Case No: A3/2011/3188
Neutral Citation Number: [2012] EWCA Civ 1179
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS DISTRICT REGISTRY
(HIS HONOUR JUDGE BEHRENS QC)

Royal Courts of Justice
Strand, London, WC2A 2LL

Wednesday, 18th July 2012
Before:

LORD JUSTICE LEWISON
and
LORD JUSTICE MOORE-BICK

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	SINGER & ANR	
Appellants	
	
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MUCKLEY & ANR	

Respondents	
			
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(DAR Transcript of 
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Mr Cranfield (instructed by Brooks Solicitors) appeared on behalf of the Appellants.

Mr Walker (instructed by Freeman Johnson Solicitors) appeared on behalf of the Respondents
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Judgment

Lord Justice Lewison:

1.	The sole issue before HHJ Behrens was whether the late Mr Andrew Muckley gave part of the garden land of Valley View Cottage to his neighbours, the Farquhars.  They relied on a transfer, on a form TR1, bearing the date 6 February 2004 and purporting to have been signed by Mr Muckley, whose signature was witnessed by Mrs Lucy Barnes.  Two handwriting experts examined the disputed signature.  Mrs Muckley had alleged that her husband’s signature was a forgery.  Mr Rodé, for Mrs Muckley, considered that the evidence was to whether or not Mr Muckley signed the transfer was inconclusive.  Mrs Marsh, for the Farquhars, thought that it was far more likely that Mr Muckley signed the transfer, and that he probably did.

2.	In addition to the expert witnesses, the judge heard evidence of fact.  The principal witnesses were Mrs Muckley on the one hand, and Mr Iain Farquhar and Mrs Barnes on the other.  Mrs Barnes gave a detailed description of the execution of the transfer, which the judge recounted in paragraph 54 of his judgment: 

“Lucy Barnes gave a detailed description of the execution of the Transfer.  She thought it took place late afternoon but could not really remember.  In any event, she was met in the drive by Iain Farquhar and taken to what was then the kitchen.  Present were herself, Iain Farquhar, John Farquhar and Andrew Muckley.  She was even able to describe where they were in the room -- Andrew Muckley was in the rocking chair, John Farquhar was stood with his back to the fire place.  John Farquhar said that ‘This is what we are all here to sign’.  Andrew Muckley looked at it -- more than merely glanced at it and then signed.  John Farquhar signed second, then Iain Farquhar and then Lucy Barnes.  Lucy Barnes signed as witness to all 3 signatures.  Underneath her signature in block capitals John Farquhar wrote Lucy Barnes name and address and post code which she had to supply.”

It does not appear from the judge’s judgment that Mrs Muckley gave a different account of the events of 6 February 2004, although we were told that a supplemental witness statement that she made mentioned that there were other family members present in the house on that day.  The judge made the following assessment of Mrs Barnes’ evidence:

“96. Lucy Barnes was as honest and as impressive a witness as one could hope to see in the Courts.  She gave her evidence carefully.  She was wholly independent and had absolutely nothing to gain by purporting to witness either Andrew Muckley’s signature or Carol Muckley’s signature when she had not done so.  She answered the questions that were put to her and gave the impression that she was genuinely trying to remember the circumstances when the 2 documents were signed.”

The judge also pointed out that Mrs Barnes would have had to have been involved in a dishonest conspiracy to defraud Mr and Mrs Muckley if her evidence were to be rejected.

3.	In addition to recording a favourable impression of Mrs Barnes as a witness, the judge also recorded an unfavourable impression of Mrs Muckley.  He rejected a number of uncorroborated allegations of dishonesty that Mrs Muckley had made against Mr John Farquhar.  It was not just that they were uncorroborated.  It was because such allegations were inconsistent with the continuation of the friendly relationship between Mrs Muckley and the Farquhars.  He rejected Mrs Muckley’s account of an incident on 21 January 2004, when according to her Mr John Farquhar had forged Mr Muckley’s signature in her and his presence.  This, he said, was completely incredible.  Likewise, in view of the contemporaneous correspondence, he rejected an allegation that Mrs Muckley was frightened of the Farquhars as too fanciful to be accepted.  He also found that Mrs Muckley’s description of her husband’s medical condition, and in particular an allegation that he was bedridden, was inconsistent with the medical records.  The judge summarised his impression of Mrs Muckley as follows: 

“I regret to say that Carol Muckley was not an impressive witness.  She made a number of serious unsupported and uncorroborated allegations against John Farquhar and to a lesser extent Iain Farquhar during the course of her evidence.  Apart from being inherently unlikely these allegations were inconsistent with contemporaneous documents, including letters and/or cards written by Carol Muckley.”

