Evidence

Where fresh evidence sought to be adduced was material, credible and related to undiscovered material fraud, the test to be applied was whether the fresh evidence had not reasonably been available to the party seeking to rely on it at the time of the relevant hearing.

For the purposes of summary judgment the test for ‘reasonably availability’ was subjective; it was a test of whether the party or solicitors for the party’s behalf had acted reasonably. In a case of concealed fraud (concealed forgery) it might be, particularly where the source of the evidence was contained in the opposite camp, that, upon analysis of the facts an approach more favourable to the party defrauded in respect of what was due diligence or reasonable diligence might be adopted.