Irving v. Lipstadt


Holocaust Denial on Trial, Outline submissions on behalf of the First Defendant: Electronic Edition, by Richard Rampton

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The power of the Court of Appeal to admit fresh evidence

2. So far as the admission of fresh evidence is concerned, the CPR provides1 :
"Unless it orders otherwise, the Court of Appeal will not receive:
  • a) oral evidence; or
  • b) evidence which was not before the lower court."
Although there is no requirement of "special grounds" under the CPR (contrast RSC Order 59 rule 10(2), which applied formerly), the principles set down in Ladd v Marshall [1954] 1 WLR 1489 at 1491 continue to have powerful persuasive force. The relevant conditions are:
"To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible."
The Ladd v Marshall principles remain relevant to the Court of Appeal's discretion when deciding whether or not to admit fresh evidence: see Hertfordshire Investments v Bubb [2000] 1 WLR 2318.2 At page 2324, Hale LJ said:  
"There are, of course, strong reasons for this approach, which has a long pedigree. It is in the interests of every litigant and the system as a whole that there should be an end to litigation. People should put their full case before the court at trial and should not be allowed to have a second bite at the cherry without a very good reason indeed."
At page 2325 Hale LJ noted that "strong grounds" were required for the admission of fresh evidence.
3. The First Defendant submits that it is for Irving to establish that each of the Ladd v Marshall tests is fulfilled and that he has not done so. So far as Rudolf is concerned, not only could the "new" evidence have been obtained with reasonable diligence for use at the trial (first test), it was in fact already available to Irving for that purpose. The evidence of Rudolf and/or Polanska-Palmer would not have had an important influence on the result of the case (second test); and their evidence is not apparently credible (third test).
4. There is obviously an overlap in this case between the second test and the question whether the original grounds of appeal disclose any real prospect that the appeal might succeed3 . The reason is that the "new" evidence relates to but one issue in the case (Auschwitz), so that its potential for having an "important influence on the result of the case" must be judged against all the other issues which were decided against Irving, including those which are the subject of the original grounds of appeal. If those grounds of appeal disclose no real prospect of success, then the only remaining question is whether the "new" evidence (assuming, which is denied, that it passes the first and third tests) is in itself so potentially influential on the result of the case that it must nonetheless be admitted For reasons which are given below, that question should be answered in the negative.


1. CPR Pr 52 52.11(2); 2001 CPR page 993
2. In giving a ruling on 17th January 2001 in this case, Sedley LJ stated that "the principles stated Ladd v Marshall remain relevant, not as rules, but as matters necessarily to be considered in the exercise of the Court's discretion to allow further evidence on appeal in accordance with the overriding objective." The Court of Appeal had taker the same view in Hamilton v Ai Fayed (no 4) CA [2001] EMLR 15.
3. See CPR Pt 52.3(5), 2001 CPR page 384 (when permission to appeal will be granted by the Court of Appeal).
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