His solicitor had told him so. I suppose that was because the licence restricted the bungalow to £l,500 and, by throwing in the two additional plots, the price might be got to £2,500, but no more. At the beginning of April, 1952, a document was drawn up and signed in which the property was said to be sold for £2,500 freehold and £50 deposit paid. A twopenny stamp was put on it and signed by Mr Marshall. The document was drawn up by Mrs Ladd and was copied by Mrs Marshall at a meeting in the Marshalls' bungalow. The matter did not, however, go through, because on the 11th Jane, 1952, Mr Marshall's solicitors wrote to Mr Ladd's solicitors saying:
"We have to advise you that our client has instructed us that he does not wish to proceed with the sale of the above business to your client".
About a month later Mr Ladd went to the police and told them that he had paid £1,000 to Mr Marshall as part of the deal and he wanted the £l,000 back and Mr Marshall would not give it to him. Now he has brought this action for the return of the £1,000. He says that at the meeting in April when the document of sale was signed, he paid Mr Marshall an extra sum of £1,000 in notes without anything being put into writing about it. It was paid "under the table" or "under the counter", as the saying is. The reason was because, although the controlled price was £2,500, Mr Marshall still wanted to get the price of £3,600 which he originally asked, or as near as may be. Therefore, he (Mr Ladd) paid Mr Marshall the £1,000 for which he asked.
Mr Ladd at the hearing of the action gave evidence that he had saved up £1,000 in notes. He kept it in a tin box under his bed and on the day in question he went first to a friend of his, a man who had been partner with him, Mr Warren, and they counted out the £1,000 in Mr Warren's house. Indeed, a Miss Andrews, who was Mr Warren's secretary, was there and she helped count. It was all done up in bundles of £100 each, then tied in two lots of £500 each, and all put into a brown paper parcel and taken in a van to Mr Marshall's house. Mr Ladd and Mr Warren went with it. When they got to Mr Marshall's house the money was counted out. The £50 deposit was counted on the table but this £1,000 was counted out on the carpet and was paid over then and there. Mr Ladd said that he asked for a receipt for the £1,000, but Mr Marshall would not give one. His reason was that, as the controlled price was £2,500, if he gave a receipt for the extra £1,000, Mr Land could get it back from him afterwards. Mr Ladd said that he had already prepared a receipt, bat Mr Marshall would not sign it. He said: "My word is my bond". Mr Ladd's version was supported by two witnesses. Mr Warren, his friend, who went with him, gave evidence to the sane effect as he and Miss Andrews, the secretary, gave evidence that she was present when the money was counted out in Mr Warren's house. Moreover, they all gave evidence of an earlier occasion in the course of the negotiations when Mr Marshall first asked for the £l,000. Those three witnesses were cross-examined and the Judge seems not to have gained a good impression of them.
Then Counsel for Mr Ladd called into the witness box Mrs Marshall, the wife of the Defendant, Mr Marshall. The hearing was on the 12th March of this year. On the previous day Mrs Marshall had filed a petition for divorce against her husband on the ground of his adultery. She was called into the witness box and this is what she said:
''Excuse me, my Lord, I do not wish to give evidence for or against my husband".
"I was called into the room".
"(Q) At that time was there a parcel in the room?
(A) I cannot remember.
(Q) Did you see any money pass on that occasion? Was £l,000 counted out?
(A) I do not remember".
"You must remember",
and the Judge said:
"''You cannot cross-examine your own witness. You are not to say, 'You must remember'",
and the Judge did not allow any cross-examination. So she did not help the case at all.
The only witness called for the defence was Mr Marshall himself, who denied that he had received the A1,000 at all.
The Judge then gave a very short Judgment in these words:
"I strongly suspect that taking advantage of the difference between the £3,600 in the first set of particulars, and £2,000, at which the contract was actually entered into, the Plaintiff and Mr Warren endeavoured to try and get £l,100 or £1,000 out of Mr Marshall, but I am not bound to pronounce any findings about that. This is a pure question of fact, and the decision of the case rests on whether or not the Plaintiff and the witnesses whom he has called have persuaded me that it is true that £1,000 was paid to the Defendant. I am not so persuaded. I prefer on every point where the evidence is in conflict the evidence of the Defendant to the evidence of the Plaintiff and his witnesses. There will therefore be judgment for the Defendant with costs".
