Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 19 (AAC)

Fecha: 13-Dic-2023

Procedural issue: application to admit witness statement from CW

Procedural issue: application to admit witness statement from CW

A procedural question arose on the morning of the hearing as regards admitting a witness statement from CW. We now set out the relevant background to this issue.

10.

In the case management directions for the hearing, issued by the Upper Tribunal on 28 April 2023, the parties were directed to tell the Upper Tribunal within 15 working days, amongst other things

“what evidence, apart from documents already in the Upper Tribunal bundle, they intend to rely on at the hearing. If either party wishes to provide oral evidence at the hearing (and this would include oral evidence of the Appellant himself), they must, in addition, provide a witness statement from that person, to be received by the Upper Tribunal (and copied to the other party) no later than 25 working days after the [date on which the directions were issued]” (this was direction 3c).

11.

Neither party responded to this direction, so as to indicate that they intended to rely on other evidence, or provide a witness statement. On 19 May 2023, the Upper Tribunal sent an email to the parties, noting this lack of response, and stating that if either party now wished to respond to the direction (and apply for an extension of time), they should email the Upper Tribunal forthwith. Nothing further was received to this effect from either party.

12.

A hearing listed for 12 September 2023 was postponed. It was relisted for 13 December 2023.

13.

On 6 December 2023 the Upper Tribunal emailed the parties as follows:

“Judge Citron is conscious that, as the hearing in September was postponed at short notice, the parties had already filed skeleton arguments and an authorities bundle. He is also conscious that, subsequent to that postponement, the judgement of the Court of Appeal in DBS v JHB [2023] EWCA Civ 982 was delivered. If either party wishes to amend their skeleton argument in the light of that case, they may do so, provided that any such amendments are sent by email to the Upper Tribunal no later than 1 pm on Monday 11 December 2023.”

14.

On 11 December 2023 at 11.21 am the Upper Tribunal received an email from CW’s representative as follows: “I am writing to confirm that we will not be making any amendments to the skeleton, however, [CW] does wish to provide evidence on the matters.”

15.

At 4.41 pm on the same day, the Upper Tribunal emailed CW’s representative, as follows:

"Your email of 11 December has been put before Judge Citron, who notes that the appellant wishes to give evidence at the hearing on 13 December. Judge Citron notes that the appellant appears not to have complied with direction 3c of the directions issued on 28 April 2023 (page 130 of the Upper Tribunal bundle). Judge Citron would like an explanation of the position from the appellant, preferably by email as soon as possible (and otherwise at the start of the hearing). If the parties can reach agreement that direction 3c should now be varied or waived, the appellant should inform the Upper Tribunal of that. Emails from the appellant to the Upper Tribunal on this should be copied to the respondent."

16.

At 8.33 am on 13 December 2023 (the day of the hearing), the Upper Tribunal received an email from CW’s counsel attaching a witness statement of CW dated 13 December 2023 and submissions including the following

that due to full time trial court commitments it had not possible to discuss the effect of JHB on CW’s case until 12 December 2023 at 5pm; following a conference a witness statement was drafted; any delay in providing the information “falls at the feet of counsel and not CW himself”

that CW sought leave to rely on the witness statement. It went to the very heart of his appeal in relation to the DBS errors of fact. It cited [95] of JHB:

“… Second, a finding may also be ‘wrong’ for the purposes of section 4(2)(b) if it is a finding about which the UT has heard evidence which was not before the DBS, and that new evidence shows that a finding by the DBS was wrong …”

that balancing fairness and in the interests of justice the Upper Tribunal should allow the late reliance upon this evidence.

17.

At the hearing, DBS’s counsel was “neutral” as to whether CW should be permitted to provide the witness statement; but she submitted that, if permission were to be given, the hearing had to be adjourned to a later date, to give DBS time to consider its contents and properly prepare for a hearing (at which CW could give oral evidence and be cross examined). CW’s counsel agreed with DBS that, if the witness statement were to be admitted, the hearing should be adjourned to a later date to give DBS time to consider its contents.

18.

We refused CW’s application. Our reasons are set below in the “Discussion” section.