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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Lifely v Lifely [2008] EWCA Civ 904 (30 July 2008) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2008/904.html Cite as: [2008] EWCA Civ 904

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY
His Honour Judge Weeks QC (sitting as a judge of the High Court)
6BS50019

		Royal Courts of Justice Strand, London, WC2A 2LL
		30 July 2008

Lord Justice Ward:

1. No dispute can be bloodier than when the blood, thicker than water, is spilled copiously in uncompromising and uncompromised litigation between brothers in a fight over their inheritance and their farming business. When it happens, one hopes that the judgment of the court will at least bring an end to the wrangling, if not to the continuing reverberations of the fractured relationships and the wounded feelings. Here that finality was partly achieved as long ago as 7th September 2006 when His Honour Judge Weeks Q.C. sitting as a judge of the Chancery Division in Bristol determined the terms on which Andrew Lifely ("Andrew"), the claimant and applicant, and his youngest brother Nicholas Lifely ("Nicholas") were in partnership together and in consequence ordered that accounts be taken. That finality is now threatened with upset because Andrew seeks permission to appeal and to adduce fresh evidence which, if admitted, challenges Nicholas's credibility and so undermines the judgment.
2. A particular issue the judge had to resolve was the allocation of the milk quotas attached to the family farms. This is an old farming family from Herefordshire. The parties' father, David, was a very successful farmer and businessman whose hope was that his three sons would follow him into farming. By 1984 he had acquired three farms, one for each son, Lane Head Farm in Eaton Bishop for Andrew, the adjoining Shepherd's Meadow Farm for Nicholas and Olive Mead Farm in Wiltshire for Simon, the middle son. Two of these farms had milk quotas totalling over 1.4 million litres attached to them and although Andrew's land was not suitable for dairy farming, he, with his father's help, was awarded a special hardship milk quota of 362,055 litres. Sadly David contracted cancer at a comparatively young age and was known to be terminally ill. He died on 18th June 1990. Then the trouble began.
3. Andrew's case, as the judge recorded it, was essentially that he had agreed with his father that the entire special hardship quota should be his on his father's death and that he and his two brothers agreed with their father that the remaining quota should be shared equally. His version was supported by the fact that after his father's death he persuaded his brothers to share any income from leasing the quota in proportions which reflected his contention.
4. As the judge observed, Nicholas changed his position more than once. It seemed before a late amendment to his defence that he accepted that all the hardship quota belonged to Andrew, but shortly before the trial it was contended in his witness statement signed in July, the month of the trial, that:

"47. About three weeks before my father's death, when he was very ill dying of cancer of the liver, there was a family discussion which took place at York House. The meeting was attended by Andrew, Simon, my father and myself. …

49. At the meeting with Andrew, Simon and myself, my father told us that he thought that the milk quota should be split equally between Simon, Andrew and myself. I understood this to be all of the quota. All of the quota was at that time registered in my name. It was either used by me for milk production at Shepherd's Meadow or traded by my father. I was unaware, at that time, that Andrew claimed any part of the quota as his. …

54. I believe that it was after the 1990 meeting and my father's death that Andrew told me various things about the milk quota. Andrew told me he had obtained 362,055 litres of milk quota as a consequence of the challenge which he had made after the introduction of the milk quota in 1984. This is the first time I knew of this. I had never been told by my father. …

57. The existence of a claim by Andrew for part of the quota was not discussed at the meeting shortly before my father's death. I only learnt of it when Andrew subsequently raised it. However, when he did raise it I did agree with him about it. At the time, I looked up to Andrew and trusted him always to treat me fairly. I believed that the family was an incredibly strong bond."

5. The judge held:

"I find that the agreement between the father and his three sons related to all the quota in whoever's name it was registered, and I will answer question 1 that both allocations of quota were held for Andrew, Nicholas and Simon in equal shares."

6. The other main issues at the trial related to whether the relationship between the brothers was, as Nicholas contended, a partnership, or, as Andrew contended, a joint venture with only the cattle herd to be shared; and if it was a partnership whether Nicholas would be paid a salary. The judge held:

"50. Ultimately, this question depends on the credibility of the two brothers. Andrew is intelligent and articulate, but there are significant differences between his evidence to this court and that presented on his behalf in the second accident claim.

