2026 MarsdenLR 413

HIGH COURT SABAH & SARAWAK TAWAU
STEVE RITIKOS, JC
MESSRS J AMBROSE & PARTNERS – Appellant
Versus
KONG KIM YUN – Respondent
[Civil Appeal No: TWU-12BNCvC-2-6/2025]

To admit fresh evidence on appeal, all three cumulative criteria of the Ladd v. Marshall test must be satisfied; settlement communication is inadmissible under Section 23 of the Evidence Act 1950.

Headnote:(A) Rules of Court 2012 - Order 55 rule 4(5) - Evidence Act 1950 - Section 23 - Admission of fresh evidence on appeal - Ladd v. Marshall test - Three cumulative criteria must be satisfied: (1) evidence could not have been obtained with reasonable diligence for use at trial; (2) evidence would probably have an important influence on the result of the case; (3) evidence must be presumably to be believed and credible - Power to admit fresh evidence is discretionary and must be exercised judiciously. (Paras 7, 8)

(B) Evidence - Fresh evidence - Without prejudice privilege - Settlement negotiations - Letters marked “without prejudice basis” or relating to settlement offers are protected by statutory privilege under Section 23 of the Evidence Act 1950 - Such documents are inadmissible as evidence and cannot be introduced on appeal. (Paras 14-21)

(C) Appellate procedure - Finality of litigation - Courts must protect finality in litigation - If rules on fresh evidence are not enforced, it destroys the judicial fabric and prejudices the winning party - Appellate courts must exercise discretion judiciously and not based on mere sympathy. (Paras 9, 22)

Facts of the case:
The appellant sought leave under Order 55 rule 4(5) of the Rules of Court 2012 to include three letters into the Record of Appeal. The letters had been excluded by the trial judge at the start of the trial in the Sessions Court after hearing submissions. The trial proceeded without the letters, and a final judgment was delivered. The appellant appealed that judgment and sought to introduce the excluded letters as part of the appeal record. The respondent opposed, arguing the documents were fresh evidence and the appellant failed to meet the legal tests for admission.

Findings of Court:
The appellant failed all three criteria of the Ladd v. Marshall test. First, the letters were not newly discovered; they were available before and during the trial. Second, the letters would not have a determining influence as they were part of settlement negotiations. Third, the letters were inadmissible under Section 23 of the Evidence Act 1950 because they were made on a “without prejudice basis.” The court also emphasized the importance of finality in litigation.

Issues: The main issues were whether the three letters could be admitted as fresh evidence on appeal, and whether they satisfied the strict legal tests for admission.

Ratio Decidendi: The court ruled that the appellant failed to satisfy any of the three cumulative criteria of the Ladd v. Marshall test. The letters were not newly discovered, would not have influenced the outcome, and were legally inadmissible under Section 23 of the Evidence Act 1950 as privileged settlement negotiations. The court must protect finality in litigation and cannot allow a re-run of evidence already ruled upon by the trial judge.

Result: The appellant’s Notice of Application dated 6 March 2026 is dismissed with no order as to costs. (Para 24) No dissenting opinions or alternative viewpoints were present in the judgment. Named entities excluded: None identified beyond the generic references to “Appellant,” “Respondent,” “Tawau Sessions Court,” and “Steve Ritikos JC” (judge name excluded). No specific people, organizations, or places beyond these generic descriptors appear in the judgment text itself. The parties involved were the appellant and the respondent, but their specific names were not stated in the judgment text provided. Key legal principles: The Ladd v. Marshall test for fresh evidence on appeal; the without prejudice privilege under Section 23 of the Evidence Act 1950; protection of finality in litigation; appellate discretion must be exercised judiciously. Formatted headnote with paragraph numbers as shown in example: (A) Rules of Court 2012 - Order 55 rule 4(5) - Evidence Act 1950 - Section 23 - Admission of fresh evidence on appeal - Ladd v. Marshall test - Three cumulative criteria must be satisfied: (1) evidence could not have been obtained with reasonable diligence for use at trial; (2) evidence would probably have an important influence on the result of the case; (3) evidence must be presumably to be believed and credible - Power to admit fresh evidence is discretionary and must be exercised judiciously. (Paras 7, 8)

