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

It is plain from the UT’s decision at [13] that because of the arguability of the ground of challenge, the Tribunal would have granted the appellant permission to apply for judicial review but for their findings that the 2024 claim for judicial review was late and the appellant had not satisfied them that he had tried to make a timely application. That can only be a reference to his evidence that he sent the claim to the UT at the Royal Chelsea Hospital post office on 26 March 2023. The appellant did not suggest that he did so at some other post office or on some other day.

The statement by the UT that “in our experience post offices do not open on Sunday” [6] was not qualified, but absolute. The Tribunal did not say most post offices do not open on a Sunday, or suggest that some might do. The UT’s statement did not form part of some probabilistic assessment of the chances that the post office in question had been open on 26 March 2023.

If, however, the UT had found that some post offices open on a Sunday, or that the Royal Chelsea Hospital post office was, or may have been, open on 26 March 2023, there is nothing in its reasoning to indicate that it would still have rejected the appellant’s application to extend time and refused to admit the application to apply for judicial review. That reasoning carries no suggestion that the UT treated the other considerations listed by Mr. Yarrow, namely concerns about the location of the post office some distance away from the appellant’s home, where he prepared the claim the same day, and the “production” of the certificate of posting, as a freestanding basis for its decision to refuse to extend time. In my judgment the UT’s treatment of the “Sunday opening” issue formed an integral part of its reasoning.

I accept Mr. Lee’s submission that the UT’s view on Sunday opening must have affected the view they formed about, at the very least, the appellant’s reliability or credibility as a witness, if not his honesty. Put simply, he said that on 26 March 2023 he went into a post office to send his application to the UT and obtained a certificate of posting there, whereas the Tribunal was of the view that no post office could have been open for business that day. I also agree that the UT’s view on the appellant’s credibility must have affected the conclusions it reached on his evidence about such matters as the choice of post office, the certificate and his explanation for not having taken any steps to find out from the UT what had happened to the 2023 claim.

The respondent could have chosen to focus on the adequacy of the appellant’s explanation for not making contact with the UT to find out what had happened to a claim that had to be received by them by 3 April 2023 until a year later. But she did not do so in her oral submissions before the UT. Even if, contrary to my view, the judicial notice error could not have tainted the Tribunal’s fact-finding on this point, they did not clearly identify it as a freestanding reason for their decision. Mr Yarrow did not seek to persuade us that we should uphold the UT’s decision on this point alone.

So this part of the argument comes down to whether it was permissible for the judges of the UT to take into account their experience that post offices do not open on Sunday. That phraseology is perhaps reminiscent of page 18 of the transcript where Judge Perkins said:

“I think [post offices opening on a Sunday] is entirely contrary to our experience. I am not sure it is within the scope of judicial knowledge”.

If the UT was relying simply upon the experience of the two judges sitting in that constitution, plainly that was not evidence at all. Mr. Yarrow did not suggest otherwise.

The views of the judges on this subject could only have been admissible if they related to a fact of which judicial notice could be taken, as Mr. Yarrow chose to urge upon the UT towards the very end of the hearing.

The concept of judicial notice is discussed in chapter 3 of Phipson on Evidence (20^th ed.). Mr. Yarrow did not suggest that the explanation of that principle given in Scott was incorrect. Nor did he cite any authority to support the submission he had made to the UT that judicial notice applied to the matter in question. No attempt was made before the UT or before us to explain why it was a “notorious fact” that post offices do not open on Sundays. I would not accept that bold proposition. Of course, if counsel had simply asserted that some or even many post offices do not open on Sundays, the point would have lost all its force without evidence that the post office in question did not open on Sundays at the material time. But that did not form part of the respondent’s case before the UT.

The procedure which was followed in this part of the hearing before the UT is troubling in a further respect. When the witness gave evidence that the date of posting recorded on the certificate was 26 March 2023, Judge Perkins said that the Tribunal was not aware of post offices opening on Sundays. The appellant then gave evidence that they do. No further questions were put. It should have been clear that the view expressed by the Tribunal, as well as the respondent’s assertion that the matter was covered by judicial notice, contradicted the witness’s evidence and went to his reliability as a witness. It is surprising to say the least that no-one saw the need for that implicit criticism of the appellant to be put fairly and squarely to him, in particular by the respondent’s counsel (Phipson at para.13-12)).

I turn to deal with Mr. Yarrow’s alternative submission and the Respondent’s Notice.

The appellant’s skeleton argument in support of the application for permission to appeal sought to rely upon fresh evidence, namely screenshots from the internet taken on 9 October 2024 from which it appeared that the opening hours of the post office in question included Sundays. In addition, the appellant relied upon a letter dated 30 April 2025 from Mr. Manish Patel purporting to write on behalf of the “Chelsea Post Office”. He says that that office was open on Sundays until October 2024.

