According to Outasight VB Ltd v Brown the principles set down by the Court of Appeal in Ladd v Marshall still apply to the question of whether the ‘interests of justice’ require a review (now known as ‘reconsideration’ under rule 70 of the 2013 Rules).
At the reconsideration hearing, the tribunal did not accept B’s assertion that he had been unable to find the evidence before the liability hearing. It noted that, under the ‘strict’ rule 34 of the Tribunal Rules 2004, this would not count as ‘fresh evidence’. However, the tribunal took the view that it had wider discretion under rule 70 of the 2013 Rules, which allows for reconsideration where necessary in the interests of justice, and agreed to revoke its judgment.
Her Honour Judge Eady QC, sitting alone in the EAT, reviewed the change of language between the 2004 and 2013 Rules. Rule 34(3) of the 2004 Rules set out specific circumstances in which a judgment may be reviewed. These included, at paragraph (d), where new evidence became available that was not available at the time of the hearing. Rule 34(3)(e) also provided for review where the interests of justice required it. Thus, rule 34(3)(d) reflected the principles governing the admission of new evidence on appeal set out by the Court of Appeal in Ladd v Marshall 1954 3 All ER 745, CA, and rule 34(3)(e) recognised that, even where these principles were not strictly met, the interests of justice may still require new evidence to be considered. In HHJ Eady’s view, the fact that rule 70 of the 2013 Rules dispenses with the specific categories did not indicate any change of position, nor did it suggest that the Ladd v Marshall principles no longer applied.