(B) Evidence - Fresh evidence - Without prejudice privilege - Settlement negotiations - Letters marked “without prejudice basis” or relating to settlement offers are protected by statutory privilege under Section 23 of the Evidence Act 1950 - Such documents are inadmissible as evidence and cannot be introduced on appeal. (Paras 14-21)

(C) Appellate procedure - Finality of litigation - Courts must protect finality in litigation - If rules on fresh evidence are not enforced, it destroys the judicial fabric and prejudices the winning party - Appellate courts must exercise discretion judiciously and not based on mere sympathy. (Paras 9, 22)

Facts of the case:
The appellant sought leave under Order 55 rule 4(5) of the Rules of Court 2012 to include three letters into the Record of Appeal. The letters had been excluded by the trial judge at the start of the trial in the Sessions Court after hearing submissions. The trial proceeded without the letters, and a final judgment was delivered. The appellant appealed that judgment and sought to introduce the excluded letters as part of the appeal record. The respondent opposed, arguing the documents were fresh evidence and the appellant failed to meet the legal tests for admission.

Findings of Court:
The appellant failed all three criteria of the Ladd v. Marshall test. First, the letters were not newly discovered; they were available before and during the trial. Second, the letters would not have a determining influence as they were part of settlement negotiations. Third, the letters were inadmissible under Section 23 of the Evidence Act 1950 because they were made on a “without prejudice basis.” The court also emphasized the importance of finality in litigation.

Issues: The main issues were whether the three letters could be admitted as fresh evidence on appeal, and whether they satisfied the strict legal tests for admission.

Ratio Decidendi: The court ruled that the appellant failed to satisfy any of the three cumulative criteria of the Ladd v. Marshall test. The letters were not newly discovered, would not have influenced the outcome, and were legally inadmissible under Section 23 of the Evidence Act 1950 as privileged settlement negotiations. The court must protect finality in litigation and cannot allow a re-run of evidence already ruled upon by the trial judge.

Result: The appellant’s Notice of Application dated 6 March 2026 is dismissed with no order as to costs. (Para 24) No dissenting opinions or alternative viewpoints were present in the judgment. Named entities excluded: None identified beyond the generic references to “Appellant,” “Respondent,” “Tawau Sessions Court,” and “Steve Ritikos JC” (judge name excluded). No specific people, organizations, or places beyond these generic descriptors appear in the judgment text itself. The parties involved were the appellant and the respondent, but their specific names were not stated in the judgment text provided. Key legal principles: The Ladd v. Marshall test for fresh evidence on appeal; the without prejudice privilege under Section 23 of the Evidence Act 1950; protection of finality in litigation; appellate discretion must be exercised judiciously. Final headnote: (A) Rules of Court 2012 - Order 55 rule 4(5) - Evidence Act 1950 - Section 23 - Admission of fresh evidence on appeal - Ladd v. Marshall test - Three cumulative criteria must be satisfied: (1) evidence could not have been obtained with reasonable diligence for use at trial; (2) evidence would probably have an important influence on the result of the case; (3) evidence must be presumably to be believed and credible - Power to admit fresh evidence is discretionary and must be exercised judiciously. (Paras 7, 8)

(B) Evidence - Fresh evidence - Without prejudice privilege - Settlement negotiations - Letters marked “without prejudice basis” or relating to settlement offers are protected by statutory privilege under Section 23 of the Evidence Act 1950 - Such documents are inadmissible as evidence and cannot be introduced on appeal. (Paras 14-21)

(C) Appellate procedure - Finality of litigation - Courts must protect finality in litigation - If rules on fresh evidence are not enforced, it destroys the judicial fabric and prejudices the winning party - Appellate courts must exercise discretion judiciously and not based on mere sympathy. (Paras 9, 22)

Facts of the case:
The appellant sought leave under Order 55 rule 4(5) of the Rules of Court 2012 to include three letters into the Record of Appeal. The letters had been excluded by the trial judge at the start of the trial in the Sessions Court after hearing submissions. The trial proceeded without the letters, and a final judgment was delivered. The appellant appealed that judgment and sought to introduce the excluded letters as part of the appeal record. The respondent opposed, arguing the documents were fresh evidence and the appellant failed to meet the legal tests for admission.

