LOUVET v. LOVET AND ANOTHER

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R U L I N G

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Hunter, JA :

1. We have before us an application for the admission of fresh evidence on the hearing of this appeal. In order to understand the application, it is necessary to recite some of the history of the action, which is fortunately readily obtainable from a chronology which is before us.

2. The wife respondent launched her petition in Hong Kong on 12th September 1988. On 4th October, the husband appellant acknowledged the service of the petition and expressed an intention to defend. It is apparent from other evidence that between 1st and 11th October, the husband was in Paris and that resulted, one infers, in the issuance in Paris on 10th October of his petition for divorce in that jurisdiction based upon fault. It seems to me apparent that between the 1st and the 10th, the husband must have consulted his advisers in Paris, and decided that he was going to attack in France upon the basis of the wife's alleged desertion and adultery, and likewise to defend himself and seek a stay of the Hong Kong proceeding.

3. On 25th October, the application for a stay was lodged in Hong Kong, returnable on 17th November for a time then given of half an hour. That time was extended to a full day on 31st October by Judge Blackwell. On 3rd November, the husband's then solicitors filed in support of the application the evidence upon which they were hoping to succeed before the Judge. It consisted of affidavits from the husband, from a Mr Chan, and from a Miss Chu, both of that firm, exhibiting various material on French law. The next day the wife took out a summons asking for directions as to the evidence.

4. That came before Judge Blackwell on 7th November. His note has been put before us and it shows that the wife's lady solicitor was inviting the court to say that there should be no further evidence filed on the husband behalf after the 10th November. Mr Chan, on the husband's behalf is recorded as having said: "I think most evidence is already in court. There has to be a translation and a further affidavit from the French lawyer, M Stasi". His letters had been exhibited in the evidence already before the court, "I cannot consent, but I will go along with what the lady says as far as possible". Accordingly the Judge gave directions that the husband should have leave to file evidence up to the 14th November, and the wife was to have leave to file evidence in reply by Wednesday, the 16th. Much criticism had been made of that order upon the basis that the Judge's timetable made insufficient or no allowance for evidence in reply. Having regard to the way in which the matter was presented to him, it seems to me impossible to criticise the Judge for taking the course he did.

5. On the next day, 8th November, there was an important event, a change of solicitors and a change of counsel on the husband side. The wife's evidence in opposition to the application was all filed a day early on the Judge's timetable on 15th November. It consisted of a short affidavit from her upon which she particularly relied; a longer one which set out some of the history of the marriage upon which it was said in terms she did not rely; an affidavit from her solicitor; and an affidavit from a French lawyer.

6. The matter came on for hearing on 17th November. The whole day was taken up by an application by the husband's counsel for an adjournment on the basis that there was insufficient time particularly for putting expert evidence before the court. No mention was made of other evidence. That application was rejected by the Judge, who then appointed the 21st and 22nd November for the hearing of the summons and gave leave to the husband to file further evidence by the 19th. In fact, by the 21st, two further affidavits had been sworn and put in by the husband; one as to means and one dealing with the events of the marriage. There was also put in an affidavit by Miss Longmore in support of a further application for an adjournment. That affidavit had exhibited to it another letter from M Stasi, the French lawyer. It also revealed that in the time between the two hearings, advice had been taken from a QC in London who had expressed strong views as to the inadequacy of the husband's evidence. On the 21st, the hearing then proceeded, and on 12 December, he issued his decision and made an order dismissing the application for a stay.

7. Time for appealing passed, but in due course the husband sought leave to appeal, out of time, against three decisions of the Judge, the two refusals of adjournments and the dismissal of the stay application. He was granted leave to appeal in respect of the last matter only. On 17th May, a notice of appeal was filed. The last paragraph of that notice refers to a possible application to seek the admission of further evidence, but there is no indication of that basis of that application at all.

8. Various steps were then taken in the action itself. The next significant date for the purposes of the present application is that starting on 16 October, some two weeks before the hearing, a series of affidavits were made by the respondent and others, setting out the fresh evidence which the court was to be invited to admit and the reasons why it should so act.

