England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

		Royal Courts of Justice Strand London, WC2A 2LL
		4 March 2015

1. LORD JUSTICE JACKSON: This is an application for permission (a) to rely upon a respondent's notice served out of time and (b) to adduce fresh evidence. The facts giving rise to this application are as follows. The appellant came to the United Kingdom in April 2002. He has not led a blameless life in this country. He has served two prison sentences for drug offences. The second sentence was a term of 5 years' imprisonment imposed on 23 September 2012. On 17 June 2013, the Secretary of State made a deportation order against the appellant, pursuant to section 32(5) of the UK Borders Act 2007. The appellant appealed to the First-tier Tribunal against that order, relying upon the fact that he was married to a person entitled to reside in this country.
2. The First-tier Tribunal considered the matter at a hearing on 4 September 2013 and promulgated its decision on 23 September 2013. The First-tier Tribunal held that the deportation order was not in accordance with the law because it was made before the decision to deport was taken. The Secretary of State appealed against that decision to the Upper Tribunal. The Upper Tribunal considered the matter at a hearing on 20 March 2014 and promulgated its decision on 15 July 2014.
3. Taking matters quite shortly, proceeding on the same factual basis as the First-tier Tribunal, the Upper Tribunal concluded that there were three errors of law in the decision of the First-tier Tribunal. The Upper Tribunal remitted the case to the First-tier Tribunal, so that that tribunal could consider the matter on a correct legal basis. The appellant now appeals to the Court of Appeal against the decision of the Upper Tribunal.
4. Permission for the present appeal was granted on 5 December 2014. On 19 December 2014, the time for service of any respondent's notice expired. No such notice was served in December 2014 or indeed in January 2015. On 26 February 2015, not long before today's hearing, the Secretary of State served out of time a respondent's notice taking essentially two points: first, the Secretary of State argued that the decision of the Upper Tribunal could be supported on a separate ground, namely the reasoning of the Court of Appeal in R (on the application of Anufrijeva) v Secretary of State for the Home Department [2004] 1 AC 604; secondly, the Secretary of State argued that the decision of the First-tier Tribunal was taken on a wrong factual basis. In support of that contention the Secretary of State argued in her respondent's notice that fresh evidence was available and she made an application to the court to admit that fresh evidence.
5. That being the procedural background, the matter comes on for hearing today. Mr Rory Dunlop, on behalf of the Secretary of State, applies for permission to rely upon his respondent's notice, which was served out of time, and also he applies for permission to adduce fresh evidence on appeal, pursuant to the powers of this court under rule 52.11(2)(b) of the Civil Procedure Rules.
6. Mr Manjit Gill QC, who appears for the appellant, very fairly accepts that the argument which the Secretary of State wishes to deploy in relation to Anufrijeva is a point of law which can perfectly well be dealt with on this appeal, despite the lateness with which the point was raised. Therefore, he does not oppose the reliance on the late respondent's notice in relation to the Anufrijeva point. That is a very fair and reasonable way to deal with the matter. Accordingly I would allow the Secretary of State to rely upon her late respondent's notice in relation to the Anufrijeva point.
7. I turn next to the application to adduce fresh evidence. The principles upon which fresh evidence may be admitted before the Court of Appeal were considered authoritatively by the Court of Appeal in Ladd v Marshall [1954] 1 WLR 1489. Denning LJ, as he then was, said that three conditions must be fulfilled: the first condition is that the evidence could not have been obtained with reasonable diligence for use at the trial; the second condition is that, if given, the evidence would probably have an important influence on the result of the case; and the third condition is that the evidence must be such as presumably to be believed.
8. Those principles, stated by Lord Denning, have been treated as authoratitive guidance for many years. When the Civil Procedure Rules were introduced in April 1999 they did not contain any express reference to the Ladd v Marshall principles. Nevertheless in dealing with applications under rule 52.11(2)(b) this court commonly has regard to those principles as a valuable guide to the exercise of its discretion.
9. Mr Dunlop, on behalf of the Secretary of State, submits that the Ladd v Marshall principles should be applied less strictly in public law cases such as this. In support of that proposition he relies upon the decision of the Court of Appeal in E and R v Secretary of State for the Home Department [2004] EWCA Civ 49; [2004] QB 1044 at paragraphs 79 to 81. For my part I accept the proposition that the Ladd v Marshall principles are applied less strictly in public law cases. Indeed Mr Gill, who appears for the appellant and opposes this part of the Secretary of State's application, also accepts that the Ladd v Marshall principles are applied less strictly in public law cases. Nevertheless the fact remains, as Mr Gill points out, that the Ladd v Marshall principles are still relevant, although the court applies them more flexibly. There must be a limit to that flexibility.
10. Mr Gill submits that this case goes too far. In my view Mr Gill is correct. The Secretary of State has always been in possession of the "fresh" evidence upon which she wishes to rely. She should have deployed that evidence before the First-tier Tribunal. There was no good reason why she did not do so and therefore she cannot satisfy the first test in Ladd v Marshall. Having failed to put that evidence before the First-tier Tribunal she had an opportunity to deploy it before the Upper Tribunal. Once again the Secretary of State failed to do so.
11. Having failed on both of those occasions, the next opportunity for the Secretary of State was to serve a respondent's notice timeously making an application to adduce that fresh evidence. The Secretary of State failed to serve the respondent's notice until very late in the day, approximately a week before this hearing with no good excuse for that delay. Everyone knows that government departments are hard pressed and under resourced. Many litigants are hard pressed and under resourced, but as this court has said on more than one occasion, that is no excuse for non-compliance with the rules. If the Secretary of State wishes to litigate in the Court of Appeal she must comply with the rules in the same way that everyone else must do so.
12. In my view, this application to adduce fresh evidence comes far too late in the day. It is quite impossible to see any compliance with the Ladd v Marshall principles, however flexibly they are applied. In those circumstances I would refuse the application to adduce fresh evidence.
13. LORD JUSTICE SULLIVAN: I agree.
14. LORD JUSTICE SALES: I agree.