DENTON, APPLICATIONS, THE COURT OF APPEAL AND THE ADMINISTRATIVE COURT: WHEN THE COURT TELLS YOU THAT SPECIFIC APPLICATIONS ARE NEEDED IT IS A GOOD IDEA TO MAKE THEM

July 19, 2021 · by · in Appeals, Applications, Relief from sanctions

In Mahmud, R (On the Application Of) v Upper Tribunal (Immigration and Asylum Chamber) [2021] EWCA Civ 1004 the Court of Appeal sent out a reminder that the need to comply with the Civil Procedure Rules extends to the Administrative Court. Further when the courts are sending out orders reminding an appellant of the need to comply with the rules there is a marked lack of wisdom in failing to follow the orders.

 

“… the procedural requirements set out in the Civil Procedure Rules apply to all cases including public law cases. The requirements are designed to achieve fairness for both sides, and to enable the Court to deal with the case justly in accordance with the overriding objective.”

THE CASE

The appellant appealed against a decision in an immigration case.  As part of the appeal he wished to raise new grounds and adduce new evidence.  No application was made to amend the appellant’s notice, nor to adduce new evidence.  The Court of Appeal did not grant permission when the applications were made in court.

 

THE JUDGMENT ON THIS ISSUE

Lord Justice Dingemans noted the procedural position.  In particular the Court had made several orders stating that specific applications had to be made. Neither had been complied with.

