18 September 2015Print This Post

Court refuses bid to reconsider ruling because of missing page in bundle

Get your paperwork straight before trial

Get your paperwork straight before trial

A party that accidentally omitted an important page from its trial bundle has failed in its attempt to persuade the judge to reconsider his ruling.

The claimant in Absolute Lofts as West London Ltd v Artisan Home Improvements Ltd & Anor (No2) [2015] EWHC 2632 (IPEC) made the application the day after His Honour Judge Hacon handed down his decision.

Absolute Lofts had won £300 in compensatory damages, and £6,000 under a European directive on the enforcement of intellectual property rights, over the misuse of some of the photographs on its website by the defendant.

The claimant argued that the missing page went to the level of the compensatory damages.

HHJ Hacon rejected the claimant’s submission that it was not requesting to introduce new evidence. “The application requires me to consider evidence which was not before the court at trial,” he said. “Consequently while the principles set out in Ladd v Marshall [1954] 1 WLR 1489 are not decisive, they are highly relevant.”

These are that first, it must be shown that the evidence could not have been obtained without reasonable diligence for use at the trial; second, the evidence would need to have an important influence on the case; and third, it must be credible.

The judge said Absolute Lofts’ main difficulty was the first of these requirements, as the page was not included because of oversight.

“I take the view that this engages the overriding principle of the Civil Procedure Rules in an important way,” he said.

“It is essential to the saving of expense, ensuring that a case is dealt with expeditiously and fairly and allotting an appropriate share of the court’s resources to a case that the parties bring all relevant evidence before the court at the trial.

“Where a party fails to do that and has no reasonable excuse for that failure, it will have to overcome a high barrier to satisfy the court that the circumstances are sufficiently unusual to permit the proceedings to be reopened with fresh evidence after judgment has been handed down.”

HHJ Hacon said that if new evidence “unarguably puts the issues considered in the judgment into a bright and truly compelling new light, that might be enough to tilt the exercise of the court’s discretion”. But that was not the case here.

He concluded: “I am not satisfied that the circumstances are such that Absolute Lofts is entitled to a reconsideration of my earlier judgment. I decline to do so.”

By Neil Rose


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