JG (Jamaica) v Secretary of State for the Home Department

On an application to admit fresh evidence in a public law appeal, the Ladd v Marshall principles remain relevant, but they are applied flexibly. Flexibility has limits. Evidence already available to a party should ordinarily have been placed before the first-instance tribunal and, if necessary, the Upper Tribunal. Repeated failure to do so, coupled with a late respondent’s notice and no good excuse for delay, makes admission impermissible. Pressure and limited resources within a government department do not excuse non-compliance with procedural rules. A pure point of law may nevertheless be raised in a late respondent’s notice where the court can deal with it on the appeal and reliance is not opposed. The Ladd v Marshall principles are stated at [1954] 1 WLR 1489.

The appellant came to the United Kingdom in April 2002 and had served two prison sentences for drug offences. On 17 June 2013, the Secretary of State made a deportation order under section 32(5) of the UK Borders Act 2007. The First-tier Tribunal held that the order was not in accordance with the law because it had been made before the decision to deport. The Upper Tribunal identified three errors of law and remitted the case to the First-tier Tribunal.

On appeal to the Court of Appeal, the Secretary of State sought permission to rely on a respondent’s notice served out of time and to adduce fresh evidence under rule 52.11(2)(b) of the Civil Procedure Rules. The late notice raised a point based on R (on the application of Anufrijeva) v Secretary of State for the Home Department. The central issues were whether the late notice should be permitted and whether the fresh evidence should be admitted.

Lord Justice Jackson delivered the judgment. Lord Justices Sullivan and Sales agreed.

1. The court permitted the Secretary of State to rely on the late respondent’s notice insofar as it raised the Anufrijeva point. The point was one of law which could be dealt with on the appeal, and the appellant did not oppose reliance on it.
2. For fresh evidence, the power under rule 52.11(2)(b) of the Civil Procedure Rules was exercised by reference to the principles in Ladd v Marshall [1954] 1 WLR 1489. Those principles require that the evidence could not have been obtained with reasonable diligence for use at trial, that it would probably have an important influence on the result, and that it was presumably credible. Although the principles are a valuable guide and are applied less strictly in public law cases, the court emphasised that flexibility has a limit. The approach was supported by E and R v Secretary of State for the Home Department [2004] EWCA Civ 49.
3. The Secretary of State had always possessed the proposed fresh evidence. It was not placed before the First-tier Tribunal or the Upper Tribunal. The respondent’s notice was then served shortly before the Court of Appeal hearing, without a good excuse for the delay. The first Ladd v Marshall condition was therefore unsatisfied, and there was no compliance with the principles however flexibly they were applied.
4. Government departments’ pressure and limited resources did not excuse non-compliance with procedural rules. The application to adduce fresh evidence was refused.

• Court of Appeal (Civil Division) — In [2015] EWCA Civ 215, permission was granted to rely on the late respondent’s notice in relation to the Anufrijeva point, but permission to adduce fresh evidence was refused.
• Upper Tribunal (Immigration and Asylum Chamber) — After a hearing on 20 March 2014, the tribunal promulgated its decision on 15 July 2014. It identified three errors of law in the First-tier Tribunal’s decision and remitted the case.
• First-tier Tribunal — Following a hearing on 4 September 2013, the tribunal promulgated its decision on 23 September 2013 and held that the deportation order was not in accordance with the law because it had been made before the decision to deport.