He also recorded that Mrs Muckley had called three other witnesses in an attempt to blacken John Farquhar’s character, but none of them gave direct evidence of any acts of dishonesty by him.  

4. But earlier in his judgment the judge did record, as was known, that Mr John Farquhar had been dismissed from his position as town clerk for gross misconduct.  On the basis of the evidence that he heard, the judge was satisfied that Mr Muckley did sign the TR1 on 6 February 2004.  It is accepted that there is no possible ground of appeal against that finding of fact without new evidence.  The judge gave judgment on 21 October 2009.  On 9 December 2011, more than two years out of time, Mrs Muckley applied for permission to appeal against the judge’s order.  The ground on which she wishes to appeal is that there is fresh evidence which undermines the judge’s central finding of fact.  Mr Cranfield, who has appeared on Mrs Muckley’s behalf, has put her application very realistically.  Mrs Muckley can be satisfied that her application has been put as well as it possibly could have been.

4.	The law before the advent of the Civil Procedure Rules was encapsulated in Ladd v Marshall [1954] 1 WLR 1489 at 1491, where Denning LJ formulated the following propositions that must be satisfied: 
(1) The evidence could not with reasonable diligence have been obtained for use at the trial.  
(2) The evidence must be such that if given, it would probably have had an important influence on the case and the results, although it need not be decisive.  
and (3) The evidence must be apparently credible, though it need not be incontrovertible.
These criteria remain of relevance under the CPR, although they are not necessarily determinative.  But in weighing the balance between reaching the correct result in a particular case and the important of finality in litigation, they are likely to be the most important criteria.

5.	As I have said, the application for permission to appeal is over two years out of time.  The sanction for failing to apply for permission to appeal in time is that the appeal cannot be brought.  So Mrs Muckley must also apply for relief against sanctions, which brings CPR Rule 3.9 into play.  Many of the criteria laid down in that rule echoed the considerations encapsulated in Ladd v Marshall.  
6.	Mrs Muckley wishes to rely on the evidence of six witnesses, none of whom was called at trial.  The first is her son, Jonathan Herring.  There are two significant pieces of evidence contained in his witness statement dated 21 February 2012.  First, he says he was at Valley View with his mother and stepfather on 6 February 2004, the date the transfer was purportedly signed.  He says that neither Mr John Farquhar nor Mrs Barnes visited Valley View that day.  Rather, his brother, Simon, and Simon’s partner, Nicola Kemp, visited with their new baby.  Second, he says that he recalls a visit in April 2004 by firefighters who met Mr Muckley to discuss proposals for a foundation for arson research to be built on the land in dispute.  Mr Herring’s account of the events of 6 February 2004 is corroborated by the evidence contained in the witness statement of Ms Kemp herself, which is also dated 21 February 2012.  She is the second witness.  Mr Herring’s evidence about the visit in April 2004 is corroborated by the evidence contained in the witness statement of Mr Martin Hall, who works with the Staffordshire Fire and Rescue Services.  His witness statement is also dated 21 February 2012.

7.	Mrs Muckley wishes to rely on three further witnesses.  The first of these is DC Ripley of Darlington Police Station.  His evidence is that in response to a complaint of theft by Mrs Muckley herself, made on 11 August 2009, that is to say before trial, the police executed a search warrant at the Farquhars’ home on 11 November 2009, that is shortly after trial.  They found a large quantity of railway memorabilia which had belonged to Mr Muckley.  But they also found an authority in Mrs Muckley’s own handwriting authorising the Farquhars to have this material; so that evidence, in my judgment, goes nowhere.  The second is Mr Chandran, who is a former mayor of Great Aycliffe Town Council where Mr John Farquhar had been Town Clerk.  He amplifies the reasons why Mr John Farquhar was dismissed for gross misconduct.  The final new witness is Mr Brian Hall, who also amplifies the reasons why Mr Farquhar was dismissed for gross misconduct.

