LXD & Ors, R (on the application of) v Merseyside Police (Rev 1)

In judicial review proceedings, the court may permit further evidence after an earlier procedural deadline where the case is evolving and exclusion would be unjust or disproportionate. Permission to adduce evidence remains subject to a renewed assessment of relevance, centrality, delay and prejudice to the opposing party’s preparation.

The court should protect an expedited rolled-up hearing from being derailed by unfocused evidence or unreasonable opposition. Contemporaneous records generally have greater probative value than later evidence prepared for litigation, particularly where the issue is what was considered and what precautions were reasonably taken at the time. Cross-examination in judicial review remains unusual and should be precisely defined and confined.

The claimants sought judicial review against the Chief Constable of Merseyside Police. Mrs Justice Thornton had previously refused interim relief but ordered expedition in [2019] EWHC 1120 (Admin). The substantive claim was listed as a rolled-up hearing in the Administrative Court.

Before the substantive hearing, the court considered applications for further information, disclosure, admission of further claimant evidence, amendment of the grounds, and an order barring further defendant evidence. The central procedural issues were whether late evidence should be excluded, how the parties should prepare for the expedited hearing, and whether factual disputes justified a different forum or procedure.

1. Applications and directions. The defendant was directed to provide the requested further information and agreed disclosure by 21 May 2019. Disclosure of the risk assessment policy was subject to any public interest immunity application. The claimant’s further evidence was admitted. Amendments introducing new grounds and specifying the relief sought were permitted.
2. Further defendant evidence. The application to bar further evidence was refused at that stage. The delay and similarity between successive defence documents caused concern, but the case remained evolving and was not one of contumelious default. It would therefore be unjust and disproportionate to impose an absolute bar before the scope of the intended evidence was known.
3. The defendant was required to apply by 22 May 2019, supported by the evidence sought to be adduced. Any contested application would be reconsidered on 28 May. Relevant considerations included the effect on the claimants’ preparation for the 5 June hearing, the explanation for delay, prejudice, and whether the evidence was relevant or central to the rolled-up hearing.
4. The court would be particularly cautious about evidence intended to introduce new factual disputes or postpone the hearing. The narrower and more focused the evidence, the more likely it was to be admitted. The broader and less focused it was, the less likely it was to be admitted. The court would also take a firm view of blanket or unreasonable opposition by the claimants.
5. Contemporaneous documents were likely to be more probative than ex post facto justifications prepared for litigation. Subjective views formed weeks or months after the events might have little or no probative value where the issues were predominantly objective.
6. Cross-examination in judicial review was accepted as possible but unusual. Any application required good reason and a precisely defined, confined scope. Further directions were made for responsive evidence and supplementary skeleton arguments.

The judgment records an earlier interlocutory decision by Mrs Justice Thornton refusing interim relief but ordering expedition in [2019] EWHC 1120 (Admin). This judgment concerned subsequent case-management applications before the substantive rolled-up hearing.