51. Nicholas was more straightforward, even to the point of naivety. I do not believe he would have understood the accounts even if he had troubled to read them. His case in the correspondence and on the pleadings has changed more than once but I think this may have been due to misunderstandings between himself and his legal advisers and their analysis of an unusual arrangement.

52. Having heard them both, I prefer the evidence of Nicholas …"

7. Consequently, he ordered that an account be taken and he gave directions for the inquiry. There was further disclosure and the usual preparation for trial, including experts' reports, and inevitably the incurring of substantial expense. The date for the taking of the accounts and enquiries was fixed for 17th December to be heard by the District Judge. Then came the bombshell in the discovery, on Andrew's account of the events, of the fresh evidence.
8. Andrew gives this account of what happened. He shared Lane Head Farm with his mother who lived in York House on the farm. There was the washing/utility room adjoining the premises. He says that almost two thirds of the area was taken up with the storage of his mother's belongings, clothing, curios, and old family papers. His wife was increasingly troubled by this clutter and asked Mrs Lifely senior to clear it. She did to some extent but not completely and eventually he and his wife took it into their own hands to clear the room. They removed a great deal to the skip one weekend and then over the weekend of 3rd and 4th November 2007 they began to clear out a number of boxes which had been left there by his mother. Many of the boxes contained his grandfather's papers but one box, which had been stored under a number of other boxes and other items, contained a number of diaries of his parents from the 1970s and 1980s. Pushed in down the side of this box were two of Nicholas's diaries for 1990 and 1992. His evidence about finding this box and the two diaries of Nicholas was confirmed by his wife Vanessa.
9. Over the course of the next few days he sorted through these diaries, threw most of his parents' away because they contained no matters of real family history. When, however, he read the diary kept by Nicholas, he discovered an entry on 27th May 1990, which is three weeks and one day before his father died, which contained information which left him "in complete shock". This entry, in Nicholas's handwriting reads as follows:

"1 400 000 ltrs ÷ 3

466 000 ltrs plus Shepherd's Meadow (196) Nicholas + 1/3 of hse £70,000

Hereford ground 330 acres + 466 000 litres plus DD of purchase ground + 1/3 house

Things he has put in £50,000 Simon

quota x 30 p

Lane Head (218) 466 000 + 395 ltre plus 1/3 house

Nick £139 800 quota + £70,000 for house plus 209 000

SM 196 acres SM

Simon 466 000 quota: 139 800 plus 70 000

330 acres = £209,000

Andrew 466 000 + 395 000 = £258 300 + 70,000

Lane Head @ 218 acre £328 300

@

Farm 3 600 = 784 800 + hse

Quota 328 300

£1 113 100 £1 113 100 Andrew

+ hse

Nick SM @ 196 acres @£3 500 acre

= 686 400

quota + hse 209 000 895 400 + hse Nick

875 400

Simon 330 acres @? Say 3 000 = 990 000

+ quota 290 000 = 1 199 000

+ 2 hses

valued at 250 000

= 1 549 000"

10. He telephoned his solicitors on November 6th and explained that he had found the diary "which appeared to relate to one of the issues of the trial". At first he did not realise the full significance of the entry but on about 20th November after he had looked at the trial papers and read Nicholas's account of the meeting as set out in his witness statement, he realised that the diary entry revealed the truth and that it confirmed his belief that the special hardship milk quota were his alone.
11. Andrew says he sent a photocopy of the diary entry to his solicitors on 25th November because he wanted advice from counsel whom he was to meet in conference on 5th December for the purpose of the hearing that was fixed before the District Judge a few weeks later. As a result of advice given at that conference, his solicitors wrote to Nicholas's solicitors on 6th December, enclosing a copy of the entry, calling for an explanation, and giving notice of the intention to apply for permission to appeal. Despite an application made by Andrew to adjourn the hearing, the District Judge proceeded with his inquiries. He has handed down his judgment but we have not seen it. On 8th January 2007, Andrew applied for permission to appeal relying on the diary to challenge the judge's credibility findings on the basis of this fresh evidence.
12. Nicholas has greeted this new case with incredulity. He believes from what his mother has told him that Andrew removed "paperwork" which must have included these diaries from the farm office at Shepherd's Meadow some time in 2002. So there is a sharp conflict of fact as to how and when Andrew came into possession of these diaries.
13. The principles on which fresh evidence will be admitted are well known. CPR 52.11(2) provides as follows:

"Unless it orders otherwise, the appeal court will not receive –

(a) oral evidence; or

(b) evidence which was not before the lower court."