9. The application falls into two quite distinct parts. The first part relates to evidence which existed or could have been brought into existence at the time of the original hearing. By that I mean evidence as to past fact, and expert evidence which was no doubt then available if it had been sought. The second part of the application relates to subsequent events which have occurred since the date of the hearing. I will take first the fresh evidence, strictly so called, under the first category. First, it is common ground that we are concerned with the application of Ladd v Marshall [1954] 1 WLR 1498 and in particular with the first two conditions. It is sufficient to read from the headnote:-

"Leave to adduce further evidence on appeal will only be granted :

1.    If it is shown that the evidence could not have been obtained with reasonable diligence for use at the trial,

2.    If the further evidence is such that, if given, it would probably have an important influence on the result of the case though it need not be decisive ... "

Here it is convenient to consider separately, first the expert evidence, and secondly, the factual evidence.

10. The first question which arises on the due diligence test, is when did the due diligence clock start to run? Mr Allman-Brown, for the husband, urged us to say that the clock started to run when the new team was appointed on 8th November, and when, as he asserts, sound advice was first given to this husband. With respect, it is not possible in cases like this to distinguish between a party and its advisers. It seems to me plain in this case that the due diligence clock started to run in about the first week in October, when the husband was in Paris in consultation with his legal advisers and, when he plainly decided that he was going to fight in Paris and resist in Hong Kong. This is confirmed by the fact that shortly after his return from that visit the summons for stay was issued. It is to my mind equally plain from the observations of Mr Chan on 17th November, that his then solicitors were satisfied that they had properly determined the scope of this application and the necessary evidence in support of it, and felt that the evidence that they had filed sufficed for this purpose. It is quite true that the new solicitor took a totally different view, and at what I can only describe as the 59th minute of the 11th hour obtained advice from a Silk in London. That to my mind, is about as effective as taking an advice of evidence on the last day of a trial.

11. In these circumstances, the due diligence test requires parties to put their tackle in order at the proper time. The proper time when you are launching an application for a stay of this nature is before you launch your application. In those circumstances, I am personally not surprised that the trial judge took the view that this husband had had quite sufficient time to put his tackle in order, and refused both applications for an adjournment. This is perhaps immaterial, because there has been no effective appeal from that decision. It therefore seems to me to be impossible for the husband now to say that he has had no opportunity to present this expert evidence, when, by definition, the trial judge thought that sufficient time had already been afforded to him.

12. I then consider the evidence which is sought to be led. It comes from three persons. The first is M Stasi, whose letters were already before the court. As far as I can see, what has happened now is that M Stasi for the first time, has sworn an affirmation instead of leaving his advice to be derived from his letters. There is little difference between the present and what was said originally. It is perfectly obvious that if he had been asked or thought about it, he could have said what appears in his more recent affirmation at the earlier date.

13. The other two potential witnesses go together. The first is Professor Vaisse. There are two documents of his before the court. The first is an opinion which he expressed in March of the following year, from which it is quite apparent that he was not asked to advise until after some proceedings in France on 8th February. There is simply no evidence that it was in the contemplation of the husband's advisers at any material time that they needed or proposed to obtain evidence from that source. His ultimate opinion arrived almost as this court sat.

14. The second witness is a Mr Le Breton, the notary who officiated at the time of the marriage. Again it is plain that no one contemplated getting evidence from him at the material date. In those circumstances, it seems to me that this applicant fails to overcome the due diligence hurdle in Ladd v Marshall in respect of the expert evidence.

15. I then turn to the factual evidence. Here the husband's problems in relation to the due diligence hurdle are even greater. There is no evidence that the seeking of this evidence was in contemplation at the material time at all. As I have said, there were four affidavits from the husband. There is no suggestion that anyone thought to fortify these affidavits with the weight of exhibits which are now suggested to be material in the very considerable bundle of additional evidence. The whole presentation here reeks of second thought; of the desire now to remedy deficiencies in the evidence thought to have been revealed by the judge's findings. This inference is confirmed by the fact that the notice of appeal is silent upon this with no formulation of the matter at all, and that the whole thing was first put in order starting on 16 October last. Here also the effect of the refusal of the adjournment is even more acute, because the application for the adjournment was not even sought upon this basis. So that again in my judgment, this class of evidence falls at the first hurdle.

