HOME SECRETARY REFUSED PERMISSION TO SERVE EVIDENCE LATE: THE OVERRIDING OBJECTIVE WAS USED EVEN IF DENTON DID NOT APPLY
In Teh v Secretary of State for the Home Department  EWHC 1586 (Admin) the Secretary of State was refused permission to rely on evidence served late. The issue was decided under the Overriding Objective, rather than by reference to the Denton principles.
“There is no good reason why the defendant did not serve this new evidence earlier. To admit is now, would lead to cost and delay, for the claimant would need an opportunity to respond to it”
The Claimant was appealing an order that he could not have permission to remain in the UK. An order was made that the defendant Secretary of State file evidence to clarify matters. The evidence filed went well beyond that envisaged in the court order. The court refused the Secretary of State permission to rely upon it.
THE JUDGMENT ON THIS ISSUE
On the day after the hearing of this case, the defendant filed an application to adduce additional evidence, comprising a witness statement dated 18 June 2018 from Colin Wells, a case reviewer in the Home Office Litigation Operations and Subject Access Directorate of the Home Office. This was in response to a direction that I made at the hearing, requiring the defendant to clarify the dates and current status of a number of the documents on which the defendant relies on this issue, as they were unclear from the material then before the court. To the extent that this additional evidence does that, I admit it under CPR 54.16(2)(a)(ii). However, the defendant’s application to rely on additional evidence went further than clarifying the dates and current status of the documents already before the court and included new material. Mr Singh QC objected to the admissibility of this new material. I uphold Mr Singh’s objection and refuse permission for the defendant to rely on this new material. I do so for the following reasons, which in substance reflect Mr Singh QC’s written submissions served, in compliance with my direction, on 20 June 2018.
Permission to apply for judicial review in this case was granted by Karon Monaghan QC, sitting as a deputy High Court judge, on 1 March 2018. She made the standard direction that the defendant serve her detailed grounds and any written evidence within 35 days of her order. The defendant filed her detailed grounds on 19 April 2018, and the court retrospectively granted her an extension of time for that. However, the defendant filed no written evidence.
CPR 54.16(2) provides that no written evidence may be relied on unless (a) it has been served in accordance with any (i) rule under this Section; or (ii) direction of the court; or (b) the court gives permission. Mr Singh QC submits that the relief from sanctions principles in CPR 3.9 and in Denton v TH White Ltd  EWCA Civ 906  1 3926 apply by analogy, relying on R (Hysaj) v Home Secretary  EWCA Civ 1633  1 WLR 2472. I am not sure about that. The wording of CPR 54.16(2)(b) is on its face neutral. I am reluctant to decide such a point raised only in post hearing submissions unless it is necessary to do so, and I do not think it is necessary to do so here. That is because in my view, even if the Dentonprinciples do not apply, either directly or by analogy, the overriding objective in CPR 1.1 undoubtedly does. The new material (by which I mean the material that does beyond clarifying the dates and current status of documents already before the court) consists of evidence which the defendant served in the case of R (Ku) v Home Secretary  EWHC 3881 (Admin), extracts from Hansard, correspondence between the UK and Malaysian authorities in 2011 and a Malaysian newspaper article dated 4 April 2014. This last item is, as Mr Singh points out, ironic, for it is the same newspaper article which the claimant submitted in support of his own application and which the defendant’s refusal letter said had not been taken into account because it did not emanate from an official source (paragraphs 23 above and 56(b) below refer). All this material has long been available to the defendant. There is no good reason why the defendant did not serve this new evidence earlier. To admit is now, would lead to cost and delay, for the claimant would need an opportunity to respond to it. The new material is far from decisive, not least because it is several years old. My refusal to admit this evidence in the present case does not prevent the defendant from adducing the material in another case, if she thinks that it is significant. In these circumstances, to admit it would in my judgment be contrary to each of paragraphs (b)-(f) of CPR 1.1(2).