Inquiry — Allegation of bias and breach of rules of natural justice — Whether inspector can be cross-examined
At the conclusion of a planning inquiry
the first appellant, Anthony Lyndon Jones, alleged that he saw the inspector
and the second respondents’ representative alone together apparently reading a
document. In applying to quash the decision to dismiss a planning appeal, the
appellants alleged bias, breach of the Town and Country Planning Appeals
(Determination by Inspector) (Inquiries Procedure) Rules 1992 and the rules of
natural justice. In the court below the judge dismissed the appellants’
application to cross-examine the inspector on his affidavit in which he denied
the allegations. The appellants appealed.
It is undesirable that a person holding a
quasi-judicial office should be exposed to cross-examination. But if there is
evidence that leads to an inference of improper behaviour on the part of the
inspector then cross-examination on the affidavits should be allowed. If the allegations
are unjustified then the court has sufficient power to mark its disapproval of
their conduct by an award of costs: see p32F. The appellants should also be
allowed to adduce the evidence of their planning consultant: see p32G.
Saville J dissenting
Mere assertion of wrongdoing is not
enough to demonstrate that justice for the applicants requires an order for
cross-examination. The applicants have not demonstrated that there is a bona
fide issue to be tried: see p37A.
Behrman v Secretary of State for the
Environment [1979] JPL 677
George v Secretary of State for the
Environment (1979) 77 LGR 689; 38 P&CR 609; [1979] 1 EGLR 30; 250 EG
339; [1979] JPL 382, CA
O’Reilly v Mackman [1983] 2 AC 237; [1982]
3 WLR 1096; [1982] 3 All ER 1124, HL
R v Secretary of State for the Home
Department, ex parte Khawaja [1984] AC 74; [1983] 2 WLR 321; [1982] 1 WLR
948; [1983] 1 All ER 765, HL(E)
Read (Richard) Transport v Secretary of State for
the Environment unreported December 14 1993
Appeal against the decision of Mr David
Widdicombe QC
This was an appeal brought by the
appellants against the decision of Mr David Widdicombe QC, sitting as a deputy
judge of the High Court, on
cross-examine the respondents.
Reading) appeared for the appellants, Anthony Lyndon Jones and William Edward
Jones.
Treasury Solicitor) appeared for the first respondent, the Secretary of State
for Wales.
Borough Council, did not appear and were not represented.
BALCOMBE LJ: The appellants (a father and son) are
the owners of land at Llandow, South Glamorgan, where they run the Welsh
National Equestrian Centre. In May 1993 they applied for planning permission to
change the use of a barn on the land to use for residential purposes. That
application was refused by the second respondents, Vale of Glamorgan Borough
Council (‘the council’). The appellants appealed that decision and the first
respondent, the Secretary of State for Wales, appointed an inspector, Mr Edward
Colin Davies (‘the inspector’), to determine the appeal. The inspector held a
local inquiry into the appeal at the offices of the council on December 7 1993.
The appellants attended the inquiry with a planning consultant, Mr Mark Davies,
as their representative; the council were represented by a barrister in their
employ, Mr Michael James Le Mesurier Hurley.
The inspector dismissed the appeal by a
decision letter of January 11 1994. On February 18 1994 the appellants lodged
their notice of motion in the High Court under section 288 of the Town and
Country Planning Act 1980 seeking to quash the inspector’s decision. The
grounds for the application (so far as relevant and as shown in the amended
notice of motion) are as follows:
The First Respondent erred in law
alternatively his decision was not within the powers of the Act in the
following respects.
1. There was a real possibility of bias
on the part of the Inspector, having regard to his behaviour both before and after
the close of the inquiry.
2. Further or in the alternative, in
breach of Regulations 15(10) and 17(2) of the Town and Country Planning
Appeals (Determination by Inspectors) (Inquiries Procedure) Rules 1992, the
Inspector took into consideration new evidence not raised at the inquiry,
without affording the Applicants an opportunity to comment on it.
