New evidence on appeal
James Medhurst | News
8 Jun 2010
It is a principle of the civil courts that new evidence can be considered in an appeal against a decision, so long as certain criteria are met, which were set out in the case of Ladd v Marshall. These criteria are that the evidence could not, with reasonable diligence, have been introduced below, that it would have had an important influence on the outcome of the case, and that it is apparently credible. It had previously been held that the Ladd v Marshall criteria will apply to appeals against Employment Tribunal decisions as well.
However, the position may have become even more restricted following the judgment of the Employment Appeal Tribunal in Adegbuji v Meteor Parking, which suggests that there is no jurisdiction for it to hear an appeal based on new evidence at all. According to President Underhill, this is because section 21 of the Employment Tribunals Act restricts appeals to points of law and so the power to admit evidence for the purposes of a factual appeal is of no relevance. The correct course for a person seeking to rely upon such evidence is to request a review from the original tribunal. Presumably, an appeal would still be available if the tribunal did not grant the review or it declined to admit fresh evidence for the purposes of the review.
As an interesting aside, there is a possibility of new evidence being admitted if there is already a point of law being appealed to which it is relevant because section 35 of the Employment Tribunals Act allows the Employment Appeal Tribunal to exercise any of the powers of the Employment Tribunal, including making findings of fact, to dispose of an appeal. The Appeal Tribunal is usually reluctant to make such findings but is permitted to do so. The power is not available, however, if no point of law is being considered. This analysis must be treated with caution because it is expressly said to be obiter and, therefore, not legally binding, no argument having been heard on the point. Nevertheless, it seems to me to be correct which means that appellants would be advised to apply for a review before trying to introduce any new evidence.