CA-2024-002479 - [2025] EWCA Civ 1464

Mr. Lee appeared for the appellant at the hearing of this appeal. In his oral submissions he refined the arguments for his client.

He submitted that the UT’s decision to refuse permission to apply for judicial review was flawed by a material error of law, namely the taking of judicial notice that post offices do not open on Sundays. There was no evidence before the UT to support their factual finding on this point and no justification for treating it as a matter of judicial notice. He referred to Scott v The Attorney General of the Bahamas [2017] UKPC 15 where Lord Kerr giving the judgment of the Privy Council said this at [40]-[41]:

“40.

Judicial notice is the acceptance by the courts of facts or a state of affairs which are so notorious, or so clearly established, that evidence of their existence is deemed unnecessary. As Cross and Tapper on Evidence 12^th ed (2010), p 76 state:

“Judicial notice refers to facts which a judge can be called upon to receive and to act upon either from his general knowledge of them, or from inquiries to be made by himself for his own information from sources to which it is proper for him to refer.”

41.

Moreover, the party seeking judicial notice of a fact “has the burden of convincing the judge (a) that the matter is so notorious as not to be the subject of dispute among reasonable men, or (b) the matter is capable of immediate accurate demonstration by resort to readily accessible sources of indisputable accuracy” – Morgan, Some Problems of Proof under the Anglo-American System of Litigation 36.”

Alternatively, Mr. Lee submitted that the UT’s conclusions that the post office at the Royal Chelsea Hospital was closed on Sundays at the material time involved a mistake of fact giving rise to unfairness, applying the principles in E v Secretary of State for the House Department [2004] QB 10 at [66].

Mr. Lee submitted that, immediately after referring to the certificate of posting [5], the UT said that it found the evidence on the attempt to serve the papers on the Tribunal “very unsatisfactory” [6]. They then referred again to the certificate dated 26 March 2023, a Sunday, and then immediately said that “In our experience post offices do not open on Sunday”. There was no evidence on the matter and so the UT were only entitled to rely upon this point if it fell within the ambit of judicial notice.

He submitted that the UT relied upon that finding to support its conclusions that the appellant’s evidence of posting his claim to the Tribunal was unsatisfactory and that they were not satisfied that it had ever been sent [6] and [10]. The materiality of this point to the decision to refuse to admit the application is also apparent from the transcript of the hearing.

Mr Lee submitted that those conclusions also undermined the appellant’s reliance upon the certificate of posting. At [7] the UT found it “remarkable” that the appellant had been able to produce the document. The clear implication of the Tribunal’s approach was that they did not accept the veracity of the appellant’s evidence that he had posted the claim to the UT on 26 March 2023 or that the certificate of posting was genuine.

Counsel submitted that the UT cannot have disregarded those matters when they considered other parts of the appellant’s evidence, including his explanations for being in the Chelsea area on 26 March 2023 and why he had not chased the UT for news as to what was happening to his claim.

Counsel said that if the UT had been satisfied that the appellant had posted the claim on 26 March 2023, the issue of whether time should be extended in relation to the 2024 claim would have involved different considerations for the Tribunal as compared with a scenario where the appellant had not sent the claim at all before April 2024.

Mr. Yarrow submitted that the UT did not take judicial notice that post offices do not open on Sundays, alternatively if they did and that was inappropriate, the error was not material to the outcome of the application.

Mr. Yarrow said that the Tribunal had been troubled by a number of matters in the appellant’s case on delay which they took together in the round. There was the question why the claim had been posted in Chelsea rather than Ilford, particularly if the appellant prepared the pleadings at home on the same day as they were posted. Judge Norton-Taylor had also referred to the discrepancy as to whether the claim had been posted on 26 March 2023 or on some earlier date. In that context the UT had been concerned about the certificate of posting. It did not accompany the claim form for the 2024 judicial review despite the cross-reference to it, the bundle was prepared late and it had still not been provided by the time the application for permission was considered on the papers. The certificate was not provided until the appellant’s witness statement of 1 October 2024.

Mr. Yarrow also referred to Judge Perkins at p.18 of the transcript where he said that he was not sure that the closure of post offices on Sunday was within judicial knowledge. He suggested that the UT’s statement in [6] that “in our experience post offices do not open on Sunday” served only to inform what he described as “a probabilistic assessment” of the likelihood of the Royal Chelsea Hospital post office having been open on the Sunday in question.

Counsel submitted that the UT did not make a finding that the appellant had been dishonest in claiming to have sent the claim form on 26 March 2023. Instead, they treated the witness as having “failed to come up to proof” when he said that he had posted the claim on that date.

In the alternative, Mr. Yarrow relied upon the Respondent’s Notice and submitted that fresh evidence, if admitted, shows that the post office in question did not open on 26 March 2023. If the court should decide that the UT wrongly took that view by relying upon judicial notice or their own experience, that error was non-material because of the fresh evidence. In other words, the UT would have refused to admit the application because that evidence shows that the claim could not have been sent on that date from that post office.