3. Further, or in the alternative, in
breach of the rules of natural justice, the Inspector had regard to matters or
evidence after the close of the inquiry without giving the Applicants an
opportunity of commenting thereon.
There is another ground not relevant to
the present appeal.
The evidence in support of the
application consisted of an affidavit by the first appellant, Mr Anthony Lyndon
Jones (‘the son’), and an affidavit by the second appellant, Mr William Edward
Jones (‘the father’).
In paras 9–13 of his affidavit the son
sets out in some detail the movements of himself, the father, the inspector and
Mr Hurley at the end of the inquiry. The essential parts of his evidence are
the following passages from paras 11 and 14:
11. In the meantime, I was back outside
the inquiry room and was in the process of opening one of the double doors
which lead into the inquiry room. Just as I did that, I heard the unique
whistle of my father, a whistle I know well, which I took to mean that he had
discovered a way out and was calling me back. However, I had already partly
opened one of the doors to the inquiry room and as I did so, I noticed that the
Inspector and Mr Hurley were standing, very closely together, with their backs
towards me at the other end of the committee room by the other door. I could
clearly see that Mr Hurley was holding a document, of about A4 size, in one
hand and pointing to a certain part of it with the other. The Inspector was
looking at the document and appeared to be paying attention to what Mr Hurley
was pointing at. The two men were in conversation, although I could not hear
what they were saying …
14. I am unable to say what was actually
being discussed between the Inspector and Mr Hurley, save that they were
discussing something relating to the document that Mr Hurley was holding and
pointing to. As far as I am aware, neither Mr Hurley nor the Inspector knew
that I had seen them in discussion over the document.
The father in his affidavit corroborated
the son’s accounts of the movements of the parties at the end of the inquiry,
but said that he had not witnessed the scene of the inspector and Mr Hurley in
discussion as described by the son. However, he went on to say:
2. In addition, I bring to the attention
of this Honourable Court the following matter. During the course of the
inquiry, during the morning session, a question arose about a document. I do
not know which document was being referred to at the time. However, the
Inspector’s attention had been drawn to the document and he started looking for
it on his desk. He then said words to the effect
‘Oh,
it’s all right, I’ve found it. It was given to me by Mr Morgan in his office
earlier this morning’.
Mr Morgan, is, of course, the planning
officer who gave evidence at the inquiry on behalf of the Council.
3. I do not know why, or in what
circumstances, the Inspector was entitled to visit Mr Morgan in his office,
whether it be for the purposes of collection of a document or otherwise. It
seems to me strange, to say the very least, that the Inspector has obtained
certain documents from the Council by visiting the planning witness’s office
prior to the inquiry. Like my son, I am bound to draw the obvious inference,
from what I have heard and observed, that the Inspector behaved in a manner
which suggests bias.
Mr Hurley swore an affidavit on May 19
1994 and, after stating that he had read the son’s affidavit, said:
I do not remember the events which he
describes to support his conclusion of bias. I do, however, reject the idea
that I may have discussed the case with
that the inspector behaved with bias.
3. After the close of a planning inquiry
I try, whenever possible, to sort my papers out before leaving. This probably
happened in this case. If I was seen looking at a document with the inspector
it would only have been to check that I was not inadvertently about to take something
which belonged to him.
Mr Morgan also swore an affidavit on May
19 1994 denying that the inspector had seen him his office before the inquiry,
adding:
All my dealings with the inspector
occurred during the proceedings of the inquiry which was held in a Committee
Room in the Civic Offices of the … Council.
The inspector swore his affidavit on May
13 1994. He, too, denied the father’s allegation, saying:
At no time did I indicate that I had been
given any document by Mr Morgan in his office earlier that morning, nor had I
met him before I opened the inquiry.
He also denied the son’s allegations. He
disagreed with the son as to the detail of the parties’ movements at the end of
the inquiry, giving his own version of those movements in some detail. As to
the son’s central allegation he said:
When I left the room. Mr Hurley did not
then or at any time after the inquiry had been closed attempt to show me or
draw my attention to or discuss in any way any documents as alleged by [the
son] …
At all times during the inquiry I acted
impartially and fairly. I decided the Applicants’ appeal on its merits. I
strongly resist their allegations that I was biased in any way.