In his order dated 2 May 2025 granting the appellant permission to appeal, Stuart-Smith LJ recorded that he had been informed that the UT was shown the screenshots dated 9 October 2024, the date of the hearing before them. It was arguably unsound therefore, that the UT had found that post offices did not open on Sundays. He directed the respondent to indicate whether she agreed that the post office in question was open on 26 March 2023 and with the contents of the letter from Mr. Patel dated 30 April 2025.

On 3 September 2025 the respondent applied to rely upon fresh evidence contained in a witness statement of that date by Fatima Fares, a lawyer in the Government Legal Department (“GLD”). She has given unchallenged evidence that the screenshots produced by the appellant were not shown to the UT. Fortunately for the appellant, this does not affect the resolution of the issue we have to determine: that is whether the fresh evidence is admissible and shows that the error made by the UT is immaterial because the post office was not open on 26 March 2023.

In summary, the witness statement of Ms. Fares refers to archived web pages indicating that the post office was closed at weekends in March 2023, setting out technical reasons as to why the appellant’s screenshots could be inaccurate and producing emails from someone who in September 2025 was a manager at the post office. That manager said that she had been told by Mr. Patel, a person who worked at the post office in March 2023, that he had never written or signed the letter of 30 April 2025 and that the use of the certificate of posting form bearing the date 26 March 2023 had been discontinued in 2016 or 2017. The Respondent’s Notice challenged the genuineness of the letter dated 30 April 2025 from Mr. Patel and of the certificate of posting and asked this Court to conclude that the post office was closed on 26 March 2023.

On 27 October 2025 the appellant applied to rely upon fresh evidence: a witness statement from Mr. Manish Patel dated 23 October 2025 and a witness statement from the appellant dated 24 October 2025. Mr. Patel says that the letter of 30 April 2025 was written by him and is accurate. He contradicts the information which the current manager says he gave to her as recounted in her email to the GLD. He says that the certificate of posting and the stamp it bears are both genuine. Lastly, Mr. Sadozai produced a further witness statement dated 31 October 2025 in which he exhibits printouts of recent internet searches showing a number of different post offices which open on Sundays.

The admissibility of fresh evidence on an appeal is governed by CPR 52.21 replacing the former RSC Ord. 59 r.10(2). As explained in Terluk v Berezovsky [2011] EWCA Civ 1534 at [32], the principles laid down in Ladd v Marshall [1954] 1 WLR 1489, 1491 are no longer primary rules, effectively constitutive of the court’s power to admit fresh evidence. The primary rule is given by CPR 52.11(2)(b) coupled with the duty to exercise it in accordance with the overriding objective. However, the principles in Ladd v Marshall remain relevant as matters which must necessarily be considered in the exercise of the court’s discretion as to whether to permit a party to an appeal to rely on fresh evidence.

In public law cases, exceptional circumstances or the interests of justice may justify a more flexible approach or a departure from Ladd v Marshall principles (see the discussion in E v Secretary of State for the Home Department at [68] to [89]). Whether to allow flexibility is highly sensitive to the facts and context of each case. For example, in an asylum case it may be appropriate to have regard to genuine difficulties in obtaining relevant evidence at an earlier stage [88] depending on the circumstances of the case and the legal issues involved.

The issue of whether the claim form could not have been sent to the UT on 26 March 2023 because that was a Sunday and the post office was shut that day was only raised at the hearing by the Tribunal itself. But plainly this point had been open to the respondent to take before the hearing. If the respondent wished to rely upon the point, she should have raised the matter in advance of the hearing before the UT. Alternatively, if the point only arose at the hearing as an issue raised by the Tribunal and the respondent wished to rely upon it, then rather than making a misconceived attempt to rely on judicial notice, the respondent ought to have applied for an adjournment so that proper evidence could be laid before the Tribunal and, if justified, be the subject of cross-examination. If after the evidence had been filed the issue was to be pursued, the UT would have been able to take that material into account and determine the matter properly as part of its overall decision on the appellant’s application. That is what should have happened instead of the parties attempting to adduce fresh evidence in the Court of Appeal. This would also have avoided the need for an appeal to be brought against the UT’s reliance on judicial notice.

Accordingly, in my judgment, none of the fresh evidence in this appeal represents material which could not with reasonable diligence have been obtained for use at the hearing before the UT. No exceptional circumstances have been identified which would justify a departure from, or flexibility in relation to, the first of the principles in Ladd v Marshall. I see none.

Furthermore, looking at the fresh evidence as a whole, I am not persuaded that, as matters currently stand, it could properly be concluded that the Royal Chelsea Hospital post office was closed on 26 March 2023, so as to neutralise the error of law in the UT’s decision identified above. Essentially, I agree with the submissions of Mr. Lee in para.9 of his supplementary skeleton dated 3 November 2025. I go no further than that.

For these reasons I would refuse the applications to adduce fresh evidence.