Inasmuch as the first sentence in that Judgment was not altogether clear we were invited by Counsel on both sides to see the Judge and ask him exactly what he meant. He told us that what he meant was that he suspected that, after Mr Marshall refused to go on with the sale on the 11th June, the Plaintiff and Mr Darren put their heads together to try and get £1,000 or £l,100 out of Mr Marshall and that Hiss Andrews, the secretary, was implicated in it. This makes the case a very serious one for all these persons.
No appeal was entered by Mr Ladd within the six weeks allowed for doing so. Then on 6th May, 1954, Mrs Marshall obtained a decree nisi of divorce from her husband: whereupon she apparently felt free of him and she made a statement to her solicitors (who were also, as it happened, Mr Ladd's solicitors) in which she said that the evidence she had given at the hearing before Mr Justice Glyn-Jones was false. She said that she did remember what happened at the meeting of April, 1952: that she was there when the money was counted out; and that the £1,000 was counted out and handed over by Mr Ladd to her husband, Mr Marshall. In those circumstances, an application was made on Mr Ladd's behalf to this Court asking for the time for appeal to be extended. It was extended: and this appeal was accordingly entered by Mr Ladd against the decision of Mr Justice Glyn-Jones and Mr Ladd has also applied for leave to adduce further evidence by Mrs Marshall so that she can say what she now says is the truth, namely, that she was present when the £l,000 was handed over and that it was in fact banded over. She has made an affidavit in which she says that at the trial she was afraid of telling the truth because she was still living in her husband's house. She says he would almost certainly have resorted to physical violence and. that she was in fear not only of him but other members of the family and it was for that reason that she did not tell the truth. There was an affidavit by a notice sergeant as to another interview and by the solicitor, saying that he could not have got this evidence before.
Mr Money, arguing the case for Mr Ladd, has put it on two grounds. First, he says the fresh evidence by Mrs Marshall is so important that it should be received by this Court or a new trial had so that the matter can be fully investigated. Secondly, he says that in all the circumstances the trial was unsatisfactory.
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 toll the truth on the second occasion. 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 and it would not be necessary to resort to an action to set aside the judgment on the ground of fraud. Again, if it was proved that the witness made a mistake on a most important matter and wished to put it right, and the circumstances were so well explained that his fresh evidence was presumably to be believed, then again there would be ground for a new trial, see Richardson v. Fisher, reported in 1 Bingham at page 145. But this is not a case of bribery or coercion, nor of a mistake. It seems to me that Mrs Marshall is not a person who in the new situation is personally to be believed. She endeavoured to show that she was coerced by her husband, but on reading through the affidavits on both sides, it seems to me that the suggestion of coercion comes to nothing. She does not seem to have been in fear of her husband at all. I am afraid it is simply a case where a witness who has told a lie at the first hearing now wants to say something different. It would be contrary to all principle for that to be the ground for a new trial.
Then it is said that the trial was unsatisfactory. Mr Beney pointed out that Miss Andrews was not cross-examined as to credit. All that was said against her was that she was the secretary to Mr Warren and that she lived in Mr Warren's house. But nevertheless the Judge might disbelieve her because of the bad impression she made on him. Next it was said that the Judge should have allowed Mrs Marshall to have been cross-examined as a hostile witness. But that was a matter for the Judge's discretion. If Counsel had material to show she was hostile, he could have put it before the Judge and made a request that he should be allowed to cross-examine her. He did not make this application, probably because he had no material. Finally it was said that the Judge gave a very short Judgment, but that is not a serious defect. No doubt he thought there was nothing more that needed to be said.
