THE GOOD LAW PROJECT JUDGMENT TODAY – TWO PROCEDURAL ISSUES: RELIEF FROM SANCTIONS & THE COURT’S APPROACH TO UNCHALLENGED WITNESS EVIDENCE

The Court of Appeal judgment today in The Good Law Project, R (On the Application Of) v Minister for the Cabinet Office [2022] EWCA Civ will, no doubt, be subject to much legal, and political, scrutiny.  Here I want to look at two specific procedural issues. Firstly the appeal was out of time and relief from sanctions required.  Secondly the court’s approach to witness evidence that is unchallenged.

 

The general rule is that the evidence of a witness is accepted unless given the opportunity to rebut the allegation made against them, or there is undisputed objective evidence inconsistent with that of the witness that cannot sensibly be explained away so that the witness’s testimony is manifestly wrong”

THE CASE

 

The claimant had succeeded in a judicial review in relation to the award of public contracts during the early stages of the Covid crisis. The Minister of the Cabinet office appealed to the Court of Appeal. That appeal was successful.

Practitioners would do well to note the Court of Appeal’s observations that the relaxation of the rules did not exclude the obligation on the parties to file documents before 4.00pm, otherwise they are deemed to arrive the following day.  However the Court of Appeal had little difficulty in granting relief from sanctions.

A Procedural Issue
    1. Good Law submits that the Appellant’s Notice was filed one day late. That is because, although it was filed electronically on the last day allowed by CPR 52.12(2)(b) (30 June 2021) it was not sent by email until 23.47 which was too late. Good Law says that, in accordance with CPR 5.5 and Practice Direction 5B a document sent by email after 16.00 is deemed to have been received the following day: PD5B, paragraph 4.2. The Minister says that the notice was not sent in accordance with Practice Direction 5B but, instead, pursuant to the “Court of Appeal Civil Division urgent business priorities coronavirus update” of 17 May 2021 and in force at the time. This required all documents to be filed with the court electronically and made no mention of any deeming provision. The notice was therefore filed on the last available day, 30 June.
    1. CPR 5.5 and Practice Direction 5B govern the sending and filing of documents by email. Although, pre-pandemic, only some documents could be sent or filed by email, the update made clear that those restrictions had been removed because of the pandemic. Instead, all documents, including the Appellant’s Notice, could be filed by email. But nothing in the update abrogated or modified the rule as to deemed receipt after 16.00 set out in PD5B. Furthermore, the general application of that rule is reiterated by CPR 2.8(5) and the note in the 2021 White Book at para 2.8.5. The Appellant’s Notice was thus filed one day late.
  1. That said, we grant relief from sanctions in accordance with the principles set out in Denton v. TH White Ltd [2014] EWCA Civ 906[2014] 1 WLR 3926. The deemed delay of a day was not serious or significant; the Minister’s late change of mind about appealing provides at least some explanation for the delay; and a consideration of all the circumstances of the case, and in particular the important issues that have been raised by the appeal, makes it just to grant the necessary extension of time.

THE WAY THAT THE COURT TREATS UNCHALLENGED WITNESS EVIDENCE

The Court of Appeal also made observations on the way the courts should treat unchallenged witness evidence.

    1. There is force in the criticism advanced by Sir James that these comments ignore key aspects of the evidence, including Mr Aiken’s (unchallenged) evidence as to the rationale for Public First’s appointment and that use of the RM DPS took six to eight weeks, which was impractical in the circumstances. The judge also effectively rejected Ms Hunt’s unchallenged evidence on what were central issues, including whether there was any other agency that could meet the Minister’s urgent needs.
    1. The general rule is that the evidence of a witness is accepted unless given the opportunity to rebut the allegation made against them, or there is undisputed objective evidence inconsistent with that of the witness that cannot sensibly be explained away so that the witness’s testimony is manifestly wrong. A court hearing a judicial review will generally accept the evidence of the public authority: and will not normally decide contested issues of fact: see, for example, R v. Board of Visitors of Hull Prison ex p St. Germain (No. 2) [1979] 1 WLR 1401 at page 1410H and R (Watkins-Smith) v. Aberdare Girls High School [2008] EWHC 1865 (Admin)[2008] FCR 203 at [135]; R (Safeer) v Secretary of State for the Home Department [2018] EWCA Civ 2518 at [18]).
  1. In the circumstances of this case, there was no basis for rejecting the evidence either of Mr Aiken or Ms Hunt. The Minister was under a duty of candour. The evidence of both Mr Aiken and Ms Hunt was not contradicted by objective evidence elsewhere. Ms Hunt set out in her second witness statement to expand on why each other agency was not suitable, agency by agency and including Jigsaw. Quite apart from Mr Cummings, experienced civil servants, including Mr Aiken who was responsible for letting the contract, knew what services were urgently needed in a public health emergency and were intimately familiar with the market for their provision.