It was in this state of the evidence that
the case came before Mr David Widdicombe QC, sitting as a deputy High Court
judge, on June 7 1994. He was immediately faced with applications by counsel
for the appellants for leave to file further affidavit evidence on their behalf
in reply to that sworn on behalf of the respondents and for leave to cross-examine
the inspector, Mr Hurley and Mr Morgan on their affidavits. He refused both
applications, but granted leave to appeal to this court.
The evidence sworn on behalf of the
respondents was well outside the time-limit of 21 days imposed by RSC Ord 94, r
3(3). Nevertheless the appellants quite properly do not challenge the judge’s
decision to admit that evidence in the circumstances of the present case. They
submit that the judge should also have exercised his discretion to allow the
appellants to file further affidavit evidence in reply. They sought to file
another affidavit by the son dealing with points of detail as to the movements
of the parties, and an affidavit by their planning consultant Mr Davies, to
corroborate their account of those movements, although not going to the central
allegation of the discussion between the inspector and Mr Hurley.
The judge rightly took the view that the
issue of cross-examination was the more important and only gave leave to appeal
against his ruling on the admission of further evidence because he had granted
leave to appeal about cross-examination. In my judgment, he was right to treat
the two issues as linked. Where, as here, there is a conflict of fact, and
particularly where that conflict relates to allegation of impropriety, the
judge is not helped by a proliferation of evidence on paper. So I deal first
with the issue of cross-examination.
The principle is clear–that
cross-examination will be allowed when the justice of the case requires and the
decision whether justice so requires is a matter for the discretion of the
judge: see George v Secretary of State for the Environment [1979]
JPL 382, per Lord Denning MR at p383; O’Reilly v Mackman
[1983] 2 AC 237, per Lord Diplock at pp282–3; R v Secretary of
State for the Home Department, ex parte Khawaja [1984] AC 74 per
Lord Bridge of Harwich at pp124–5. However, the application of that principle
in planning cases, where the deponent sought to be cross-examined is the
inspector who held the inquiry, has given rise to difficulties. In Behrman
v Secretary of State for the Environment [1979] JPL 677, Forbes J was
faced with an application to cross-examine the inspector. After citing the
words of Lord Denning MR in George v Secretary of State for the
Environment (supra)–that in proceedings for judicial review or in
applications for compulsory purchase orders cross-examination should in general
not be allowed, the exception being when the court believed it necessary in
order that justice might be done between the parties–he refused to allow
cross-examination on the affidavits. Forbes J is reported as saying (at p 679)
that it would be impossible to determine the factual issue without calling the
inspector himself and having him subjected to cross-examination, and that would
be a most undesirable practice to follow. The comment which follows this report
contains the following passage:
However, where you have complete conflict
over a question of fact, and it is accepted that the case would turn on whose
version is to be accepted, then it does seem that justice can only be done by
allowing cross-examination. Otherwise it does create a dangerous temptation for
the falsification of affidavits if it is known that they will rarely be tested
in open court.
A more recent example of the difficulty
in a case of a statutory planning appeal is the decision of Laws J in Richard
Read Transport v Secretary of State for the Environment December 14
1993 (unreported). After referring to the authorities, starting with George
v Secretary of State for Environment (supra) the judge said
(transcript p3D):
While there is jurisdiction to order
cross-examination in such proceedings as this, it is to be exercised extremely
sparingly, only where the justice of the case requires it. One of the principal
reasons for this is if it is sought to cross-examine an inspector or a
magistrate, it is, in general, undesirable that such application should be acceded
to because inspectors and magistrates occupy, in one case, quasi-judicial, and,
in the other, judicial office. There are great risks and dangers in bringing
about a state of affairs where officers of that
witness box. The court would only accede to an application of this kind if the
justice of the case so compellingly pressed for that result that there was no
proper alternative.