14. Before admitting fresh evidence the Court of Appeal, always anxious to hold a fair balance between the competing needs of finality against the right result being achieved in the litigation, will not only have regard to the overriding objective of the CPR but also to the three well-known limbs of Ladd v Marshall [1954] 1 WLR 1489 namely that, first, this fresh evidence could not have been obtained with reasonable diligence for use at the trial; secondly, if given, it would probably have had an important influence on the result of the case; and thirdly, it is apparently credible although not incontrovertible.
15. There can be little doubt that the third requirement is satisfied because Nicholas does not challenge that the entry was made by him, so the evidence is obviously credible. Although other explanations for the entry can be, and are advanced, the words on their face are inconsistent with Nicholas's case and supportive of Andrew's, and in my judgment they probably would have an important influence on the result of the case. The vital question is, therefore, whether or not this material could have been obtained with reasonable diligence for use at the trial.
16. When adjourning the applications for permission to appeal and to adduce the new evidence to be heard on notice to the respondent with the appeal to follow if the new evidence is admitted and the application allowed, Lawrence Collins L.J. observed:

"3. The respondent claims that the diary was not in fact found by the applicant but had been in his possession for some four years before the trial. He also says it does not in fact record any agreement. I am satisfied that it is arguable that two of the Ladd v Marshall conditions are fulfilled namely (1) the diary would have been likely to have had an important influence on the result; and (2) it is credible, in the sense of being a genuine document which may throw light on whether there was an agreement.

4. Whether it is, (or is arguably) new evidence, or whether the applicant had it in his possession cannot be resolved on paper, either on the paper application, or by written evidence on any adjourned hearing in court.

5. Accordingly, if the respondent maintains his position that the applicant had the diary in his possession all along, then the applicant must attend for cross-examination on the adjourned application."

17. The respondent strongly maintains his position and so we have to decide whether the first condition is satisfied. Although Mr Geoffrey Brown, counsel for Andrew, attempted to persuade us to decide this crucial issue simply on the basis of whether it was arguable or not, and although we flirted with the idea of remitting the matter to a judge of the Chancery Division for his reporting to us so that he or she would not be influenced by any findings of fact we might make, in the end we accepted the invitation of both counsel to take the unusual course of hearing the evidence. Andrew and Vanessa, his wife, were called on the applicant's side, Nicholas and his mother on the respondent's. Taking live evidence was a refreshing reminder of happy days long past for me and it served to emphasise the very great advantage a trial judge has in hearing and seeing the witnesses and noting their demeanour, all of which plays as great a part in the making of a decision as the inferences that can be drawn from the evidence itself. Demeanour played a particularly large part in the way I formed my judgment of these witnesses.
18. The hostility and bitterness, the outraged feelings and, it should also be said, the sadness on both sides was palpable. This appearance in the Court of Appeal and the judgment of this Court will have done nothing to assuage the ill-feeling. For a family once united in its hopes for the future, this is a particular tragedy.
19. If one starts with the applicant's case, two matters stand out. First, it seems to me highly improbable that the applicant would not have made use of this material at an earlier stage if he had known about it. Secondly, even when one makes every allowance for the antagonism between the parties and the hyperbole which infects all of the evidence we have heard, the evidence of the applicant and especially the evidence of Vanessa did have a ring of truth in their descriptions of clearing out the washing room ("I felt I'd had enough", said Vanessa with feeling) and their having so much to remove that it took several loads in the tractor bucket to clear the clutter and finally their finding at the bottom of a pile of boxes this dust-covered box containing old family diaries for the 1970s and 1980s "methodically packed" but with Nicholas's two diaries for 1990 and 1992 "stuck down the side". However, rather than focus too closely on the applicant's evidence, we should concentrate on the respondent's case.
20. As I have said Nicholas does not dispute that the entry was made by him but he does not admit that it was made on the day. The striking thing is that the date is entirely consistent with the meeting having taken place about 3 weeks before his father's death. Nicholas says he was "pretty certain that the diary entry in the farm diary for that day records what Andrew put to [him] on the occasion of his [Andrew's] visit to Shepherd's Meadow." This assertion is plainly inconsistent with paragraph 57 of his witness statement prepared for the trial which I have set out in paragraph 4 above where he states that the existence of a claim by Andrew to part of the quota was not discussed at the meeting and that it only emerged some time later.
21. Nicholas says he was also "clear that he did not pass any documentation to his mother which she would have stored in the utility shed at [Andrew's farm]". He stated in his evidence that the paperwork for the preparation of the farm accounts was returned by the accountants and placed in boxes in a cupboard in his office. "I also kept my diaries in the wardrobe … on a shelf at the top" and "it is possible that one or more of the diaries fell off the shelf into the boxes below." That is pure speculation. He noticed when he moved from Shepherd's Meadow in September 2004 that about 3 or 4 out of about 8 of these boxes were missing. It did not then arouse his suspicion. Why not? When engaged in the task of giving disclosure in 2006 (his list is dated 6th April 2006) he noticed that some diaries were missing and that even more boxes had disappeared from his new home. He said he remembered telling his solicitors that he thought Andrew was responsible for taking documents on both occasions but no basis is given for harbouring that suspicion. The attendance note made by the solicitor on 2nd March 2006 does not bear out his account. She made no reference to the diaries. She records only that "a large box of papers", not a number of boxes, had gone missing from his office at the Laurels, his new home, without referring to the other boxes that had been taken from Shepherd's Meadow. His explanation that he could have put two boxes in a large "Tesco" box seemed unconvincing. More damaging, however, is the fact that the note then states, "NL suspects that someone has taken them." If she had been told that he suspected Andrew, then it seems to me incredible that she would not have noted it and followed it up by calling on Andrew to produce the missing documents when he came to prepare his own list of documents. Nicholas does not refer to anything, in particular to his diaries, as documents which were no longer in his control. A running diary was clearly a relevant document and reference ought to have been made to it.
22. He gave evidence that there was a discussion with his mother before the trial when she told him she had seen Andrew and Vanessa in the office removing documentation and he has no explanation for keeping silent about this if it happened.
23. The evidence of Mrs Lifely senior is vital. Although she had refused to sign a witness statement prepared by Andrew's solicitors for the trial, she did give evidence for Nicholas yet she insisted and continues to insist that she did not wish to be and is not partisan.
24. In her witness statement she said she had "a clear recollection" of Andrew's removal of documentation in the spring or summer of 2002. She said:

"11. Andrew was removing cardboard boxes of papers from Shepherd's Meadow. I was surprised because Andrew did very little paperwork himself. I remember seeing that at least one of the boxes contained chequebooks, or more probably, chequebook stubs. Andrew appeared to be removing a great deal of paperwork.

12. I did not mention this to Nicholas at the time, or indeed to anybody else. I was loathe to do anything as between Andrew and Nicholas which would cause one to think that I was favouring the other. Also I hoped that any problems would soon be resolved and at that stage it did not look as if there would be any legal proceedings.

13. In a recent conversation which I have had with Nicholas, Nicholas told me that he believed Andrew had removed all of the relevant paperwork concerning the former farming partnership conducted by Andrew and Nicholas. Nicholas told me during the recent conversation that he believed Andrew had also taken Nicholas's diaries.

14. I cannot say that I saw any diaries in the cardboard boxes, but it is quite possible that they were there.

15. When Andrew saw me as he was removing the cardboard boxes, he looked extremely sheepish, leaving me with a clear impression that he was doing this without Nicholas's knowledge. …

17. The outhouse at Lane Head Farm belongs to Andrew. It is correct that I store certain papers there. It is where I have old documents, including archives from previous generations of the Lifely family and its farming, including my late husband's papers from the 1980s and earlier years. I do not believe that there were any other papers in the outhouse relating to the partnership between Andrew and Nicholas or any papers belonging to either of them. …

19. I can confirm that I never had Nicholas's diary in my possession and I am sure that they would have been stored at Shepherd's Meadow."