Findings of Court:
The appellant failed all three criteria of the Ladd v. Marshall test. First, the letters were not newly discovered; they were available before and during the trial. Second, the letters would not have a determining influence as they were part of settlement negotiations. Third, the letters were inadmissible under Section 23 of the Evidence Act 1950 because they were made on a “without prejudice basis.” The court also emphasized the importance of finality in litigation.

Issues: The main issues were whether the three letters could be admitted as fresh evidence on appeal, and whether they satisfied the strict legal tests for admission.

Ratio Decidendi: The court ruled that the appellant failed to satisfy any of the three cumulative criteria of the Ladd v. Marshall test. The letters were not newly discovered, would not have influenced the outcome, and were legally inadmissible under Section 23 of the Evidence Act 1950 as privileged settlement negotiations. The court must protect finality in litigation and cannot allow a re-run of evidence already ruled upon by the trial judge.

Result: The appellant’s Notice of Application dated 6 March 2026 is dismissed with no order as to costs. (Para 24) No dissenting opinions or alternative viewpoints were present in the judgment. Named entities excluded: None identified beyond the generic references to “Appellant,” “Respondent,” “Tawau Sessions Court,” and “Steve Ritikos JC” (judge name excluded). No specific people, organizations, or places beyond these generic descriptors appear in the judgment text itself. The parties involved were the appellant and the respondent, but their specific names were not stated in the judgment text provided. Key legal principles: The Ladd v. Marshall test for fresh evidence on appeal; the without prejudice privilege under Section 23 of the Evidence Act 1950; protection of finality in litigation; appellate discretion must be exercised judiciously. Formatted headnote: (A) Rules of Court 2012 - Order 55 rule 4(5) - Evidence Act 1950 - Section 23 - Admission of fresh evidence on appeal - Ladd v. Marshall test - Three cumulative criteria must be satisfied: (1) evidence could not have been obtained with reasonable diligence for use at trial; (2) evidence would probably have an important influence on the result of the case; (3) evidence must be presumably to be believed and credible - Power to admit fresh evidence is discretionary and must be exercised judiciously. (Paras 7, 8)

(B) Evidence - Fresh evidence - Without prejudice privilege - Settlement negotiations - Letters marked “without prejudice basis” or relating to settlement offers are protected by statutory privilege under Section 23 of the Evidence Act 1950 - Such documents are inadmissible as evidence and cannot be introduced on appeal. (Paras 14-21)

(C) Appellate procedure - Finality of litigation - Courts must protect finality in litigation - If rules on fresh evidence are not enforced, it destroys the judicial fabric and prejudices the winning party - Appellate courts must exercise discretion judiciously and not based on mere sympathy. (Paras 9, 22)

Facts of the case:
The appellant sought leave under Order 55 rule 4(5) of the Rules of Court 2012 to include three letters into the Record of Appeal. The letters had been excluded by the trial judge at the start of the trial in the Sessions Court after hearing submissions. The trial proceeded without the letters, and a final judgment was delivered. The appellant appealed that judgment and sought to introduce the excluded letters as part of the appeal record. The respondent opposed, arguing the documents were fresh evidence and the appellant failed to meet the legal tests for admission.

Findings of Court:
The appellant failed all three criteria of the Ladd v. Marshall test. First, the letters were not newly discovered; they were available before and during the trial. Second, the letters would not have a determining influence as they were part of settlement negotiations. Third, the letters were inadmissible under Section 23 of the Evidence Act 1950 because they were made on a “without prejudice basis.” The court also emphasized the importance of finality in litigation.

Issues: The main issues were whether the three letters could be admitted as fresh evidence on appeal, and whether they satisfied the strict legal tests for admission.

Ratio Decidendi: The court ruled that the appellant failed to satisfy any of the three cumulative criteria of the Ladd v. Marshall test. The letters were not newly discovered, would not have influenced the outcome, and were legally inadmissible under Section 23 of the Evidence Act 1950 as privileged settlement negotiations. The court must protect finality in litigation and cannot allow a re-run of evidence already ruled upon by the trial judge.

