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(Court of Appeal, Sir Nicholas Wall P, Thorpe and Black LJJ, 23 June 2010)
The husband alleged that he was the bare trustee of a property for his brother who, he asserted, had put up money for the purchase and renovation. There was evidence that the mortgage on the property was discharged with money advanced by the husband's sister. The husband's brother obtained leave to intervene in proceedings culminating in a TOLATA application by the brother. The district judge rejected the TOLATA claim, concluding that both brother and husband were being deliberately dishonest.
In ancillary relief proceedings the judge transferred the property to the wife outright and free from mortgage. The husband appealed to the circuit judge, and sought leave to adduce fresh evidence in the form of a detailed affidavit from the sister (who had not been called to give evidence at the hearing by either the husband or the brother). The circuit judge took a day to decide the application, during which time he heard oral evidence from the sister and allowed fresh evidence. The wife appealed to the Court of Appeal, where there was an appeal in ancillary relief from the district judge to the circuit judge.
The appeal judge's discretion (under rule 8.1(3)(b) FPR) was not strictly bound by the principles in Ladd v Marshall  1WLR 1489. However, that discretion would be exercised in favour of the admission of fresh evidence only in exceptional cases.
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