“…h the first court approached and came to its decision”. The judge ought to have applied the test adumbrated by Lord Phillips MR in Hamilton v. Al Fayed (No. 2) [2001] EMLR 15 (Hamilton) at [26] and [34] to the effect that it had to be shown that there was a real danger that the dishonest conduct had affected the outcome.…”
“…h 52). The Ladd v Marshall criteria remain important (‘powerful persuasive authority’) but do not place the court in a straitjacket (Hamilton v Al-Fayed (No 4) [2001] EMLR 15 per Lord Phillips MR as he then was at paragraph 11). The learning shows, in my judgment, that the Ladd v Marshall criteria are no longer primary rules, effect…”