16. Equally it seems to me to fall at the second hurdle. It is simply not shown to be relevant to the choice of venue issue before this court. It overtly goes to credit, the wife's credit, or the wife's discredit. It seeks to disprove some of her descriptions of what I call the "downs" of this marriage and the pre-marriage relationship. It is even said to disprove her denials of adultery and desertion.

17. It seems to me that this is a complete misunderstanding of the court's functions on interlocutory proceedings. The matter was spelt out by Lord Diplock in American Cyanamid v Ethicon Ltd [1975] AC 396, at p 406 C. In this court we tried to express a similar view quite recently in Wo Fung Paper Making Factory Ltd v Sappi Kraft (Pty) Ltd [1988] 2 HKLR 346 at p 356. In dealing with interlocutory matters of this nature, a court is in no position to make, and this judge certainly did not purport to make, any findings of fact. In the absence of cross-examination, this is quite impossible. All it can do on an application like this is to see where the area of dispute lies, in order to consider which is the most appropriate forum in which those issues can be determined. A court faced with conflicting factual accounts on affidavits can, I think, do little more than reach tentative conclusions which are sufficient for the performance of the function before it, upon what I am minded to describe as the balance of apparent probabilities. In those circumstances, this evidence fails to satisfy the second rule in Ladd v Marshall also. The application accordingly to introduce fresh evidence strictly so called fails.

18. The second application is quite different. It is sought to put before the court events which have occurred subsequent to the hearing before the trial judge by means of the affidavits, pleadings and documents which have come into existence since, with a view, it is said, to showing fundamental changes in the situation which have overtaken the situation which existed at the time of the trial. In Mr Allman-Brown's original submission, this entitled the court to exercise its own discretion on those new facts. This application seems to me to misunderstand the functions of a judge and a court of appeal in these circumstances.

19. I take the position of the judge first. The Hong Kong court plainly has jurisdiction to hear this petition. The only question raised by the stay application was whether it should accept and exercise this jurisdiction. Put more shortly, it might be said: was this wife forum-shopping when she issued her petition in Hong Kong? I use that word in a totally neutral sense, namely as to whether when she issued her petition here, she was choosing an inappropriate forum for the determination of the relief she seeks. There are sound practical reasons why a court which is faced with an application of this nature should express its view at the earliest possible moment, before a lot of time and unnecessary costs are expended. This is particularly the case because an application for a stay does not operate as a stay itself.

20. In matrimonial proceedings there may be a number of effective interlocutory proceedings going on at the same time. This may explain why the time limited by the new statute in England is "the trial or first trial". We can see that from de Dampierre [1988] AC 92 at p 103 where the relevant statutory provision is set out in the speech of Lord Goff. It does not necessarily follow from the fact that in England the applicant is given this range of time that delay in making the application will necessarily be ignored.

21. It is accepted, by counsel, that there is no rule governing these applications. It is also accepted that there is a clear analogy between this type of application and the application which arises under order 12, when a party is served by leave under Order 11, and wishes to dispute the jurisdiction of the court. He has then to raise his objection, 012 r 8 (1) "within the time limited for service of a defence".

22. The relevant modern principles were first stated in the House of Lords in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 which was in fact an Order 12 case. I think it is quite clear from the speeches of Lord Templeman and Lord Goff that they thought that the same root principles applied both to applications under order 12, and in an application such as we have before us, for a stay, with certain differences on onus specifically noted by Lord Goff. It is therefore difficult to see any good reason why when the principles are identical, they should be applied at materially different dates. That was the view of Lord Diplock in MacShannon v Rockware Glass Ltd [1978] AC 795, 813; "the decision ... must be taken promptly". It was also the view taken by Sheen J in The Biskra [1983] 2 Lloyds Rep at p 29 where he said that applications of this nature should be made "at the earliest possible moment".

