LATE WITNESS STATEMENTS IN JUDICIAL REVIEW PROCEEDINGS: DON'T GO TO COLLEGE – JUST READ THE RULES

June 16, 2015 · by · in Civil evidence, Relief from sanctions, Witness statements

In R (on the application of the London College of Finance & Accounting) -v- Secretary of State for the Home Department [2015] EWHC 1688 (Admin) Mr Justice Cobb made some important observations in relation to the late service of evidence in the Administrative Court.

THE CASE

The Claimant was seeking permission for judicial review and quashing orders of a decision to suspend (and then revoke) its sponsor licence.

KEY POINTS

  • The Civil Procedure Rules set down clear timetables and rules in relation to serving evidence in judicial review proceedings. These must be followed.
  • A party attempting to rely on evidence in breach of the rules should make an application returnable at the hearing if possible.
  • A late application may turn into a case management hearing and costs orders may follow.

THE JUDGE’S OBSERVATIONS IN RELATION TO LATE SERVICE OF EVIDENCE AND CASE MANAGEMENT

“Preliminary issue: Case Management: filing of evidence

  1. Immediately prior to this hearing, a litigation skirmish erupted between the parties concerning the timing, admissibility, and relevance of a bundle of new material on which the Claimant wished to rely in support of its claim. The new material comprised examples of academic course work which had apparently been undertaken by 21 of the Claimant’s students. The material filled a lever arch file, and had been served on the Defendant on 14 May (i.e. two working days before the hearing). Service of the material provoked correspondence from the Defendant’s Legal Department directly to the Court seeking urgent pre-hearing relief namely: either a strike out of the entire claim under CPR 3.4(c), or a direction refusing the Claimant permission to file the material, &/or an adjournment or vacation of the forthcoming hearing, or a direction that the hearing be used for the purposes of permission only. I declined to accede to any of the Defendant’s alternative applications on paper (particularly in the absence of any representations from the Claimant) but informed the parties that I would deal with this issue at the outset of the case.
  2. By way of background, it should be noted that the first attempt at a ‘rolled up’ hearing of this claim (on 16 April before Walker J) was ineffective as a consequence of the failure of the Claimant to comply with case management directions, specifically its failure to file a trial bundle or skeleton argument, or bundle of authorities on time. For this hearing, the Claimant again failed to provide the authorities bundle on time, and when it was provided it was deficient. While the Defendant for her part has not been innocent in this litigation of case management breaches, they have been of a lesser seriousness.
  3. Mr Biggs for the Claimant explained the late service of the coursework material by asserting that the potential significance of coursework was not truly apparent in this evolving area until the handing down of the judgment of Andrews J on 29 April 2015 in the decision of R (Cranford College) v SSHD [2015] EWHC 1090 (Admin) (“the Cranford case”); only then (it was argued) was it clear that a suspicion about non-compliance which had not been allayed by a college could justify revocation. I am not sure that’s right, but in any event, the Defendant had since 24 June 2014 put the Claimant on notice that she had considerable suspicions about the good faith of the students at the Claimant’s college who had apparently cheated in the English language tests, and that these suspicions needed to be allayed; the provision of coursework was (or would have been) one reasonable way of attempting to meet the point. The apparent gap in the evidence was further pointed up in the Defendant’s skeleton argument for the last ineffective hearing (16 April 2015), and this material could therefore have been filed by 23 April (the final date by which the Claimant was permitted to file its final evidence). Indeed, coursework had in fact been filed in the Cranford case (above) and in R (City of London Academy) v SSHD [2015] EWHC 749 (Admin) for just such a purpose; the Claimant here is represented by the same counsel as in those two cases. The Claimant accepted that it had given no warning to the Defendant that it proposed to serve this material, which was additionally acknowledged to have been unhelpful.
  4. The Defendant opposed the admission of this material at this stage of the case; she argued that she had had no meaningful opportunity to consider it before the hearing, and submitted that it would be unfair if the material were to be taken into account, given its late service. The Defendant drew attention to the Claimant’s solicitors’ repeated failures to comply with case management directions in this case and in parallel litigation all relating to colleges whose licences had been revoked in similar circumstances. From his cursory review of the disputed documentation, Mr Dunlop was nonetheless able to draw attention to some superficially surprising features of the contents of the coursework and the manner by which it had been appraised by the Claimant’s staff. (It is perhaps noteworthy that in City of London Academy and Cranford (above), production of coursework in fact undermined rather than enhanced the Claimants’ claims).
  5. Having heard argument, I considered that I should receive this file of material but consider it only if, or when, required to do so, and then decide (if at all appropriate) whether (and if so on what terms, and for what purpose) it should be formally filed in these proceedings. In fact, when Mr Biggs addressed in oral argument the issue of the competence of the students in the English language, he conceded that the coursework material was of limited relevance; he did not ask me to consider it, and placed no reliance upon it. Mr. Dunlop sought to make some capital out of the limited discoveries he had made about its surprising content; however without a proper review of the totality of the material, I could reach no conclusions one way or another.
  6. In this case, as in others which raise similar issues, I recognise that the Defendant will continue to monitor compliance by colleges with the Sponsor Guidance where licences for those colleges have been suspended. That may indeed lead (as happened here) to further evidence coming to light which affects the view taken of the gravity of the alleged breaches; it may cause the Defendant to lift the suspension, or convert a decision to suspend into a decision to revoke, or a decision to revoke on one ground into a decision to revoke based on further or other grounds. As Andrews J observed in Cranford, a failure to reconsider the situation in light of further evidence could give rise to a justifiable complaint of unfairness. While this process may be vexing for the Claimants and their lawyers, and can disrupt the carefully laid case management directions where proceedings are afoot, it nonetheless calls for pragmatic responses and a degree of flexibility on all sides (see [47-50] below). Provided that the Claimant knows the case it has to meet, and no injustice is done, then the court should take a practical stance in relation to the evolution of the claim and the evidence.
  7. However, this skirmishing, which raised the temperature and probable cost of the litigation and represented an unwelcome diversion from the main suit, would have been avoidable if only a few simple points had been observed:

i) CPR 54.16 could not be clearer. It provides that no written evidence may be relied on unless it has been served in accordance with any rule, or direction of the Court, or the court gives permission. This rule must be faithfully and strictly observed;ii) Specific orders had been made in relation to the filing of evidence in this claim. Walker J on 16 April had directed that: “[t]he Claimant has permission to file and serve further evidence, provided that it is filed and served by 4.30pm on 23 April 2015″ (emphasis by underlining added). The material on which the Claimant wished to rely was sent to the Court and served on the Defendant well outside that time limit. Orders, including interlocutory orders, for the filing and service of evidence must be obeyed and complied with to the letter and on time. As Sir James Munby P said at [51] of Re W [2013] EWCA Civ 1177, court orders “…are not preferences, requests or mere indications; they are orders”; there is a public interest in enforcing compliance with court orders, particularly where the breach is serious &/or significant (see Mitchell v News Group Newspapers Ltd[2013] EWCA Civ 1537; Denton v TH White Ltd & Others [2014] EWCA Civ 906);

iii) Any party in a judicial review claim who seeks to adduce evidence outside the parameters of CPR 54.16 is under an obligation to apply to the court to adduce that evidence or where relevant for a variation of the order granting permission to file: see [53] of Re W(above): “A person who finds himself unable to comply timeously with his obligations under an order should apply for an extension of time before the time for compliance has expired.” (emphasis in the original);

iv) If it is possible and practicable, any application for permission to rely on new evidence should be determined before the substantive listed hearing, so that the parties and the Court know where they stand and what they have to read;

v) If it is not possible or practicable to make a decision on the admissibility of the new evidence before the hearing, the court may have to consider converting the substantive or rolled-up hearing to a case-management hearing; costs orders may follow;

vi) In order to promote the efficient and proportionate conduct of litigation, parties are not merely required to comply with the rules and court orders, they are also obliged to co-operate with each other;

vii) Within the framework of the Rules, the Administrative Court retains powers to manage its cases flexibly and in accordance with the overriding objective; in this regard it will ensure that no unfairness is caused to the parties.”

RELATED POSTS

Procedure and judicial review

Late service of witness evidence

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