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Townsend v Achilleas

20 July 2000
The issues

Re-trial – on the grounds that fresh evidence had come to light after judgment but before perfection of the Order.

The facts

The Claimant rented from the Defendant and lost possessions in a fire on 7th January 1995. She claimed against the Landlord under Section 11 Landlord and Tenant Act 1985 and Section 4 Defective Premises Act 1972.

At the Trial the Claimant and her son gave evidence. The fire started in the son’s bedroom and expert evidence was given on the Claimant’s behalf that the electrical installations in the property were a possible cause of the fire.

Based on the son’s evidence he believed that it was most likely that the fire started in electrical distribution apparatus in a cupboard in the boy’s bedroom. The Defendant gave evidence together with his expert who accepted that it was a possibility that the fire could have started in the cupboard but did not believe that was what had happened.

One issue in the claim was whether or not the fire had been started by the Claimant’s son smoking a cigarette. The Judge decided that the fire had been caused by an electrical fault in the distribution system. He also found that the Defendant Landlord had failed to take reasonable steps to repair and keep in proper working order the equipment.

The Defendant appealed seeking to rely on fresh evidence indicating that the cause of the fire was a naked flame i.e. a cigarette in the son’s room. The evidence consisted of an affidavit sworn by a friend of the son. The Judge had refused to admit the fresh evidence at a hearing on 9th October, some months after the trial, but prior to the Order being perfected. The fresh evidence consisted of statements that the son had been a smoker, had use of throw away lighter, had boasted in the school playground about being able to claim from an insurance company, and had asked his friends if they wanted him to claim for anything because he was drawing up a list, and that the son had claimed that the cause of the fire had been a deodorant spray which had exploded in his bedroom.

The decision

1. The Judge had applied the wrong principles in deciding whether or not to admit the further evidence. A proper approach was expanded under the old rules in Ladd v Marshall. Namely:-

i) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the Trial.

ii) That the evidence was such that if given would have had an important influence of the result of the case though it need not be decisive.

iii) That the evidence as such is apparently credible although it need not be incontroversible.

The Court of Appeal doubted that there should be a distinction in approach to when the Application is made to the Trial Judge after judgment but before perfection of the Order and a similar application to the Court of Appeal. They rejected the view that fresh evidence could only be adduced in an Application to the Trial Judge in exceptional circumstances. Applying the three criteria in Ladd the Appeal would be allowed.

Permission granted to adduce the Affidavit of a witness subject to any direction as to cross-examination and to direct a re-trial of the causation issue by a different Judge.

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