In Kieren Corrigan & Co Limited v Bashir Timol (2024), the Court of Appeal again made it clear that a party who obtains a favourable judgement, when at the same time failing to disclose relevant material, risks having the judgement set aside. Additionally, they may face substantial costs of a retrial if that evidence subsequently comes to light. This is an important reminder that parties in litigation must take their disclosure obligations seriously and ensure they benefit from the guidance of an experienced commercial disputes solicitor.
In striking that balance between the desirability for finality and achieving the right result, the Court of Appeal will take into account all the circumstances. So, for example, it may take into account the reasons for the new evidence coming to light and the conduct of the parties generally. If, as in the instant case, the reason why the new evidence was not available at trial was as a result of a failure by the successful party to disclose it in accordance with their obligations under the CPR prior to the trial, the arguments for the new evidence to be admitted in the interests of justice are likely to be stronger than if the evidence has become available from an independent source