In that case the question was whether a
particular point, with which it was said the inspector had failed to deal, was
a central or principal issue at the inquiry. The judge held that there was
objective material available to answer that question, ie proofs of evidence,
the council’s preinquiry statement and citations from the oral testimony
contained in the affidavits, which enabled him to answer that question, without
the necessity of cross-examining the inspector on his sworn denial that the
point was central and principal.
I have already said that the question of
cross-examination or no cross-examination is one for the exercise by the judge
of his discretion, with which this court will not interfere, unless he has
misdirected himself. In the present case the judge properly directed himself as
to the law and continued:
First of all, I would not be prepared to
allow general cross-examination here for reasons of credibility, because I have
been given no reason to doubt that all the affidavit evidence here has been
given in good faith. There are some clear differences as to what happened, and
[counsel] has identified the four main points. I need not now go over them.
There are four differences as to what happened. It seems to me that these are
clear differences of recollection between the deponents, as to what happened,
and I take the view that these differences–such as they are–as to whose
evidence I should or should not accept in the circumstances, can be dealt with
by way of submission.
If, in the course of hearing the case, it
turns out that on any particular issue of fact cross-examination might assist
in elucidating the facts for the assistance of the Court, then the application
for cross-examination can be renewed with an adjournment, if necessary, but at
the moment I have been given no convincing reason why, if I allowed
cross-examination, the Court would get any greater assistance on determining
what actually happened than it can get from reading the affidavits with the
benefit of submissions on them by counsel. So the application for cross-examination
in the circumstances of this case, is refused.
I am unable to understand on what basis
the judge was able to say, simply by reading the affidavits, that all the
evidence had been given in good faith, and that the differences were no more
than differences of recollection. Unlikely as it may seem, it is undoubtedly
possible that the appellants have concocted their story in order to establish
grounds for an appeal; it is equally possible that the inspector may not be
telling the truth. Accordingly, I am satisfied that the judge did misdirect
himself and that his exercise of his discretion is open to review by this court
and we are entitled, if we think fit, to substitute our discretion for his.
Before us the first respondent accepted
that if the appellants could establish any of the matters set out in paras 1–3
of the grounds set out in their amended notice of motion, that could be a
sufficient reason for quashing the decision letter. So on this part of the
appellants’ case they
he took into account new matters after the close of the inquiry, without giving
the appellants an opportunity to comment. The matters relied on as constituting
bias, or the appearance of bias, are the alleged discussion between the
inspector and Mr Hurley after the close of the inquiry, and the allegation of a
meeting between the inspector and Mr Morgan before the inquiry.
If the appellants’ affidavit evidence had
stood alone there would not, in my judgment, have been sufficient evidence to
establish either ground of complaint. Even accepting the son’s evidence of what
he saw as true, I would not be prepared to infer from that that the inspector
had received fresh evidence from Mr Hurley after the close of the inquiry. Nor,
even if the inspector had said that he had obtained a document from Mr Morgan
that morning, would I infer from that the appearance, or possibility, of bias
on the part of the inspector. Nor, in my judgment, is that position altered by
the affidavits of Mr Hurley and Mr Morgan.
My difficulty arises from the denial by
the inspector of the precise movements of the parties after the close of the
inquiry, as set out by the son, and the inspector’s own detailed account of
those movements. These two accounts appear on their face to be sufficiently
different as not inevitably to be attributed to a difference of recollection;
there is at least the possibility that one or the other is deliberately
untruthful. And if that possibility is to be attributed to the affidavit
evidence of the inspector, it immediately raises the question: why should he
not tell the truth about the matters which on their face appear to be harmless
or, at best, equivocal? A possible answer is that he has something to conceal.
In my view, justice to the parties, as
well as to the inspector himself, requires that these disputed questions of
fact, on which are based allegations of impropriety, should be tested in the
normal way by cross-examination of the deponents. I share the view of Forbes J
and Laws J that it is usually undesirable that a person holding a
quasi-judicial office should be exposed to cross-examination. Nevertheless if
there is evidence before the court which, unless satisfactorily explained,
could lead to an inference of improper behaviour on the part of the inspector,
then, in my judgment, the court should allow cross-examination on the
affidavits. If the appellants’ allegations should turn out to be unjustified
then the court has sufficient power to mark its disapproval of their conduct by
an award of costs, even if they were to establish their challenge to the
validity of the decision letter on other, less contentious, grounds.