I would only add this: Mr Ladd on his own showing paid this £1,000 "under the counter" in order to get round the law which controlled the price of the premises. He paid the £1,000, not out of any banking account, but in notes which cannot be traced: and he paid it without obtaining a receipt. I cannot think of anything more foolish. It is for him to satisfy the trial Judge that the £1,000 was paid: and, if he and his witnesses do not convince the Judge that it was, then he has only himself to thank: for he obviously ought to have got a receipt. I do not mean for myself to suggest that there was any wicked conspiracy between him and his witnesses. All I say is that he did not prove his case to the satisfaction of the trial Judge, and that is the end of the matter. In my judgment, this appeal should be dismissed and the motion should be dismissed also.
"This is a pure question of fact, and the decision of the case rests on whether or not the Plaintiff and the witnesses whom he has called have persuaded me that it is true that £1,000 was paid to the Defendant. I am not so persuaded. I prefer on every point where the evidence is in conflict the evidence of the Defendant to the evidence of the Plaintiff and his witnesses. There will therefore be judgment for the Defendant with costs".
"Did you see any money pass on that occasion or £1,000 counted out?",
she answered
"I do not remember".
That brings me to the matter which really brought this appeal into existence, that is the fact that the wife of the Defendant, the reluctant witness who said she did not remember anything, has now said very shortly after the trial, having divorced her husband, that she told lies at the trial and she now wants to tell the truth, the truth being, as she says, that she was present when this £1,000 was handed over. I think it is somewhat bold to ask this Court to allow fresh evidence to be adduced in circumstances of that kind, because Mr Beney, as one would expect, fairly recognised that here is a woman who, on her own showing, has told lies, and if there was a hearing of her evidence by this Court or at a fresh trial at which her evidence could be heard again she could never be better than a discredited witness on whom it would be very difficult for any Court to place any reliance. But Mr Beney says that Order 53, Rule 4, is wide in its terms and that there is a complete discretion in this Court which ought not to be fettered to receive further evidence if the justice of the case requires it. But that discretion has been always exercised in the light of the maxim interest reipublicae ut sit finis litium. This seems to me to be particularly a case where one might envisage no end to litigation if people who had given evidence were allowed to come again and say "I told lies last time. I want to tell the truth now". The principles on which further evidence is admitted have been recently discussed by this Court in Braddock v. Tillotsons Newspapers Limited, reported in 1949, 2 All England Reports, page 306. I would only make a brief reference to the well-known case of Brown v. Dean (1910 Appeal Cases at page 375; where the house of Lords affirmed a decision of the Court of Appeal and gave guidance on this topic. The passage which is often discussed and may be said perhaps to have been modified in part is the portion of the speech of Lord Loreburn where he says:
"When a litigant has obtained a judgment in a court of justice, whether it be a county court or one of the High Courts, he is by law entitled not to be deprived of that judgment without very solid grounds; and where (as in this case) the ground is the alleged discovery of new evidence, it must at least be such as is presumably to be believed, and if believed would be conclusive".
LORD JUSTICE PARKER: I agree. I would only add one word on the application for leave to call further evidence. The further evidence which it is desired to call in this case is the evidence of one of the Plaintiff's witnesses, Mrs Marshall, who, it is said, will now say that what she said at the trial was a lie and that she is now prepared to tell the truth. The circumstances in which the Court on such an application will grant leave to adduce that further evidence must be very, very rare, for the very good reason that such evidence on the face of it does not comply with the test as laid down by Lord Loreburn in Brown v. Dean, in 1910 Appeal Cases, page 373, where he said that new evidence must at least be "such as is presumably to be believed". It may be that if it could be shown that the witness told a lie originally because he or she had been bribed or because he or she had been coerced, nevertheless it could be said in those circumstances that her evidence was such as is presumably to be believed. But in this case there is no suggestion that Mr Marshall bribed his wife: there is no suggestion that he coerced his wife to give the evidence which she did give at the trial. All that is said is that Mrs Marshall, whose relations with her husband were strained, was afraid of his hitting her and afraid of physical violence. As regards that, the one thing which the further affidavits clearly show is that this woman was nothing like as afraid of her husband as she has made out, and she has utterly failed to satisfy me that the reason she gave her evidence as she did originally was through fear of her husband. As she has failed to prove any such ground, it is impossible, in my view, for any Court to say that her evidence could be credible. In those circumstances, I would refuse the application and dismiss the appeal.
(Appeal dismissed with costs).