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

This is a first instance ruling on the admissibility of evidence in two consolidated judicial review claims challenging the "London Streetspace Plan – Interim Guidance to Boroughs" (the Guidance) and the A10 GLA Roads (Norton Folgate, Bishopsgate and Gracechurch Street, City of London (Temporary Banned Turns and Prohibition of Traffic and Stopping) Order 2020 (the A10 Order)). The court summarised and applied established principles restricting the use of "after the event" evidence by public authorities, particularly the authorities in Timmins v Gedling BC and Ermakov v Westminster, while recognising the need for a more expansive approach when the court must decide proportionality issues.

The court held that evidence must generally be limited to material demonstrably taken into account by decision‑makers when considering Grounds 1 (failure to take into account material considerations) and 2 (public sector equality duty). By contrast, on Grounds 3–5 (proportionality) the court allowed a broader range of legitimate post‑decision evidence about impacts and necessity. On that basis the judge admitted substantial parts of Sam Monck’s witness statements but struck out or limited other passages as impermissible ex post facto justification. The court also granted permission for the Claimants’ expert Martin Low’s second and third reports to be adduced. The court gave detailed directions requiring TfL to file edited, final versions of Monck 1 and Monck 2 that identify inadmissible passages and those admissible only for proportionality or only as to the A10 Order.

The claimants, United Trade Action Group Ltd and the Licensed Taxi Drivers Association Ltd, sought judicial review of two related decisions: the London Streetspace Plan interim Guidance issued by Transport for London and the temporary traffic order implementing measures on the Bishopsgate corridor (the A10 Order). The issues for the court were primarily evidential: which parts of the factual and expert evidence filed by the parties could be admitted and relied upon.

Background and parties:

• The claimants attack the Guidance and the A10 Order mainly on grounds that the defendants failed to have proper regard to taxis and their passengers and failed to comply with the public sector equality duty. The defendants are Transport for London and the Mayor of London. The proceedings involved significant factual and expert material produced by both sides, with contested witness statements from TfL officers (notably Sam Monck) and expert reports from the claimants’ expert (Mr Martin Low).

Procedural posture: This is a hearing at first instance on cross‑objections to the admissibility of evidence filed in support of and in response to the judicial review claims. The court considered the evidence de bene esse and ruled on admissibility at the conclusion of the hearing.

Issues framed:

• Whether and to what extent TfL may rely on witness statements and documents created after the decisions to explain or justify those decisions without offending the prohibition on ex post facto rationalisation.
• Whether the Claimants’ technical expert reports were admissible.
• How the court should apply established authorities (including Horeau, Timmins, Ermakov, Lanner and Kenyon) when separating contemporaneous reasoning from subsequent commentary.

Court’s reasoning and conclusions:

• The court reiterated that public authorities must come to court candidly but may not be permitted to cure defects in contemporaneous decision documents by adducing new justificatory material after the event. Authorities such as Timmins v Gedling BC, Ermakov and Lanner were applied to identify when later witness evidence is merely elucidatory and when it is an impermissible substitution for contemporaneous reasons.
• The judge adopted a strict approach to after‑the‑event evidence on Grounds 1 and 2, limiting admissibility to material demonstrably taken into account by decision‑makers when the decisions were made; passages of Monck’s statements that sought to plug gaps in the contemporaneous record as explanations for why taxis were not addressed were ruled inadmissible for those grounds.
• By contrast, on proportionality (Grounds 3–5) the court allowed a more expansive approach permitting legitimate post‑decision evidence about impacts, modelling and the necessity of measures; several parts of Monck’s statements that post‑dated the decisions were admitted for the proportionality issues.
• The court granted the Claimants permission to rely on Mr Low’s second and third expert reports, accepting their relevance to the technical and proportionality issues.
• As practical relief the court ordered TfL to produce edited final versions of Monck 1 and Monck 2 within 28 days, removing inadmissible passages and marking material admissible only for proportionality or only in respect of the A10 Order. The court also admitted other parties’ material on the impact of other Streetspace schemes for contextual monitoring evidence.

The ruling therefore resolved the contested evidential scope for the substantive judicial review hearing, rather than resolving the substantive legality of the Guidance or the A10 Order.

The court determined the admissibility objections: parts of the defendant’s witness statements (Monck 1 and Monck 2) were admitted, parts were struck out as impermissible ex post facto justification, and other parts were admitted only for the proportionality issues (Grounds 3–5) or only in relation to the A10 Order. The court granted permission for the Claimants to rely on Mr Low’s second and third reports and directed TfL to file edited final versions of Monck 1 and Monck 2 reflecting the ruling. The ruling applied established authorities limiting after‑the‑event explanation while recognising a wider evidential scope for proportionality analysis.