When evidence is inadvertently left out of the papers put before the court, can the judge revisit the judgment when the missing material comes to light?

In essence the answer is yes – but judges may be loath to do so. In Absolute Lofts South West London Ltd v (1) Artisan Home Improvements Ltd (2) Darren Mark Ludbrook (2015) the judge refused to reconsider his decision when it was pointed out that allegedly key page of the licence in dispute had been left out of the trial bundle in error.

The judge took the view that trying to reintroduce the missing page after judgment was equivalent to bringing in new evidence. Consequently, (and by analogy) he considered the three criteria which are normally applied to whether new evidence can be put to the Court of Appeal. These are set out in Ladd v Marshall [1954] 1 WLR 1489:

  • whether the missing page could have been obtained by reasonable diligence for use at the trial
  • whether if the page was allowed in evidence, it would probably have an important influence on the result of the case
  • whether the missing page was credible evidence.

The test is a high one as the missing page would need to have been previously unavailable and put the issues considered by the Judge in a new light to be admissible.

Absolute Lofts failed to convince the judge of the first and second criteria. He consequently refused to reconsider his judgment in light of the missing page. As it was clearly an oversight, the Judge held that there was no reasonable excuse for it not being included. He also could not determine that it put the issues into “bright and truly compelling light” (Vringo Infrastructure Inc v ZTE (UK) Ltd [2015] EWHC 214 (Pat)), which could perhaps have tipped the balance in favour of allowing it.

The moral of the story is the importance of ensuring all evidence is before the court. If litigants need to ask the Judge to adjust his judgment, there is a high hurdle to jump.