Once it is accepted that
cross-examination on this point is permissible, then it seems clear that the
evidence of Mr Mark Davies should also be admitted.
Accordingly I would allow the appeal,
discharge paras 2 and 3 of the Order of June 7 1994 and in their place direct:
(1) that the appellants be allowed to file the affidavit evidence of Mr Mark
Davies relating to the matters which took place at the inquiry held on December
7 1993; and (2) that on the appellants undertaking themselves to attend, and to
use their best endeavours to procure the attendance of Mr Mark Davies, for
cross-
Hurley be required to attend for cross-examination on their affidavits. If the
appellants are unable to procure this attendance of Mr Mark Davies for
cross-examination his affidavit will not be admissible.
ROCH LJ: I agree. Because I am aware that
Saville LJ takes a different view and because allowing the appeal involves
overruling the exercise of a discretionary power by the deputy judge I propose
to give the reasons for the conclusion I have reached.
The first two grounds of the appellants’
application to the High Court for the Secretary of State for Wales’ decision
dated January 11 1994 to be quashed were that there was a real possibility of
bias on the part of the inspector who held the inquiry and, second, that the
inspector had taken into consideration new evidence not raised during the
inquiry, without affording the appellants an opportunity to comment upon it. Mr
William Edward Jones in his affidavit deposed to the incident which he alleges
occurred during the course of the inquiry in which the inspector said that he
had been given a document by Mr Morgan in his office earlier that morning. Both
the inspector and Mr Morgan in their affidavits deny that any such statement
was made by the inspector and further deny that the inspector had been to Mr
Morgan’s office that morning prior to the opening of the inquiry.
Mr Anthony Lyndon Jones in his affidavit
states:
9. The Inspector declared the inquiry
closed at about 5.35 pm. Mr Davies and I collected up our papers and packed
them into boxes … As Mr Davies, my father and I walked to one exit door, I
noticed the Inspector had also begun moving to the other exit door, carrying
his briefcase. Mr Davies, my father and I left the inquiry room and proceeded
to leave the building by the way we had entered. Unfortunately, on arrival at
the main front doors, we found them to be locked. We decided to wait for a few
minutes in the hope that someone would appear.
10. After two or three minutes, my father
and I decided to go back to get the assistance of Mr Hurley, as a council
officer, to let us out. Mr Davies, my father and I proceeded back towards the
inquiry room. Before we reached the inquiry room we put our boxes down in a
landing area … My father stayed with our boxes of papers and I continued to go
back to the inquiry room …
11… . However, I had already partly
opened one of the doors to the inquiry room and as I did so, I noticed that the
Inspector and Mr Hurley were standing, very closely together, with their backs
towards me at the other end of the committee room by the other door. I could
clearly see that Mr Hurley was holding a document, of about A4 size, in one
hand and pointing to a certain part of it with the other. The Inspector was
looking at the document and appeared to be paying attention to what Mr Hurley
was pointing at. The two men were in conversation, although I could not hear
what they were saying.
12. As I have indicated, just at this
point, I heard my father whistling to me and I then turned round to see him
beckoning me back. I returned to the landing area …
13. From the time Mr Davies, my father
and I left the committee room to the point of the Inspector appearing on the
landing (ie after I had observed
had passed.
14. I am unable to say what was actually
being discussed between the Inspector and Mr Hurley, save that they were
discussing something relating to the document that Mr Hurley was holding and pointing
to. As far as I am aware, neither Mr Hurley nor the Inspector knew that I had
seen them in discussion over the document.
In the affidavit of Mr Hurley, these
passages appear:
2. I do not remember the events which he
(Anthony Lyndon Jones) describes to support his conclusion of bias. I do,
however, reject the idea that I may have discussed the case with the inspector
other than during the inquiry proceedings–and also the view that the inspector
behaved with bias.
