ATTEMPTING TO GIVE NEW EVIDENCE WHEN THE ADVOCATE IS MAKING SUBMISSIONS: ANOTHER ISSUE IN THE POST OFFICE CASE

The recent post about the decision in Karimi, R (On the Application Of) v Sheffield City Council [2024] EWHC 93 (Admin), caused me to review another earlier blog post about the Post Office case.  It concerned an attempt to introduce new evidence to the court by way of written submissions.  The Post Office are far from the only litigant to fall foul of this principle, however its attempts were particularly egregious.

 

“Submissions should not contain evidence, or positive evidential assertions, that are not present in the evidence served in the trial. This is a fundamental point…It is not appropriate for detailed factual assertions to be made in closing submissions that are not directly referable to evidence in the case. There is no way such factual assertions can be tested; if they come in closing submissions, there is no way that the opposing party can deal with those assertions in their own evidence, or even put relevant points to witnesses for the other party in cross-examination.”

THE RELEVANT PART OF THE KARIMI JUDGMENT

Karimi, R (On the Application Of) v Sheffield City Council [2024] EWHC 93 (Admin) Fordham J allowed a party to rely on a skeleton argument that was served late.  However those submissions attempted to introduce new evidence that had not been placed before the court.

11. In the circumstances, I allowed Mr Davies to deploy his skeleton argument as a ‘speaking note’ as if delivered orallyThat was with one exception. Within the document was a reference and a quotation from a source. This was derived from notes of a meeting. These had never been filed and served in this case, despite several opportunities to place relevant material before the court. I was not prepared to allow that point to be relied upon, in those circumstances. Mr Davies very fairly accepted – when this was pointed out – that it would not be appropriate for him to be able to, in effect, give evidence in that way. The simple solution which we adopted was to treat that part of that paragraph in the speaking note as though it were deleted.

 

THE POST OFFICE CASE

One aspect of the judgment in Bates & Ors v the Post Office Ltd (No 6: Horizon Issues) [2019] EWHC 3408 (QB) is the judge’s criticism of the defendant’s attempt to give “evidence” at the stage of closing submissions.

 

THE JUDGMENT

The judgment was given at the end of a trial relating to defects in the Post Office computing system.   The judge commented that

“69. Further, before turning to the detail of each side’s evidence, an approach was adopted by the Post Office on occasion of seeking to adduce what was (or should have been) in reality evidence of fact, but by way of submission, or points made “on instruction”. Sometimes, depending upon the nature of the subject matter, such an approach is understandable or unavoidable, and may be unobjectionable. It is not therefore sensible to state that this should never be done in any conceivable circumstance in any trial. However, on important points that have been dealt with by a particular witness in their evidence of fact, it is not a suitable device to adopt. This was particularly done in terms of the cross-examination of Mr Coyne concerning evidence already given by Mr Godeseth in his cross-examination, about alteration by Fujitsu of a particular branch account. I deal with that in detail at [376] to [379] below.
  1. This was also done in Appendix 2 of the Post Office’s Closing Submissions, where (sometimes detailed) factual explanations were given in respect of bugs in the Bug Table. That appendix was compiled by different teams of solicitors and counsel, something explained by the Post Office when, some months after it was submitted, they discovered that three pages were missing and sought permission to serve them rather late. I granted permission for them to be added, as they had been prepared before the deadline for service and omitted due to an administrative oversight.
  1. Submissions should not contain evidence, or positive evidential assertions, that are not present in the evidence served in the trial. This is a fundamental point. I provide some examples in the Technical Appendix by reference to specific entries for specific bugs. Blurring (or ignoring) the lines between submission and evidence is entirely unhelpful. Evidence is something that comes from a witness (lay or expert) and which the opposing side is entitled to test by way of cross-examination. It is not appropriate for detailed factual assertions to be made in closing submissions that are not directly referable to evidence in the case. There is no way such factual assertions can be tested; if they come in closing submissions, there is no way that the opposing party can deal with those assertions in their own evidence, or even put relevant points to witnesses for the other party in cross-examination. “