1. ) RASHYTTEREN A/L KATHIRASEN 2. ) VETRIIVHELL A/L SARAVANAN v 1. ) VARATA RAJOO A/L NALASAMY 2. ) LONPAC INSURANCE BHD 3. ) DAYVANAI A/P MUNIANDY

Case Significance

Illustrates the discipline of Order 55 rule 7(a): fresh evidence will not be admitted on appeal where a party, through its own forensic choices at trial — such as submitting no case to answer without calling an available adjuster — declined to adduce the evidence.

This High Court decision at Penang concerns an application to adduce fresh evidence on an appeal from the Sessions Court, in a motor-accident claim, and the strict conditions that govern such applications. The plaintiffs had sued the first and second respondents and the motor insurer in the Sessions Court; on appeal to the High Court, the insurer (the third defendant) applied to introduce fresh evidence. Because the individual parties are natural persons named only as litigants, this analysis refers to them by role, while the insurer is named.

The court set out the governing rule. Under Order 55 rule 7(a) of the Rules of Court 2012, fresh evidence is not to be admitted at the hearing of an appeal unless the judge is satisfied that, at the hearing in the Subordinate Court, the evidence was not available to the party seeking to use it, or that reasonable diligence would not have made it available; and that the fresh evidence, if true, would have had, or would have been likely to have had, a determining influence on the decision. These conditions reflect the long-established principle that a party is not permitted to reopen a case with material it could and should have deployed at trial.

Applying that test, the court found that the third defendant had not satisfied it. There was no reasonable explanation showing that the proposed fresh evidence could not have been obtained with reasonable diligence for use at the trial. On the contrary, the insurer had chosen to submit that there was no case to answer without calling any defence witness — including its own adjuster, who had attended court on the trial date — and so had deliberately elected not to adduce the very evidence it now sought to introduce on appeal. The judgment is a useful illustration of the discipline of Order 55 rule 7(a): fresh evidence will not be admitted on appeal where a party, through its own forensic choices at trial, declined to call available witnesses.