41. By order dated 14 December 2020 Lewis LJ granted permission to appeal. A stay to await the proceedings in DK and RK (India) was not granted. The experience of the courts has been that granting stays in all cases in litigation such as the TOEIC litigation can create unnecessary work for the parties and the courts in identifying which points apply to which cases, and lead to delay which is detrimental to the interests of the parties and courts, in circumstances where each case is, as has been emphasised in all the TOEIC cases, sensitive to its own facts.
    1. Permission was then requested on behalf of Mr Mahmud to rely on a supplementary Skeleton Argument dated 29 March 2021. In that supplementary Skeleton Argument it appeared that permission was no longer sought to rely on the NAO, APPG and PAC reports but that permission would be sought to rely on the evidence given to the APPG on 11 June 2019 by Professor Peter Sommer, Dr Philip Harrison and Professor Peter French. This approach mirrored the approach which had been taken in the Upper Tribunal in RK and DK (India) and the transcript of the evidence given had become available following the decision of the Upper Tribunal in that case in January 2021.
    1. By an order dated 3 May 2021 Lewis LJ noted the apparent confusion about what fresh evidence was intended to be relied on at the appeal, and directed Mr Mahmud to the provisions of CPR 52.21, which provides that an appeal is limited to the evidence before the lower court unless the appeal court otherwise ordered. Lewis LJ also pointed out that permission needed to be obtained to amend the appellant’s notice, pursuant to CPR 52.17. Lewis LJ stated that an application to adduce fresh evidence or to amend the appellant’s notice should be made as soon as possible.
    1. By a further order dated 12 May 2021 Lewis LJ reminded the appellant of the need to make a proper application and adjourned consideration of the application to rely on the supplementary Skeleton Argument dated 29 March 2021 so that it could be considered with any application to adduce fresh evidence or to amend the appellant’s notice. Lewis LJ drew attention to the need for procedural rigour in appeals in public law cases and referred to R(Talpada) v Secretary of State for the Home Department [2018] EWCA Civ 841.
    1. By the time of the hearing before this court no formal application to rely on fresh evidence had been made on behalf of Mr Mahmud. Instead Mr Turner sought to rely on a re-amended appellant’s notice dated 19 May 2021 to adduce as fresh evidence “the transcript from the APPG meetings, further to the request of June 2020”. Mr Turner had also put in a document headed “Appellant’s Response Further to the Application to Amend his Skeleton Argument” dated 14 June 2021. In that document Mr Turner referred to the problem in R(Talpada) which was an evolving challenge, and made the point that the challenge in this case remained the same.
    1. As Mr Turner recognised in his oral submissions, there had been a failure to make an application on behalf of Mr Mahmud to rely on fresh evidence which complied with CPR 52.21 or an application to amend the appellant’s notice which complied with CPR 52.17. In effect Mr Turner was seeking on behalf of Mr Mahmud relief from the sanction of failing to make a proper application to adduce the evidence, so that the approach set out in Denton v TH White Limited [2014] EWCA Civ 906; [2014] 1 WLR 3926 is relevant. This involves: consideration of the seriousness of the failure to comply with the rule; consideration of why the default occurred; and an evaluation of all the circumstances of the case.
    1. In my judgment the failure to make an application to adduce the fresh evidence was a serious procedural failing. This is because Lewis LJ had pointed out in two separate orders the importance of complying with the rules, and yet by the time of the hearing there was still no application which complied with the rules. Mr Turner was right to note that this was not an appeal in which there were evolving grounds of challenge, but what has been said in cases such as R(Talpada) about the need for procedural rigour goes beyond that particular issue and the procedural requirements set out in the Civil Procedure Rules apply to all cases including public law cases. The requirements are designed to achieve fairness for both sides, and to enable the Court to deal with the case justly in accordance with the overriding objective.
    1. There was no reason advanced to justify or explain why these serious procedural defaults occurred. It is apparent that Mr Mahmud himself does not appear to have been responsible for the failings, because it is apparent that from June 2020 that Mr Mahmud had been intending to rely on fresh evidence. By way of mitigation for those representing Mr Mahmud, it might also be pointed out that it appears that they were attempting to pick up developments from the case of DK and RK (India) in the Upper Tribunal where it had been held that some of the reports were covered by Parliamentary privilege, and this might have made some contribution to the current procedural difficulties. After the hearing of the appeal Mr Turner sent in a witness statement dated 28 June 2021 from a lawyer assisting with the preparation of the appeal. It appears that in a previous case no objection had been taken to the amendment of the appellant’s notice without permission, and an email had been sent to the office following the order made by Lewis LJ. This does not amount to a good reason for failing to make a proper application to rely on fresh evidence.
    1. I turn then to evaluate all of the circumstances of the case. These circumstances include the merits of the application to adduce fresh evidence in this case, and the Ladd v Marshall criteria. In this respect it is apparent that there was no good reason for not applying to adduce the reports before HHJ Jarman QC when he was considering the Cart application for judicial review. All of the reports had been published, and the evidence and submissions on which the reports were based had been heard in public. Mr Turner, who was not representing Mr Mahmud at that stage of the proceedings, was unable to offer any explanation for the failure to seek to adduce the evidence before HHJ Jarman QC. There is no witness evidence to explain the failure. It is difficult to resist the inference that it was not thought at this time that the existence of the reports, which was well-known to all involved in TOEIC litigation, was relevant in the particular circumstances of this case.
    1. Further, in my judgment, the fresh evidence on which Mr Mahmud seeks to rely on the hearing of this appeal, namely the transcripts of evidence given to the APPG, would not have an important influence on the appeal. It is apparent that some of the evidence in the transcripts is directed to the process by which the evidence on behalf of the Home Office came to be presented, and there was evidence directed to the failing of ETS, and those contracted to ETS, and the consequences for the reliability of the evidence from ETS. Although the evidence did identify the absence of information provided from ETS, and although Mr Turner highlighted the absence of continuity evidence relating to the voice tape from ETS, none of the evidence in the transcript descended into detail about the coincidence of the numbering of the voice file in Mr Mahmud’s case with the numbering on the test result, which was a point which had been relied on by the FTT judge. The evidence on which Mr Turner sought to rely was at a high level of generality and did not, for understandable reasons, descend to explain away the evidence which the FTT Judge had considered decisive. In the case of Mr Mahmud this included the journey which took him past other English language test centres and to a test centre where every result that day was either invalid or questionable. This was a case where the FTT Judge had heard Mr Mahmud’s explanations for taking his test at a College where there were a very significant number of invalid tests and did not accept it. In these circumstances the fresh evidence would not have afforded a basis for allowing the appeal. It might be noted that, even if the fresh evidence had been admitted the court might, as a matter of fairness to the Secretary of State have had to consider taking account of the fact that it was common ground that Mr Mahmud had not scored sufficient marks to pass the earlier English language test referred to in paragraph 20 above. As it is this point does not arise because the fresh evidence is not admitted.
    1. In these circumstances, in my judgment, the fresh evidence should not be admitted on this particular appeal. This is because, even if all of the procedural failings are ignored, it would not affect the fact specific outcome in this case. As noted above when I referred to the history of the TOEIC litigation, the result in any TOEIC case will be fact specific, and this decision is specific to Mr Mahmud’s case.
Conclusion
  1. For the detailed reasons given above I would refuse to admit the fresh evidence on appeal and I would dismiss the appeal.
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