AC-2025-LON-000298 - [2025] EWHC 2435 (Admin)

The Carr Report of 5 September 2019 and Mr Carr’s letter of 19 March 2024 which objected to the making of the Order were before the Inspector and are in evidence. The witness statement was filed during the course of these proceedings and was not before the Inspector. Paragraphs 1-17 of the witness statement set out a chronology of events and are not contentious. Paragraphs 18-19 are statements of fact as to the contents of his report and the basis for his conclusions within the Carr Report. I am going to admit those paragraphs into evidence. Paragraphs 20-28 are more problematic. Paragraph 20 is a straightforward disagreement with the FOD decision maker and paragraphs 21-28 continue with a critique as to that decision.

Helpfully I have been referred to relevant caselaw. In the case of Kirkman the court was careful to make the distinction between expert opinion and factual evidence given by someone with relevant expertise. Mr Streeten has referred me to R (Law Society) v Lord Chancellor [2019] 1 WLR 1649 per Leggatt LJ at paragraph 36 and R (Public and Commercial Services Union) v Secretary of State for Home Department [2022] EWHC 517 (Admin) at paragraphs 22 – 30. He submits that the evidence in the disputed paragraphs is not reasonably required to determine the issues which arise. I agree with that submission, the relevant material which was before the decision maker is in evidence and submissions have been made about the matters in dispute.

Whilst much of the critique in paragraphs 21-28 relies on, and repeats previous submissions to the OMA and Inspector, it is argumentative and coming, as it does from the Claimants’ expert advisor, it crosses the line into expert opinion. I am satisfied that the content of paragraphs 21-28 is not reasonably required to determine the issues arising and it is inappropriate in a public law challenge. It would be unfair to the other parties to admit paragraphs 20-28 into evidence given that this evidence was not before the original decision maker and the contents stray into expert opinion or commentary on the final decision. Mr Carr was essentially seeking to justify and reinforce his earlier expert opinion.

For the above reasons I have excluded the evidence in paragraphs 20-28 from my analysis.