Admitting Further/Fresh Evidence: The ‘Important Influence’ Test or the ‘Determining Influence’ Test?

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]