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The Court of Appeal blows the whistle on fresh evidence on appeal in a Part II LTA 1954 case: Clear Call Ltd v Central London Investments Limited [2016] EWCA Civ 1231

When a court is considering a tenant’s application for a grant of a new tenancy or a landlord’s opposition to the grant of such a tenancy under the provisions of Part II of the Landlord and Tenant Act 1954, it is often deciding what terms will govern the future rather than considering what has happened in the past.

On occasion there will be a material change of circumstances (such as the grant of planning permission to a landlord relying on section 30(1)(f)) between the decision at first instance and any appeal hearing. In these circumstances, the appellate court will be more ready to admit evidence of post-trial events and will not typically apply the more strict Ladd v Marshall criteria: see, for example, the comments of Lewison J (as he then was) in Davy's of London (Wine Merchants) Ltd v City of London Corp [2004] EWHC 2224 (Ch). In Clear Call Ltd v Central London Investments Limited, however, the Court of Appeal imposed a limit on fresh evidence and gave useful guidance about this point. 

The facts of the case

The tenant, Clear Call, applied for a new tenancy; the landlord, Central London Investments, did not oppose the grant of a tenancy but disagreed as to its terms and in particular the rent. Both parties called experts to give rental evaluation evidence. The landlord’s expert relied on three comparable transactions. It was Clear Call’s case that one of the comparables was ‘suspicious’ and was not a genuine letting. In the event, the first instance judge relied on the comparable when setting the rent.

Appealing with fresh evidence

A director of Clear Call then made three witness statements, which dealt with the state of the comparable property. On appeal, Laing J rejected the tenant’s application to rely on this ‘new’ evidence, citing the Ladd v Marshall criteria.

The Court of Appeal upheld Laing J’s decision. The evidence in Davy’s of London’s case was of far greater consequence than in the instant matter. Certain types of dispute as to the terms of a new tenancy might lend themselves to the ready admission of fresh evidence. In Davy’s of London’s case the dispute was about the insertion and detailed terms of a re-development break clause: it therefore turned on an evaluation of future rather than past events. 

By contrast, the tenant’s witness statements had nothing to do with future events. The new evidence went to whether the first instance judge properly relied upon the comparable transaction. It was of no real substance as fresh evidence and failed to satisfy the Ladd v Marshall criteria.

David Sawtell and Richard Hayes are currently presenting a seminar on redeveloping commercial property and the Landlord and Tenant Act 1954. It lasts for one hour and can be presented at your offices by arrangement. Please contact the clerks at Lamb Chambers for more details.

David Sawtell / 8th Dec 2016


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