United Trade Action Group Ltd & Anor, R (On the Application Of) v Transport for London & Anor

In judicial review proceedings, public authorities must not use evidence filed after the decision to repair defects, add new reasons, or provide ex post facto justification. For challenges based on material considerations or the public sector equality duty, the court should adopt a strict approach and consider only material demonstrably taken into account when the decision was made. Proportionality challenges require a more expansive approach: legitimate subsequent evidence concerning the impact of the measures and the need for them may be admitted. Evidence explaining contemporaneous documents is generally admissible, but evidence that contradicts or materially supplements the recorded reasons is not. Expert evidence may be admitted where the technical nature of the issues makes it relevant and useful.

The judgment concerned the admissibility of evidence in two consolidated judicial review claims brought against Transport for London and the Mayor of London. The claimants challenged the London Streetspace Plan interim guidance and an order restricting traffic on the Bishopsgate corridor. The defendants relied on witness statements explaining the decisions and responding to the grounds of challenge. The claimants objected that parts of the evidence sought to supplement the contemporaneous reasoning, relied on information unavailable when the decisions were taken, or provided post-decision justification. The court had to determine which evidence was admissible for different grounds, including failure to take account of material considerations, breach of the public sector equality duty, and proportionality.

1. Outcome. The court ruled on the admissibility of the challenged evidence and gave directions for revised witness statements.
2. Public authorities must comply with their duty of candour and co-operation, but that duty does not permit them to remedy weaknesses in their decisions through ex post facto evidence. Evidence must be assessed according to the purpose for which it is relied upon.
3. For the challenges alleging failure to take account of material considerations and breach of the public sector equality duty, a strict approach was required. The court limited its consideration to material demonstrably taken into account when the decisions were made. Subsequent evidence which supplied missing reasoning, added unavailable information, or justified the failure to address taxis was inadmissible.
4. For the proportionality grounds, a more expansive approach was appropriate. Both parties could rely on legitimate after-the-event evidence concerning the impact of the measures and the need for them. Such evidence could not, however, be used to rewrite the contemporaneous reasons.
5. Evidence which explained or commented on contemporaneous documents was generally admissible, subject to the court assessing whether it placed an impermissible gloss on those documents. Evidence contradicting official records or fundamentally altering the stated reasons was inadmissible.
6. The claimant’s expert evidence was admissible. Permission had been granted for the first report, and permission was granted for the second and third reports because the technical nature of the challenge and the proportionality issues made them relevant and potentially useful. The weight of the evidence was a matter for argument.
7. The defendants were directed to file and serve final versions of the two witness statements within 28 days, removing inadmissible material and identifying material admissible only on proportionality grounds or only in relation to the A10 Order.

First-instance ruling on evidence in consolidated judicial review claims. No prior appellate decision was stated in the judgment.