3. After the close of a planning inquiry
I try, whenever possible, to sort my papers out before leaving. This probably
happened in this case. If I was seen looking at a document with the inspector
it would only have been to check that I was not inadvertently about to take
something which belonged to him.
Thus, Mr Hurley’s evidence is to the
effect that Mr Anthony Lyndon Jones might have observed a scene such as he
describes in his affidavit, but if he did, that would not connote improper
behaviour on the part of the inspector.
The inspector in his affidavit states:
4. … I disagree with the allegation made
by Anthony Lyndon Jones contained in paragraph 9 of his affidavit that as he
walked to one exit door with his father and Mr Davies, I had begun to move to
the other exit door carrying my briefcase.
5. At the time that the appellants and Mr
Davies left the room I had several documents on my desk, including one or two
which required folding. The appellants could see my desk quite clearly and it
would have been obvious to them that it would take me a little time to pack my
briefcase.
6. When I had put all the documents into
my briefcase I immediately left the room. As I left I said ‘Good evening’ to Mr
Hurley who has a habit of standing when he is spoken to. I am sure that he
stood up on this occasion. I cannot recall any other comments being made
although it is possible that he may have asked if I had far to travel. When I
left the committee room I observed that he was sitting down writing. I did not
time myself but I cannot believe that I spent more than 3 to 4 minutes in the
committee room after the appellants had left.
7. When I left the room, Mr Hurley did
not then or at any time after the inquiry had been closed attempt to show me or
draw my attention to or discuss in anyway any documents as alleged by Anthony
Jones in paragraph 11 of his affidavit.
The conflict between the contents of
Anthony Lyndon Jones’ affidavit and that of the inspector is stark. There is
conflict as to the stage the inspector had reached in packing up his papers at
the moment the appellants and Mr Davies, their expert, left the inquiry room.
There is a conflict as to the length of time the inspector remained in the
inquiry room
significantly, there is a total conflict on the question whether at any time
after the appellants and their witness had withdrawn from the inquiry room and
before the inspector left it, the inspector and Mr Hurley could have been
observed standing side by side looking at a document and talking to each other.
The matters deposed to by the appellants
are matters capable of belief. The evidence of Anthony Lyndon Jones as to what
he saw is not contradicted by Mr Hurley albeit that the suggested implication
is denied and an innocent explanation advanced.
The inspector’s affidavit is quite
different from that of Mr Hurley. On the inspector’s affidavit Mr Anthony
Lyndon Jones could not have seen anything of the sort described in his
affidavit and in deposing that he saw the scene described in para 11 of his
affidavit Mr Anthony Lyndon Jones was describing an event which simply did not
occur.
The other side of the coin is this, that
if Mr Anthony Lyndon Jones is correct that the inspector delayed his departure
from the inquiry room and did stand beside Mr Hurley scanning a document that
Mr Hurley was holding and pointing to while engaging in conversation with Mr
Hurley, if that were to be the finding of a court, the appellants, in the light
of the inspector’s denial that any such thing had occurred, would have a
powerful argument that the court should infer that the inspector had after the
close of the inquiry considered further material which he should not have done.
I cannot conceive that these issues can
be resolved on a reading of the affidavits. The allegations that the appellants
make in the first two grounds of their application are serious and need to be
resolved. If the allegations are without foundation, then that should be stated
by the court. Equally, if there has been a departure from the rules of natural
justice in the consideration of this planning appeal, then that should be
established and the decision overturned.
In my judgment, that exercise can only be
carried out in a way in which justice can be seen to be done by the witnesses
giving evidence on oath and being subjected to cross-examination. These are not
issues which, in my view, can be resolved by the reading of what are prima
facie credible accounts of what occurred. For a satisfactory determination
of the issues the court needs the advantage of seeing and hearing the
witnesses.
The deputy judge in his judgment said at
p4A:
First of all, I would not be prepared to
allow general cross-examination here for reasons of credibility, because I have
been given no reason to doubt that all the affidavit evidence here has been
given in good faith.
