CA 2024 002410 - [2025] EWCA Civ 1374

Before turning to the grounds of appeal in more detail, I will address Westfield’s application dated 20 December 2024. It seeks to rely upon fresh evidence in relation to the question of whether the Coal Authority (now known as Mining Remediation Authority) was capable of reducing or limiting a zone of influence on a case by case basis. Westfield seeks to rely upon Chapter 14 of the Construction Industry Research and Information Association’s “Abandoned Mine Workings Manual” (the “Manual”) and, in particular, upon chapter 14.2. It is said that Chapter 14 of the Manual satisfies the criteria for the admission of fresh evidence because: (i) the Manual could not have been obtained with reasonable diligence for use at the trial, because the question of whether the Coal Authority had the power to reduce zones of influence was not in issue until the matter was raised by the judge during closing submissions; (ii) the Manual would have had an important influence on the result of the trial because it shows that zones of influence could be reduced by the Coal Authority; and (iii) it is to be believed and is from a credible source.

Although chapter 14.2 is concerned with “risk zones” Mr Jackson submitted that they are the same as a zone of influence and that the chapter suggests that they can be reduced. He took us to a letter from RSK Geosciences to Harworth dated 1 October 2021 in which RSK Geosciences “appraise[d] the proposed risk assessment regarding the zone of influence” of the two mineshafts at the Holiday Park. When addressing the requirement for “a stand-off or sterilisation zone” RSK Geosciences made reference to “CIRIA C758” which Mr Jackson says is a reference to the Manual. Subsequently, RSK Geosciences made enquiries of the Coal Authority and in its response of 21 April 2022, the Coal Authority stated that “an alternative to the determination of the zone of influence adopted in CIRIA C758D is justified.” Mr Jackson submitted, therefore, that the Manual is directly relevant and satisfies the criteria for the admission of fresh evidence on an appeal.

In my judgment, the Manual and chapter 14.2, in particular, does not satisfy the criteria. Although CIRIA C758 appears to have been referred to both by RSK Geosciences and the Coal Authority in correspondence, we have no direct evidence as to whether the Manual is, in fact, an authoritative source. Furthermore, it is not clear to me that chapter 14.2 is relevant to the ability of the Coal Authority to alter or reduce a zone of influence. It is concerned with the location of disused mine shafts and the determination of the “perceived risk zone” and the “potential cone of collapse”. Although the factors which are considered might be relevant to the reduction of a zone of influence, chapter 14.2 does not address whether the Coal Authority has or had such a power. In the circumstances, therefore, it is not clear that it would have had an important influence on the result of the trial.

In the circumstances, it is not necessary to consider the witness statement and exhibits filed on behalf of Harworth in opposition to the application. I should add that even if admitted, those witness statements would be of no real evidential value. In particular, the witness statement of Gareth Thomas dated 3 February 2025 seeks to admit into evidence a second-hand account of the Coal Authority’s position. It does so by detailing and evidencing discussions between Mr Thomas and his former colleague who works for that organisation.