Scottish Court of Session Decisions

Lastly, res noviter veniens appears as one of. the statutory grounds upon which in jury practice a new trial may be ordered. It is, I think, an easier matter to allow additional evidence after a concluded proof than to put parties to the trouble and expense of leading the whole case afresh before a new jury. But so far as competency goes the power of the Court to order a new trial on account of emerging matters of fact, or on account of emerging matters of evidence, written or parole, is the same as in the case of allowing additional evidence after a concluded proof. My opinion is that the statutory category of res noviter in the Jury Act of 1815 covers both new fact and new evidence. I do not think this has been at any time doubted. In Mr J. P. Grant's book on New Trials, published in Edinburgh very shortly after the date of that Act, I find the following at page 131—“Where evidence has newly come to the knowledge of the party, where there is, as it is termed in the law of Scotland, res noviter veniens ad notitiam, with which he neither was nor ought in reasonable diligence to have been acquainted at the time of the trial, but which is material to the justice of the case, then undoubtedly justice requires that a new trial should be granted.” And Mr Commissioner Adam in his book on Trial by Jury gives as one of the grounds for granting a new trial “that evidence had been discovered subsequent to the trial which could not have been foreseen or known before the trial” (p. 224). There is one reported case in which a new trial was granted (on the issue of a testator's sanity) upon an application founded on the discovery of a bundle of letters written by the testator which a haver, duly examined before the trial, had by an innocent mistake failed to produce but subsequently disclosed. This circumstance, coupled with the fact that the letters themselves were material to the issue, was held to justify a new trial— Bannerman v. Scott, (1846) 9 D. 163. In Byres v. Forbes, (1866) 4 Macph. 388, and in Fletcher v. Wilsons, (1885) 12 R. 883, a new trial was refused notwithstanding the discovery of additional written evidence, but the grounds were either that the document had been in the possession of the party's agent or that the writing was not material. There are also some reported cases in which a new trial has been applied for on the ground of the discovery of additional parole evidence, e.g., Patterson's Trustees v. Johnston, (1816) 1 Mur. 71, at p. 78; Baillie v. Bryson, (1818) 1 Mur. 317; and perhaps also Bell v. Bell, (1810) 2 Mur. 130, at p. 135. No doubt is thrown in any of these cases on the competency of such an application, but in none of them was the application successful.

Now in the present case I see no reason to doubt that the pursuer's preparations for the trial were made with all reasonable diligence, and I think there is no ground for imputing to any fault either of omission or of commission on her part that she had not at an earlier stage got into contact with the two witnesses she now wishes to adduce. Her application is accordingly not met by such cases as that of Paterson v. Stow, 1 Feb. 1817, F.C. But the evidence of these witnesses neither imports into the case any new feature nor puts any new complexion upon it. It is confined in its effect to the further corroboration of the account which the pursuer gave of her accident at the trial—an account which was not destitute of corroboration as it was. In short, it does no more than intensify the conflict of testimony which the trial disclosed. The proposed additional evidence is undoubtedly relevant to the pursuer's case. But can it in these circumstances be regarded as material to the justice of the cause? In deciding that question one must keep in mind the necessity of what Lord President M'Neill in Longworth v. Yelverton ( 3 Macph. 645, at p. 648) called the conclusiveness of proof. If the accidental turning up of an unexpected witness whose parole evidence promises only to afford additional corroboration of the evidence already given for one party, and to add somewhat to the contradiction of evidence already given for the other, is to be regarded as being of sufficient materiality to justify a new trial there would be no end to the multiplication of trials in which a conflict of testimony occurs. The circumstances of this trial present no specialty; they are not tinged by any element of surprise; and the pursuer had every opportunity of collecting evidence. The pursuer's case was adequately and fairly presented to the jury in the evidence which was actually led. I do not think the testimony of the two additional witnesses was necessary to enable a just decision to be reached, and I think the case is one in which the granting of a new trial cannot be justified.

Lord Skerrington—I agree with your Lordship that the expression res noviter veniens ad notitiam as used in the 6th section of the Jury Trials Act 1815 is wide enough to include an application for a new trial made upon the ground of the discovery of new and additional parole evidence since the date of the trial. At the same time it is significant that, although several applications for a new trial on that ground are recorded in the books, it does not appear that any one of them was successful, though in none of them was the competency of such an application objected to. At first sight the case of Bannerman v. Scott's Trustees, 9 D. 163, 1052, 10 D. 353, appeared favourable to the pursuer's application, if only by way of analogy, because in principle it is difficult to distinguish between the discovery of new witnesses and the discovery of letters or other writings which incidentally throw light upon the issue between the parties, e.g., the sanity of a testator at

Page: 185↓