In the past, I have argued that the English Court of Appeal decision in “[Ladd v Marshall [1954] 3 All ER 745] is redundant (at least in relation to introduction/admission of fresh/further evidence in the Court of Appeal and below) in light of the relevant legal provisions which have been introduced vis-a-vis the introduction/admission of fresh/further evidence.”[1]
Amongst others, Rule 7(3A) of the Rules of the Court of Appeal 1994 and Order 55 Rule 7 of the Rules of Court 2012[2] provides that new evidence shall not be admitted unless “the new evidence, if true, would have had or would have been likely to have had a determining influence upon the decision of” the High Court or the subordinate court as the case may be [“Determining Influence”].
Meanwhile in Ladd v Marshall [1954] 3 All ER 745, “the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive”[3] (“Important Influence”).
The Determining Influence requirement clearly calls for a higher threshold to be met compared to the Important Influence requirement.
A piece of new evidence can have an important influence but not necessarily have a determining influence and the legal provisions which have been introduced, require the latter.
Unfortunately, some subsequent Court of Appeals and High Courts have incorrectly applied the Important Influence requirement rather than the Determining Influence requirement thereby muddying Malaysian jurisprudence on the admission of fresh/further evidence in the Court of Appeal and below.
Court of Appeal
Examples include:
i. Dato’ Ahmad Johari bin Tun Abdul Razak v A Santamil Selvi a/p Alau Malay @ Anna Malay (administratix for the estate of Balasubramaniam a/l Perumal, deceased) & Ors and other appeals [2020] 6 MLJ 133;[4]
ii. Ho Min Hao & Anor v Ho Yee Chin & Anor [2017] MLJU 06;[5]
iii. Ting Sieh Chung @ Ting Sie Chung v Hock Peng Realty Sdn Bhd [2016] 5 MLJ 342;[6]
iv. Datuk Seri Panglima Mohd Sari bin Datuk Hj Nuar v Vee Seng Development Sdn Bhd & Ors [2009] 6 MLJ 643;[7] and
v. Mid Valley City Sdn Bhd & Anor v Arkitek Tenggara Sdn Bhd [2003] 1 MLJ 66[8]
High Court
Examples include:
i. Lokanathan a/l Manickam v Tetuan Ahmad Deniel, Ruben & Co (menjalankan perniagaan firma guaman secara perkongsian) [2021] MLJU 411;[9]
ii. Poh Bee Bee v Brand Speaks Sdn Bhd & Ors [2021] MLJU 227;[10]
iii. Abd Razak bin M Abd Karim & Ors v Deras Cemerlang Sdn Bhd [2020] MLJU 2126;[11]
iv. Jasmair Singh a/l Pajan Singh v Bir Singh a/l Teja Singh & Ors [2017] MLJU 1678;[12]
v. Bauer (M) Sdn Bhd v Embassy Court Sdn Bhd & Anor [2012] 10 MLJ 189;[13] and
vi. Hajah Jamilah bt Udin v Yapp Pow Khin & Anor [2008] MLJU 987.[14]
The above Court of Appeal and High Court cases, evidently, should be treated and applied cautiously.
Moving forward, legal practitioners should emphasise and rely on the relevant legal provisions rather than adopt Ladd v Marshall [1954] 3 All ER 745 wholesale or adopt it in supersession of the relevant legal provisions.
[1] Wu Kai-Ming, Joshua. “Ladd v Marshall: Relevant or Redundant?” Joshua Wu, 4 May 2021, https://joshuawu.my/ladd-v-marshall-relevant-or-redundant/. Accessed 14 June 2021.
[2] Previously in Order 55 Rule 5A of the Rules of the High Court 1980
[3] Ladd v Marshall [1954] 3 All ER 745, at p, 748
[4] Dato’ Ahmad Johari bin Tun Abdul Razak v A Santamil Selvi a/p Alau Malay @ Anna Malay (administratix for the estate of Balasubramaniam a/l Perumal, deceased) & Ors and other appeals [2020] 6 MLJ 133, at paragraph 26: “This gives the inference that the said documents are not material nor relevant and has no important influence on the result of the striking out application and the appeal herein.”
