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Procedural Applications
Procedural Applications
At the outset of the hearing, there were four procedural applications outstanding.
The first two were applications by FTDIHL to adduce further witness evidence. These applications were unopposed, and the Court granted them.
The third was an application by FTDIHL to cross-examine two of CDL’s witnesses, namely Ms Shakara Lemonious and Mr Jack Irwin. That application was opposed. As the Court indicated after argument on the point, the application was granted, and reasons for that decision would be provided with the judgments on the substantive issues. Cross-examination of Ms Lemonious and Mr Irwin accordingly took place, submissions were made by both parties on the effect of those witnesses’ evidence, and the Court has taken that evidence, including that given in cross-examination, into account.
In brief, the reasons why Edis LJ and I decided that cross-examination should be permitted are as follows:
We recognised that orders for cross-examination of witnesses in Judicial Review proceedings are rare. The purpose of cross-examination is usually to help resolve issues of primary fact. Typically, however, courts hearing Judicial Review claims do not have to resolve issues of primary fact because the focus is on the procedure adopted before the decision was made, on whether the decision-maker identified and answered the right question(s), approached his task in a logically acceptable way, gave adequate and intelligible reasons, and reached a decision open to him on the evidence. Even in the atypical case where the Court does have to resolve an issue of primary fact, there is no rule or default position that the Court should order cross-examination when and if it has to decide disputed questions of fact. There are other means and techniques available to the Court, including testing matters by reference to the contemporaneous documentation and other written evidence, which permit it in many cases to resolve issues of fact without cross-examination.
The test as to whether cross-examination should be permitted was helpfully summarised by Burnton LJ in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2012] EWHC 2115 (Admin), at [14] as follows:
‘… the Court retains a discretion to order or to permit cross-examination, and it should do so if cross examination is necessary if the claim is to be determined, and is seen to be determined, fairly and justly.’
In the present case, the evidence of the witnesses concerned is principally relevant to Ground 1B, and in particular to the issue of what was the state of ‘awareness’ of the ‘Secretary of State’ as to the ‘trigger event’ during 2022. While there is a legal issue as to whose awareness counts as that of the Secretary of State for the purposes of NSIA, there is also a factual question as to what was known by officials within and supporting the ISU during that period which will be germane if FTDIHL’s case on the legal question is accepted.
We concluded that it was necessary in order for the claim to be, and be seen to be, fairly determined that the two witnesses should be cross-examined. The issue to be addressed with them was as to the state of their own knowledge; that is to say, not just a question of fact, but a question of fact of a particular kind, of the sort where cross-examination may be of particular usefulness. Further, the evidence in relation to their knowledge is potentially important to a central part of FTDIHL’s challenge to the Final Order, namely Ground 1B. The application to cross-examine was, moreover, an appropriately limited and targeted one.
In those circumstances, cross-examination should be permitted given that the application to cross-examine had been made at an appropriate stage, and the possibility of cross-examination had been allowed for in the timetable for the hearing.
The fourth application was to extend time for a challenge to the Call-In Notice. The reason for this application was that, though FTDIHL contends that its challenge is, and is properly, to the Final Order, CDL had contended that it was the decision to give the Call-In Notice which FTDIHL should have challenged, that a challenge to the Call-In Notice was out of time, and that in the absence of a challenge to the Call-In Notice there could be no successful challenge to the Final Order.
At the hearing CDL indicated that he would not pursue the point that the challenge was out of time, while not conceding the point that the challenge should have been to the Call-In Notice for other purposes. It is accordingly not necessary to express any view as to the merits of the point. I will however record that, in any event, we considered that there were exceptional circumstances which would have justified an extension of time in which to challenge the Call-In Notice, should such a challenge have been necessary. At the time that FTDIHL and FTDI received the Call-In Notice they did not know what degree of knowledge there had been within ISU as to the ‘trigger event’ during 2022. That, coupled with the seriousness of the case to FTDIHL and the absence of prejudice to CDL by any extension of time, led us to conclude that the present was one of those cases in which an extension would have been appropriate in the interests of justice.