TRYING TO LODGE ADDITIONAL SUBMISSIONS SIX WEEKS AFTER THE HEARING: SUPREME COURT SAYS NO
There is a short footnote to the judgment of the Supreme Court in Tindall and another (Appellants) v Chief Constable of Thames Valley Police (Respondent) [2024] UKSC 33. It contains a warning to all of those advocates (that is probably every practising advocate) who feels that they could, or should, have argued something with more vigour at the original hearing.
“No court could function fairly and efficiently if it were to adopt a practice of accepting unsolicited further submissions in writing after (in this case many weeks after) an appeal has been heard. Such a course could only be justified in exceptional circumstances which do not exist here.”
THE CASE
The court was hearing an appeal in relation to the duty of care owed to a motorist who died in a crash after skidding on black ice. There had been an earlier accident at the scene, the police had attended and cleared away the debris. They left no barrier or warning sign. The Court of Appeal had struck out the action as revealing no cause of action. The Supreme Court upheld that decision.
THE CLAIMANT’S POST-HEARING NOTE
There is a short postscript to the judgment which deals with a note sent by the claimant’s legal team six weeks after the judgment.
- On 13 August 2024, more than six weeks after the hearing of the appeal, the claimant applied for permission to lodge a “post-hearing note” containing further submissions on the question whether there are reasonable grounds for alleging that Mr Kendall’s warning efforts were reasonably foreseeable by the police. The note asserted that, for a combination of reasons, this issue “was not covered by the [claimant] as fully during the hearing as it should have been”. The court refused the application. We do not accept that the issue was insufficiently covered. It was squarely raised with leading counsel for the claimant during his opening submissions and its importance was clearly appreciated by the claimant’s team of three counsel as Mr Bowen spent the whole of his reply submissions on the second day of the hearing addressing it. In any case if, in the aftermath of the hearing, counsel believe that they failed to make a crucial point (which is not the position here), they should contact the court immediately. No explanation was given for the claimant’s delay. No court could function fairly and efficiently if it were to adopt a practice of accepting unsolicited further submissions in writing after (in this case many weeks after) an appeal has been heard. Such a course could only be justified in exceptional circumstances which do not exist here.