Richards & Anor, R (on the application of) v Pembrokeshire County Council

A party may adduce further evidence on appeal where the opposing party was permitted at the hearing to amend its case and the evidence responds to an issue that was not previously in dispute. It is unfair to treat the responding party as negligent for failing to address an argument that could not reasonably have been anticipated. Such an application is distinct from a conventional application governed by Ladd v Marshall. Evidence may be admitted provisionally where its admissibility or weight remains uncertain. The opposing party must receive a fair opportunity to respond, limited to the relevant issue.

The claimants challenged parking directions and regulations near Tenby Harbour in judicial review proceedings. At the hearing before Mr Justice Moses on 9 October 2003, they were permitted to amend their case to raise further ultra vires arguments concerning the status and use of a raised terrace. The Council then applied in the Court of Appeal, as respondent to the claimants' appeal, to adduce witness statements addressing the Council's thinking and the effect of traffic congestion on harbour operations. The central issue was whether that further evidence should be admitted and, if so, on what terms.

Application allowed. Lord Justice Neuberger gave the first judgment and the President agreed.

1. The Council's further evidence was directed to a new issue created when the claimants obtained permission to amend their case at the hearing. Until then, the Council was entitled to proceed on the basis that the issue was not being advanced. It would therefore be unfair to characterise the Council as negligent for not having previously filed evidence on harbour operational difficulties. The application was not a conventional Ladd v Marshall application, although the principles in that case continued to apply: [1954] 1 WLR 1489; see also [2000] 1 WLR 2318.
2. The second statement of the Harbours Manager was admitted because it supplied evidence responding to the newly raised operational issue. The statement of Mr Price was also allowed to be adduced. The court left open whether that evidence was admissible and whether it would assist the Council. Its weight could ultimately be nil. Evidence explaining the background to a decision had to be distinguished from evidence impermissibly supplying reasons after the event, the issue identified by R v Licensing Authority for Goods Vehicles for the Metropolitan Traffic Area ex p Barrett Ltd: [1949] 2 KB 17.
3. It was fair to give the claimants an opportunity to file evidence in reply, but that response should be confined to the relevant operational issues. The evidence was to be filed by 3 pm on Friday 11 June 2004, with any further brief submissions by 10 am on Monday 14 June 2004. Costs were costs in the appeal.

• Court of Appeal (Civil Division): in [2004] EWCA Civ 813, allowed the Council's application to adduce further evidence in the claimants' appeal.
• High Court, Administrative Court: Mr Justice Moses heard the judicial review challenge and permitted the claimants to amend their case at the hearing on 9 October 2003.