8.	Lastly, Mrs Muckley wishes to rely on two documents.  First, a newspaper advertisement which appeared in a local newspaper in the week of 5 February 2005.  The significance of this is that it advertises Valley View for sale and describes it as one-third of an acre in extent.  This area can only be arrived at by including the garden ground.  It is alleged that the advertisement was placed by Mr John Farquhar in his capacity as Mr Muckley’s executor, and that to place that advertisement in those terms is not consistent with the Farquhars’ position that they already owned the garden ground.  Second, a letter apparently written by Mr John Farquhar in November 2004, which also appears to describe his own property as not including the garden ground.  This letter was written in opposition to a proposal to grant a goods vehicle operating licence to Mr Steven Brown.  Significantly, Mr Brown was a witness called at the trial.

9.	It must have been clear well before trial that the central issue was what happened on 6 February 2004.  The Farquhars’ case was that Mr Muckley signed the transfer on that date in Ms Barnes’ presence.  It should have been obvious to Mrs Muckley that if there were people present at Valley View that day who could contradict the Farquhars’ case by direct evidence, their evidence could be of the utmost importance.  Moreover, the two potential witnesses, Mr Herring and Ms Kemp, were both family members.  Indeed, Ms Kemp’s daughter was called as a witness on a rather peripheral matter.  There is no suggestion that there has been any estrangement between these family members, nor that their whereabouts were unknown.  It is obvious to my mind that their evidence could have been obtained with reasonable diligence for use at trial; with the consequence that the first of the Ladd v Marshall considerations is not satisfied.  Moreover, once the judge had given judgment against Mrs Muckley on 21 October 2009, which Mrs Muckley says came as a shock to her, there is nothing to suggest that Mr Herring and Ms Kemp could not have been interviewed there and then or at least within the time limited for appeal.  Thus, in my judgment it cannot be said that Mrs Muckley acted promptly for the purposes of CPR 3.9, nor is there a good reason for the delay for those purposes.

10.	So far as DC Ripley’s evidence is concerned, as I have said, in my judgment it proves nothing.  The second of the Ladd v Marshall criteria is not satisfied.  In addition, the search warrant was executed in response to Mrs Muckley’s own complaint and according to DC Ripley she herself was interviewed after it was executed.  Since the search warrant was executed less than a month after judgment, I cannot see why it has taken two years to interview DC Ripley.  Again, it cannot be said that Mrs Muckley acted promptly for the purposes of CPR 3.9, nor is there a good reason for the delay.

11.	Mr Martin Hall was, we were told by Mr Cranfield, known about at the time of the trial.  There is no reason put forward why his evidence could not have been attained at trial with reasonable diligence.  His evidence, therefore, fails the first of the Ladd v Marshall criteria, and again there has been no good reason put forward for the delay in producing his witness statement.

12.	As I have said, Mrs Muckley called three witnesses to blacken Mr John Farquhar’s character.  It was already known that he had been dismissed as Town Clerk for gross misconduct, so that must have been a relevant fact, at least in Mrs Muckley’s eyes.  There is no explanation why Mr Chandran was not interviewed in time for trial, and no explanation of why two years elapsed following the judgment before he was interviewed.  The same in my judgment applies to Mr Brian Hall.  Once more, in my judgment, it has not been shown that the evidence could not have been obtained with reasonable diligence, and it has not been shown that Mrs Muckley has acted promptly, nor is there a good reason for the delay.

13.	The final piece of evidence is the advertisement in the letter.  The advertisement appears to have been retrieved online, but Mrs Muckley does not say when.  Nor does she say why she did not produce the advertisement at trial or what it was that prompted her to look for it after trial.  Moreover it is on its own a slender piece of evidence, since it does not indicate who caused it to be placed in the newspaper.  Lastly, since Mr Brown was called as a witness at trial and must have known that his application for a licence had been opposed by Mr Farquhar, I am not satisfied that this piece of evidence could not have been obtained at the time of trial.  There is also the fact that in order for the evidence to have a decisive effect on the result, it would be necessary to show that Mrs Barnes, the apparently independent witness whose evidence the judge accepted was, as the judge said, involved in a dishonest conspiracy.  None of the evidence thus far produced goes to undermine her credibility or her honesty.

14.	In the end, for my part, the decisive considerations are these.  Mrs Muckley has not shown that the evidence upon which she wishes to rely, at least in its important respects, could not have been obtained with reasonable diligence for use at the trial.  She has not acted promptly in seeking relief against sanctions and there is no good explanation for the delay.  The public interest in finality of litigation encompassed in the administration of justice referred to in CPR 3.9 outweighs the possibility that the judge might have reached a different result if this evidence had been before him.

15.	I would therefore refuse the extension of time, with the consequence that the appeal cannot proceed.

Lord Justice Moore-Bick:

16.	I agree.  

Order:  Application refused.