The decisions of the Administrative Court often provide judicial review practitioners with useful tips on good practice in judicial review (or how not to pursue or defend a judicial review claim). In this post, we consider the issue of cross-examination and when the court may order a witness to be cross-examined looking in particular at a recent case dealing with this issue (R (Save Britain’s Heritage v Liverpool City Council and another)  EWHC 48 (Admin)).
It is rare for the witnesses to be cross-examined at a substantive hearing of a judicial review. Although the Civil Procedural Rules do not specifically provide for cross-examination, the court retains in its inherent jurisdiction the right to order cross-examination. Historically this was unlikely except in the most exceptional of circumstances where a factual dispute was involved that could not be resolved on the papers or in cases under the Human Rights Act 1998, requiring a more detailed merits review of the decision. Whether to permit cross-examination is a discretionary decision for the judge hearing the case.
The decision being challenged by way of judicial review was the council’s grant of planning permission to redevelop an area of Liverpool within the buffer zone of the Liverpool World Heritage Site. The grounds of challenge were that the council had failed to notify the Department of Culture, Media and Sport (DCMS) and UNESCO’s World Heritage Committee of the development. At the outset of the substantive hearing, an application was made by the claimant to cross-examine Mr Burns, the council’s urban design and heritage manager, on the impact of the proposed development on the Outstanding Universal Value (OUV) on the site. The application was said to be necessary given that Mr Burns’ witness statement did not deal with this issue and the development’s impact on the OUV would have required consultation with the DCMS.
In support of the application to cross-examine, the claimant relied on the decision in Jedwell v Denbighshire County Council and others  EWCA Civ 1232 and submitted that justice required the court to know whether Mr Burns’ assessment was an ex post facto justification of the decision. The council resisted the application on the basis that:
- Mr Burns’ witness statement made no reference to any assessment pre-application.
- Development in a buffer zone to a World Heritage Site was capable of affecting the OUV.
- If any assessment of the implications of the development had been carried out, it was important to know when it was undertaken and the form that such an assessment had taken. Even though the email of 15 July 2015 referred to a pre-application assessment, there was nothing to indicate whether it was in writing or the form it had taken.
- The email of 15 July 2015 was not disclosed until shortly before the hearing despite the fact that potential impact on the OUV was an issue from the start of the proceedings.
The court also commented that allowing the claimant’s application for cross-examination allowed justice to be seen to be done. It therefore granted the claimant’s application and ruled that the oral evidence of Mr Burns was admissible.
What is apparent from the judgment, is that granting the application allowed the factual dispute between the parties to be resolved, in favour of the council. The court clearly considered Mr Burns to be an impressive and thoughtful witness. On the basis of his evidence to the court, it was apparent that he had thought about the impact of the development on the OUV and concluded that there was none. His email of 15 July 2015 referred to the assessment that he had done and although there was no express reference on its face to OUV, the court found that it was clear from the oral evidence Mr Burns gave that he had considered it. As the court pointed out there is no requirement for there to be an audit trail of each internal discussion between local authority officers on a pending planning application and of each decision which is made in the context of an on-going planning application and indeed to impose such a requirement would be too onerous and completely impractical for busy officers. The substantive application was therefore dismissed.
Impact of decision on future judicial review cases
Cases such as this should not be seen as meaning that cross-examination will become routine in judicial review. The cross-examination of Mr Burns in this case was necessary in order to resolve the issues in dispute. However, it may be that such an application would not have been necessary if the email of 15 July 2015 had been disclosed at an earlier stage in the proceedings rather than shortly before the hearing.
For more information on judicial review procedure generally, see Practice note, Judicial review procedure: a practical guide.