25. Under cross-examination she recalled walking her dogs to Shepherd's Meadow. At this time her sons had not fallen out with each other. Nicholas and other farm workers were in the pens nearby moving cattle. It was common for Nicholas to be in the vicinity at that time of the day. She was in the kitchen making tea for the men. Her dogs' behaviour alerted her to the fact that someone was in the room next door which was used as the farm office. She opened the door and saw Andrew and Vanessa. Andrew was carrying a box containing chequebook stubs, paying in books rolled up and sticking out of the box. He looked sheepish, mumbled that he just wanted to see something and, in his Wellington boots, went into the sitting room and out through the front door rather than leave the office through the back door. She did not see his car as she came in the front door. She said it was not far for him to walk back to his farm. She said that although her sons had a few words over a birthday party (which was in October 2002), they had "not really fallen out".
26. Mr Brown probed the inconsistencies between her witness statement and her oral evidence. The former referred to "cardboard boxes", "at least one of the boxes contained cheque books and more probably cheque book stubs" and "a great deal of paperwork". In evidence she spoke only of one box carried under his arm supported by the other hand. Seeing the paying in slips on end was a new detail. She said the box was full of these stubs and slips. Although in her witness statement she saw nothing to suggest the box contained any diaries, she added in evidence that "There was also a cardboard edge of a book like a diary, if not cardboard, something similar. It could have been a diary." Was this an afterthought and embellishment? We have seen the diary. It is size A4, about a centimetre thick. If it fell off the top shelf, it would surely have lain on the top, plainly visible, filling the area of the box according to the dimensions of the box which she demonstrated. It would have covered the cheque book stubs which she said filled the box.
27. The office was that used by the partnership, still in being at the time of the incident which, according to Mrs Lifely, took place in the spring or summer of 2002. It follows that it would not have been improper for Andrew to be there, nor for him to examine, or even take away, partnership papers so long as, if he took them away, they were returned or at least kept available. However, the whole tenor of Mrs Lifely's evidence is that Andrew behaved as if he had been caught doing something that he ought not to be doing, or at least something which he did not want to be known about. On Mrs Lifely's evidence, Nicholas was working on the farm near the office at the time, so it might seem surprising if Andrew hoped to be reasonably sure of passing unobserved.
28. To my mind, a very curious feature of the respondent's case is that although Mrs Lifely thought this behaviour by Andrew was "odd" she never mentioned it to Nicholas. If the relationship between the brothers was not then strained, why should she have been apprehensive that mention of this would have caused Andrew to think that she was favouring Nicholas? If he had been caught red-handed, he could not expect his mother's silence. By his account, Nicholas's suspicion about Andrew's removal of his documents was confirmed by his mother before the trial before His Honour Judge Weeks. She agreed that they discussed the matter before July 2006. There is no mention of this anywhere at the time, neither by him nor by his mother. Given the bad blood that then existed, I find it extraordinary that no complaint was made. Mother's explanation that she did not report the matter to Nicholas in 2002 because she hoped that her sons would settle their differences rings hollow. The troubles had not by then begun. Her further explanation that she was "sticking to what was relevant" is difficult to believe because this "odd" behaviour by Andrew having been caught doing something he should not have done, or at least appeared not to want to be known about, was a matter obviously worthy of comment. Sadly Mrs Lifely's protestation that "I am and have been impartial all along" is not borne out by her actions.
29. For me the defining moment was this: Mrs Lifely in comments very critical of Vanessa gave the distinct impression that the ironing lady found the conditions in the washing room so awful that she would not continue to work for Vanessa. At the end of her cross-examination she had to concede that the cleaning lady had in fact stayed for six years. This destroyed any confidence I could have in the accuracy of her recollection.

My findings on these disputed issues of fact

30. As I have said, the crucial question to my mind is whether or not Andrew removed the diary from the cupboard in the office at Shepherd's Meadow. The essential conflict to resolve is that between the evidence of Mrs Lifely and the indignant denials of Andrew and Vanessa. Having heard them give evidence, watched them closely, taken full account of their demeanour and made every allowance for the stress of being under cross-examination in the Court of Appeal as well as the length of time that has passed since the events of which they gave evidence, I prefer the evidence of Andrew and Vanessa and regret to say that I did not find Mrs Lifely to be reliable. I do not say she has deliberately concocted this story: on the contrary I suspect that some unusual event has grown in her imagination, something not so heinous as to have left any memory of it in the mind of Andrew and Vanessa. The evidence of Mrs Lifely is unreliable because it is riven with too many inconsistencies and her evidence of seeing something like the diary in the box was an embellishment that was incredible. I also found implausible the reasons given by Mrs Lifely and by Nicholas for not raising this incident when disclosure was being given or at the hearing before Judge Weeks, it being common ground that their suspicions had been discussed between them before the trial. Moreover, if Andrew had taken a box of documents which included this diary, it is improbable that he would not have read it and remembered that he had it. The relevant passages would have leapt off the page as vividly then as they did recently. I am, therefore, quite satisfied that Andrew could not have obtained this evidence with reasonable diligence before the trial. Accordingly the three limbs of Ladd v Marshall are satisfied. To comply with the overriding objective and to deal justly with the case, I would, subject to the next two points, admit this fresh evidence.

