Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 19 (AAC)

Fecha: 13-Dic-2023

Discussion

Discussion

Our decision not to admit CW’s witness statement or allow CW to give oral evidence

24.

We viewed the questions of allowing CW to provide his witness statement, and allowing him to give oral evidence at the hearing, as closely related. This is principally because, in order for us to put any meaningful weight on things stated by CW in his witness statement, we would have wanted him to give oral evidence and, in particular, to have made himself available to answer questions on his witness statement from DBS and, potentially, from the Upper Tribunal panel. This, in our view, was a matter of fairness to both parties.

25.

Consonant with this, the parties at the hearing were in agreement that, if CW’s witness statement were to be admitted, the hearing would have to be adjourned to a later date. This was again a matter of fairness: CW had produced a witness statement very late in the day, and it would not be fair to admit it without giving DBS the opportunity to consider it, prepare any questions for cross examination, and make submissions arising from any new relevant evidence.

26.

We therefore considered whether it was fair and just, in all the circumstances, to adjourn the hearing, to allow CW’s witness statement to be admitted in a way that was fair to both parties:

a factor tending against adjourning was that the Upper Tribunal, in its case management directions of 28 April 2023, and again its communication with the parties on 19 May 2023, required the parties to say what additional evidence they wished to adduce, within a reasonable deadline, and there had been no response from CW. CW submitted that JHB affected his position on this matter; but we noted that judgement in JHB was released on 17 August 2023, nearly four months before the morning of the hearing, when CW first provided a witness statement; and even when the Upper Tribunal, on its own initiative, gave the parties the opportunity to amend their skeleton arguments in the light of JHB, on 6 December 2023, CW did not apply for permission to provide a witness statement until a week later, on the morning of the hearing;

other factors pointing against adjourning included the delay to these proceedings and the knock-on effect on other proceedings before the Upper Tribunal;

a factor pointing in favour of admitting, and adjourning, was enabling fuller participation by CW in the proceedings;

another such factor was the possible prejudice to CW (in terms of his being able to establish that the decision involved a mistake in a finding of fact) of not admitting his witness statement; to the extent it contained fresh evidence that had not been before DBS, it might assist in showing that a factual finding, on which the decision was based, was “wrong” (as the extract from JHB at [95] quoted by CW’s counsel, indicated);

however, given the importance of complying with directions of the courts and tribunals, and the fact that the documentary evidence contained two documents with CW’s views of matters (closer to the times when they occurred), we decided that the balance of fairness and justice lay with proceeding with the hearing (and therefore not admitting CW’s late witness statement, as to do so (and place any evidential weight on it) would be unfair).