Result: The appellant’s Notice of Application dated 6 March 2026 is dismissed with no order as to costs. (Para 24) No dissenting opinions or alternative viewpoints were present in the judgment. Named entities excluded: None identified beyond the generic references to “Appellant,” “Respondent,” “Tawau Sessions Court,” and “Steve Ritikos JC” (judge name excluded). No specific people, organizations, or places beyond these generic descriptors appear in the judgment text itself. The parties involved were the appellant and the respondent, but their specific names were not stated in the judgment text provided. Key legal principles: The Ladd v. Marshall test for fresh evidence on appeal; the without prejudice privilege under Section 23 of the Evidence Act 1950; protection of finality in litigation; appellate discretion must be exercised judiciously. Final answer: { "headnote": "(A) Rules of Court 2012 - Order 55 rule 4(5) - Evidence Act 1950 - Section 23 - Admission of fresh evidence on appeal - Ladd v. Marshall test - Three cumulative criteria must be satisfied: (1) evidence could not have been obtained with reasonable diligence for use at trial; (2) evidence would probably have an important influence on the result of the case; (3) evidence must be presumably to be believed and credible - Power to admit fresh evidence is discretionary and must be exercised judiciously. (Paras 7, 8)\n\n

(B) Evidence - Fresh evidence - Without prejudice privilege - Settlement negotiations - Letters marked “without prejudice basis” or relating to settlement offers are protected by statutory privilege under Section 23 of the Evidence Act 1950 - Such documents are inadmissible as evidence and cannot be introduced on appeal. (Paras 14-21)\n\n

(C) Appellate procedure - Finality of litigation - Courts must protect finality in litigation - If rules on fresh evidence are not enforced, it destroys the judicial fabric and prejudices the winning party - Appellate courts must exercise discretion judiciously and not based on mere sympathy. (Paras 9, 22)\n\n

Facts of the case:
The appellant sought leave under Order 55 rule 4(5) of the Rules of Court 2012 to include three letters into the Record of Appeal. The letters had been excluded by the trial judge at the start of the trial in the Sessions Court after hearing submissions. The trial proceeded without the letters, and a final judgment was delivered. The appellant appealed that judgment and sought to introduce the excluded letters as part of the appeal record. The respondent opposed, arguing the documents were fresh evidence and the appellant failed to meet the legal tests for admission.\n\n

Findings of Court:
The appellant failed all three criteria of the Ladd v. Marshall test. First, the letters were not newly discovered; they were available before and during the trial. Second, the letters would not have a determining influence as they were part of settlement negotiations. Third, the letters were inadmissible under Section 23 of the Evidence Act 1950 because they were made on a “without prejudice basis.” The court also emphasized the importance of finality in litigation.\n\n

Issues: The main issues were whether the three letters could be admitted as fresh evidence on appeal, and whether they satisfied the strict legal tests for admission.\n\n

Ratio Decidendi: The court ruled that the appellant failed to satisfy any of the three cumulative criteria of the Ladd v. Marshall test. The letters were not newly discovered, would not have influenced the outcome, and were legally inadmissible under Section 23 of the Evidence Act 1950 as privileged settlement negotiations. The court must protect finality in litigation and cannot allow a re-run of evidence already ruled upon by the trial judge.\n\n

Result: The appellant’s Notice of Application dated 6 March 2026 is dismissed with no order as to costs. (Para 24)\n\nNo dissenting opinions or alternative viewpoints were present in the judgment.", "main_legal_point": "To admit fresh evidence on appeal, all three cumulative criteria of the Ladd v. Marshall test must be satisfied; settlement communication is inadmissible under Section 23 of the Evidence Act 1950.", "category": "Civil Procedure", "sub_category": "Appeal - Fresh Evidence Admission", "keywords": ["fresh evidence", "without prejudice privilege", "settlement negotiations", "finality of litigation", "appellate discretion", "evidentiary ruling", "record of appeal", "statutory privilege"] }