Should the evidence be excluded?

31. Mr Stephen Jourdan, for the respondent, submits that when Andrew found it, wherever and whenever he found it, he had no business reading it. He should have sent it to the defendant or told the defendant he could collect it. By taking it and reading it he committed the tort of trespass to goods: "… the act of handling a man's goods without his permission is prima facie tortious" per Lord Diplock in IRC v Rossminster Ltd [1980] A.C., 952, 1011. In any event any developing law protects private information contained in a diary see: Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457.
32. I am prepared to accept for the purpose of this argument that there is at least a good arguable claim for misuse of private information which is protected by Article 8 of the ECHR. However, the matter does not end there.
33. Even before the Human Rights Act 1998 was enacted, the court has had a discretion whether or not to admit evidence which was wrongfully obtained. Thus in Marcel v Commissioner of Police for the Metropolis [1992] Ch. 225, 265, Sir Christopher Slade said:

"I of course accept that there is a public interest in ensuring a proper observance by the police of the obligation of confidentiality in respect of documents seized under relevant powers. It is the existence of this obligation which, in my judgment, alone gives rise to a cause of action at the suit of the person from whom the documents were seized in cases where the police use or propose to use them otherwise than for police purposes at a time when they are still properly retaining them. I cannot, however, see why that public interest should in all cases and in all circumstances outweigh the public interest in ensuring a full and fair trial on full evidence in cases where the police have seized documents under Part II of the Act of 1984 and wish to use them for the purpose of assisting the supposed victim of an alleged crime to obtain a fair trial of a claim for damages in a civil case on full evidence. Everything must depend on the circumstances of the particular case."

34. A similar question arose in Jones v Warwick University [2003] EWCA Civ 151, [2003] 1 WLR 954 where an enquiry agent trespassed in the home of a claimant for damages for personal injuries and took a secret video of the claimant showing that she was far from as badly injured as she was asserting. The claimant attempted to exclude the video evidence. Lord Woolf C.J. in a judgment of this Court said this:

"28. That leaves the issue as to how the court should exercise its discretion in the difficult situation confronting the district judge and Judge Harris. The court must try to give effect to what are here the two conflicting public interests. The weight to be attached to each will vary according to the circumstances. The significance of the evidence will differ as will the gravity of the breach of article 8, according to the facts of the particular case. The decision will depend on all the circumstances. Here, the court cannot ignore the reality of the situation. This is not a case where the conduct of the defendant's insurers is so outrageous that the defence should be struck out. The case, therefore, has to be tried. It would be artificial and undesirable for the actual evidence, which is relevant and admissible, not to be placed before the judge who has the task of trying the case. We accept Mr Owen's submission that to exclude the use of the evidence would create a wholly undesirable situation."

For those reasons the Court held that the judge was right not to exclude the evidence.

35. The Campbell case also involved the balancing of Miss Campbell's right to respect for her private life under Article 8 and the right of freedom of expression that is enshrined in Article 10 of the Convention. Lord Hope spoke in paragraph 85 of his speech of the need for the court "to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure." For Article 10 in that case, read Article 6 in this case.
36. In Re: S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593 Lord Steyn spoke in paragraph 17 of the "ultimate balancing test":

"17. … First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each."

37. In my judgment the result of undertaking this balancing exercise is plain. Here there was no trespass or burglary. The diary was left on Andrew's property and had been there for many years. Though he can, perhaps, be criticised for reading a private diary, his conduct, like the enquiry agent in Jones was not so outrageous. If Nicholas had disclosed the existence of his diary, as strictly he ought to have done, then this information would have emerged at the trial. It was not privileged and no claim to confidentiality could then have prevailed. Now to allow him to assert it and to exclude this evidence could, I say no more than that, lead to a finding which is far removed from the truth of what happened at that family meeting three weeks before David's death. It would be wholly disproportionate to exclude this evidence and I have no hesitation whatsoever in rejecting this submission advanced on Nicholas's behalf. I add this caveat. What forensic use, if any, should be permitted of an opponent's private information when it has been obtained criminally, or unlawfully, or opportunistically, or even adventitiously gives rise to current problems – see, for example L v L 2007 EWHC 140(QB). My judgment will not be and should not be the last word on this expanding jurisprudence as it is deliberately fact centred and fact sensitive.