23. I would summarise the position in this way. First, there has to be a prompt application, and the application was, made promptly here. Secondly, it has to be looked at, as at the date of petition, to decide whether this was an exercise in forum shopping, and to be judged on material before the court no later than the date of hearing. Thirdly, the judge had to make up his mind on the materials which are then put before him. It is self-evident that subsequent events do not figure in his assessment at all. That is the position of the judge.

24. Now before a court of appeal, first it is obvious that this is a review of discretion case. This was emphasised repeatedly in Spiliada, with the well known limitations upon that process. Secondly, it is a review of discretion based upon the materials before the judge. It would be quite different if this court were allowed to look freely at subsequent events and to exercise its discretion upon the basis of those events. Then in almost every case, except those where the world had stood still, it would be exercising a fresh discretion upon those new materials. It would not be reviewing the judge's discretion at all. That point is particularly underlined where the court specifically admits fresh evidence under Ladd v Marshall. This to my mind points inevitably to the conclusion that subsequent events which ex hypothesi were not relevant to the judge hearing that matter, are equally irrelevant to the appellate process from that hearing. These subsequent events are simply irrelevant to the review of that discretion.

25. I am not suggesting that the court closes its eyes to its files which are numerous in this case as to some of the events that have happened, but at most they come in as a matter of history. This in my view is shown by the decision of the House of Lords in de Dampierre in two respects. The wife had founded her English petition in that case upon husband's then residence in the United Kingdom. He was in residence there at the time of the hearing before the Court of Appeal. Between that date and the hearing before the House of Lords, he sold his London horse and returned to France, leaving behind sum of money by compulsion as a result of court process. That is noted by Lord Templeman on p 99 of his speech. But no one suggested that because the husband was now resident in France that vitiated the wife's petition or made France necessarily the appropriate forum. The second point which arises from this decision is that at p 108 in his speech, Lord Goff refers to the position arising when you have parallel proceedings and to the impact of these proceedings. Again that matter, it seems to me, has judged as the date of the original hearing otherwise up in a sort of "own boot-straps" situation. You go back to the date of hearing and give no impact to the English proceeding. Twelve months or more later when it reaches the House of Lords those proceedings had been taken through many more stages and have had much more impact. If you start assessing the impact then, you might end up by saying that "There is now real impact from the English proceeding, they must continue." That is plainly not an acceptable argument. So you have to go back and assess the impact, and the parties preceding steps, who started the proceedings first and so on, as of the date of hearing. So I would reject these matters as admissible evidence, simply upon the basis that they have no direct relevance to the appellate process.

26. I think I would also have come to the same conclusion on an analysis of the subsequent evidence cases particularly Mulholland v Mitchell [1971] AC 666. Particular reference was made to the speech of Lord Wilberforce at p 679 where he expresses the rule in these terms:

"Negatively, fresh evidence ought not to be admitted when it bears upon matters falling, within the field or area of uncertainy, in which the trial judge's estimate has previously been made."

That precisely covers all matters which are sought to be relied upon here, by way of changes of residence; changes of job; changes of means. It is apparent that the trial judge must have recognised that in this type of case there could well be changes anticipated, particularly in view of evidence of the then state of the husband's employment.

Lord Wilberforce goes on: -

"Positively, it maybe admitted if some basic assumptions, common to both parties, have clearly been falsified by subsequent events, particularly if this has happened by the act of the defendant".

27. It is that passage that was particularly relied upon at one stage. But one notices the words "common to both parties". I cannot find in this case any basic assumption which was common to both parties at any stage. The last suggestion is positive too. "It may be expected that courts will allow fresh evidence when to refuse it would affront common sense, or a sense of justice". I can see nothing here which would affront either common sense or a sense of justice in the exclusion of these recent events. So for my part I reject this application.

Fuad, V-P:

28. I agree that for the reasons so comprehensively given by my Lord Hunter JA that the application in relation to the admission of further evidence on this appeal on either limb proposed to us by Mr Allman-Brown should be refused.

Penlington, JA :

29. I initially was in some doubt concerning the admission of the evidence from the French legal experts, but having heard what has just fallen from Hunter JA on this point, I am no longer in any doubt, and I agree with the decision he has just given.