The claimant challenged a decision made under the 1946 Act.
Held: It will only be upon rare occasions that the interests of justice will require that leave be given for cross-examination of deponents on their affidavits in applications for judicial review.
Lord Denning MR said: ‘I also accept the submission that there can be no such thing as a ‘technical’ breach of the rules of natural justice, since the concept of natural justice is not concerned with the observation of technicalities but with matters of substance.
The question is whether, as a result of any failure in procedure or the like, there was a breach of natural justice.
One should not find a breach of natural justice unless there has been substantial prejudice to the applicant as a result of the mistake or error that has been made . .’
Cumming-Bruce LJ described the kind of situations within judicial review proceedings, where which cross-examination should be ordered: ‘The kind of situations in which I would expect cross-examination to be ordered is where the affidavits of one party are so unsatisfactory that, although they cannot be regarded without cross-examination as worthless evidence, they cannot be confidently accepted as evidence of fact without cross-examination. On the facts of this case . . I would have thought, on reading the affidavits, that there was an overwhelming inference that the evidence was both ingenuous and ingenious and so suspicious that, without cross-examination, it should anyway be rejected. If however, Sir Douglas Frank was not prepared, as he was not, to go as far as that, it was in my view, his duty to admit the cross-examination in order to determine whether the evidence was unreliable.’
Lord Denning MR gave three reasons for the judicial reluctance to order cross-examination in cases of judicial review: ‘(i) that because the affidavits will usually speak as to what took place before a judicial or quasi-judicial body they may have to be sworn by a planning inspector or a magistrate, or someone of that kind. Since it is undesirable that such a person should be subjected to cross-examination, the applicant should not be liable to cross-examination either;
(ii) experience shows that on procedural questions arising on judicial review there is very little conflict on the affidavits; and
(iii) if cross-examination is permitted there will be a temptation to try and undermine the actual findings of the inferior body.’
Judges:
Lord Denning MR, Cumming-Bruce LJ
Citations:
(1979) 77 LGR 689, (1979) 38 P and CR 609, (1979) 250 EG 339
Statutes:
Acquisition of Land (Authorisation Procedure) Act 1946
Cited by:
Cited – Walton v The Scottish Ministers SC 17-Oct-2012
The appellant, former chair of a road activist group, challenged certain roads orders saying that the respondent had not carried out the required environmental assessment. His claim was that the road had been adopted without the consultation . .
Lists of cited by and citing cases may be incomplete.
Natural Justice, Judicial Review, Litigation Practice
Updated: 04 May 2022; Ref: scu.470550