Has there been undue delay?

38. Delay was not a relevant matter in Ladd v Marshall but there is no reason why delay should not be brought into account in exercising the court's discretion whether or not to admit fresh evidence. It plainly is a material factor. Here, however, the delay of which complaint is made is the delay in the first place between discovery of the diary on the weekend of 3rd-4th November, collating the entry with the evidence given by Nicholas over the next three weeks or so and then waiting until the conference with counsel on 6th December. So Nicholas complains of about a month's delay. He complains particularly because during that time great steps were being taken for the preparation of the enquiry before the district judge and a good deal of expense was incurred which may, again I say no more than that, have been wasted.
39. I see the force of the argument but in my judgment this was not in all the circumstances of this case such delay as to preclude relief. He could, no doubt, have acted with greater expedition, but he was entitled to put the diary entry in its proper perspective and to take legal advice upon it. He did not dally too long.
40. The second aspect of delay is advanced because of the passage of time since this partnership was dissolved and, by this stage, the passage of time since the trial two years ago. Considerable cost has been incurred in the enquiry. All of this is most unfortunate. But the interest in achieving a fair result is predominant. Nicholas cannot protest too much: it was his diary and he should have referred to it in his list of documents.
41. The third aspect of delay is the delay in making this application for permission to appeal and to admit the fresh evidence. The application was not made until 8th January. It could have been made earlier and it should have been made earlier but it was totally reasonable for time to be taken for the full facts to be marshalled and advice to be given about appealing out of time and admitting this evidence. I have in mind the check list in CPR 3.9 on the relief from sanctions. Quite the most important factor in this case is the interest of the administration of justice. Better the right result is obtained than that a sanction be applied for the short delay for which Andrew may be responsible.

Conclusions

42. For the reasons set out above, I would extend the time to appeal; I would grant permission to appeal and permission to adduce the fresh evidence. In my judgment the appeal must be allowed and the matter remitted to a judge of the Chancery Division for rehearing.
43. The question then arises whether we should limit that rehearing to the single issue of the milk quota or extend it to all issues that were resolved by Judge Weeks. The judge's actual findings are shortly stated. He found for Nicholas on the milk quota issue. He turned to the other questions he was asked to decide and held in paragraph 50 that ultimately that too depended upon the credibility of the two brothers. Having preferred the evidence of Nicholas, he answered those questions in his favour. This diary entry will probably have an important part to play at the re-trial. I do not overlook the fact that Nicholas has advanced other explanations for it which it has not been necessary for me to consider at all but will lie at the heart of his case on the rehearing. The trial judge's findings on credibility with regard to the milk quota issue must inevitably spill over into the credibility findings which determine the other issues. It is, in my judgment, impossible to separate them and consequently everything must be remitted for rehearing. The judge will, needless to say, exercise his or her own judgment on all these matters and he or she should not feel and will not feel inhibited by any views I may have expressed in the course this judgment.

Postscript

44. I have mentioned already the emotions that spill over in this case: anger and hostility, suspicions, accusations and wounded feelings. Even the word "hatred" was used. But beneath it all there was the sense of sadness at this fracturing of relationships. The distress shown by Nicholas in the witness box did not seem to me to be contrived. I have no doubt that a vast amount of money has already been spent in this litigation. We have not been privy to the taking of the accounts but I cannot think there is a huge fortune at stake between Andrew and Nicholas, each of whom should remember from whom their not inconsiderable fortune has derived. They may well have made some attempt to compromise, but, if they are to honour their deceased father, as they should, and to have respect for the effort he made to build up this farming business for them and Simon, then surely time has come to bury the hatchet, try again and settle their differences. They may not easily be able to sit together around the kitchen table but they can sit at the table of a mediator skilled in bringing litigation like this to a quick resolution. I do commend it.

Lord Justice Dyson:

45. I agree.

Lord Justice Lloyd:

46. I also agree.