[5] Ho Min Hao & Anor v Ho Yee Chin & Anor [2017] MLJU 06, at paragraph 16: “We respectfully agreed with the decision in Datuk Seri Panglima Mohd Sari bin Datuk Hj Nuar (supra) and in line with that, we presumed the contents of LYY’s fresh evidence was to be believed and appeared credible. Hence it would probably have an important influence on the learned JC’s decision on the striking out application. For all the above reasons we allowed the application of the Appellants to introduce the new evidence applied for, in enclosure 7a with costs in the cause.”
[6] Ting Sieh Chung @ Ting Sie Chung v Hock Peng Realty Sdn Bhd [2016] 5 MLJ 342, at paragraph 25: “… The fact that those documents were to have an important influence on the result of the case was too clear to see in the circumstances.”
[7] Datuk Seri Panglima Mohd Sari bin Datuk Hj Nuar v Vee Seng Development Sdn Bhd & Ors [2009] 6 MLJ 643, at paragraph 34: “For these reasons, it can be surmised that the fresh evidence would probably have an important influence on the outcome of the claim.”
[8] Mid Valley City Sdn Bhd & Anor v Arkitek Tenggara Sdn Bhd [2003] 1 MLJ 66, at p, 71: “As to the fact that whether the production of those documents have any important influence on the result, it is necessary for us to refer to the judgment of the learned trial judge (which is exhibited in the affidavit of the respondent).”
[9] Lokanathan a/l Manickam v Tetuan Ahmad Deniel, Ruben & Co (menjalankan perniagaan firma guaman secara perkongsian) [2021] MLJU 411, at paragraph 31: “Secondly, it seems to me that the Cheques would probably have an important influence on the result of the Summary Judgment hearing. This is because the Cheques go towards proving D’s averment that he had made the Payments. Such averment was not an empty or bare assertion.”
[10] Poh Bee Bee v Brand Speaks Sdn Bhd & Ors [2021] MLJU 227, at paragraph 20: “After a reading of the Petition, I thus find that the Petitioner had pleaded her case on the fact that the directors of the Company had been acting in their own interests and I hold that the new evidence intended to be adduced as per the Application may have an important influence on the result of the case to amongst others show that such conduct continues after the Petition has been filed. This will in my opinion also show that the issues in the Application have been pleaded in the Petition and that the requirement of the Petitioner alleging the facts entitling the Petitioner to present the said Petition as stated in Datuk Mohd Sari v Idris Hydraulic [2997] 5 MLJ 337 is present in the Petition before me.”
[11] Abd Razak bin M Abd Karim & Ors v Deras Cemerlang Sdn Bhd [2020] MLJU 2126, at paragraph 25: “Condition 2: 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:
[25] Pre 2020 quit rent bills would have the same, if not similar, impact on the point which the Plaintiffs wish to make with the quit rent bills for 2020.” (emphasis in the original)
[12] Jasmair Singh a/l Pajan Singh v Bir Singh a/l Teja Singh & Ors [2017] MLJU 1678, at paragraphs 20 and 23: “[20] … Inevitably, I hold the view that the additional chemist report, if given, it would have an important influence on the result of the case, although it need not be decisive.
…
[23] I have no doubt that the documents sought after would definitely it would have an important influence on the trial Judge as well as on the result of the case, although it need not be decisive.”
[13] Bauer (M) Sdn Bhd v Embassy Court Sdn Bhd & Anor [2012] 10 MLJ 189, at p. 201: “WHETHER THE EVIDENCE IS SUCH THAT, IF GIVEN, WOULD PROBABLY HAVE AN IMPORTANT INFLUENCE ON THE RESULT OF THE CASE, ALTHOUGH IT MAY NOT BE DECISIVE …
[36] As such, the court finds that the second requirement as laid down in Ladd v Marshall has been satisfied.”
[14] Hajah Jamilah bt Udin v Yapp Pow Khin & Anor [2008] MLJU 987: “For reasons I will give later, I do not need to deal in detail with whether or not these conditions were fulfilled. Certainly it seems apparent that the evidence could have been obtained. In view of the pronouncements of both the registrar and the Commissioner, before each of whom the evidence was canvassed more fully, it is also apparent that the evidence would have an important influence.”
Recent Comments