A little later at p4D the judge said:
But at the moment I have been given no
convincing reason why, if I allowed cross-examination, the court would get any
greater assistance on determining what actually happened than it can get from
reading the affidavits with the benefit of submissions on them by counsel. So
the application for cross-examination in the circumstances of this case, is
refused.
With respect I disagree with the deputy
judge on both of these matters. The differences between the accounts of the
inspector and of Mr Anthony Lyndon Jones are such that they form reasons for
doubting that all the affidavit evidence has been given in good faith. The
added assistance in determining what actually happened that a court will,
derive from an order allowing evidence to be given on oath and subjected to
cross examination is all too evident.
In O’Reilly v Mackman [1983]
2 AC 237 at p282H Lord Diplock said:
… this [is] an appropriate occasion on
which to emphasise that whatever may have been the position before the rule was
altered in 1977 in all proceedings for judicial review that have been started
since that date the grant of leave to cross-examine deponents upon applications
for judicial review is governed by the same principles as it is in actions
begun by originating summons; it should be allowed whenever the justice of the
particular case so requires.
In my judgment, this is one of those rare
cases where the justice of the particular case does require the granting of
leave to cross-examine deponents. For those reasons I would allow this appeal.
SAVILLE LJ: The authorities establish that in cases
of the present kind the principle is that cross-examination will only be
allowed when the justice of the case requires it and that the decision whether
to allow cross-examination is a matter for the discretion of the deputy judge.
In these circumstances the first question
that arises in this case is whether there are any grounds upon which this court
can interfere with the discretion exercised by the deputy judge in refusing to
allow cross-examination.
It appears from the judgment that the
deputy judge exercised his discretion as he did because he concluded that he
had no reason to doubt that all the affidavit evidence had been given in good
faith, and that such differences as there were between the deponents were
differences of recollection. Thus it seemed to the deputy judge that no purpose
would be served by allowing cross-examination, since the matter could be dealt
with by way of submissions.
I agree that on one interpretation of the
judgment this can be said to be an incorrect basis for exercising the
discretion, for it could be said to beg the question whether the differing
accounts are put forward in good faith and are merely the product of
differences of recollection. If one starts off with an assumption either way,
then the answer to the question whether or not there should be
cross-examination will in all probability depend on which assumption is taken,
and will accordingly be of no value.
To my mind, the starting point must be to
examine the material in question and to inquire first whether that material
gives rise to grounds supporting the particular assertions of wrongdoing that
the applicants make, in this case of a real danger of bias on the part of the
inspector, or his reception of evidence without giving the applicants a chance
to comment on it or (which is really to say the same thing in different words)
a failure on his part to follow the rules of natural justice. Mere assertion of
wrongdoing cannot be enough, for justice is even-handed; and to subject
respondents to cross-examination simply on the basis of unsupported assertions
by applicants would cast an onerous (ie unjust) burden on the former for what
would ex hypothesi be no good reason. In other words, unsupported
assertions by their very nature do not demonstrate that justice for the
applicant requires an order for cross-examination. On the contrary, in such
circumstances an order for cross-examination would be likely to do justice to
neither party and injustice to the respondents.
If an applicant can demonstrate that
there are grounds for asserting wrongdoing, or in other words that there is on
the face of it a proper issue to be determined, then the remaining question is
whether cross-examination is needed so that that issue can be properly (ie
fairly) tried. The answer to that question again depends, of course, on the
circumstances of the case under consideration.
In the present case the applicants have
deposed to facts from which they seek to draw the inference that there was what
I have described as wrongdoing of the kind alleged. I would not myself, without
more, draw that inference, nor would I accept that the factual matters deposed
to, assuming them to be true, lead one to suppose that there may have been some
such wrongdoing on the part of the inspector, so that there was an issue
properly to be tried.
In his affidavit the inspector has
expressly denied much of what the applicants have asserted. It is submitted
that this denial might not be so much an innocent difference of recollection as
an attempt deliberately to conceal the true position; and that if this is so
then (which is self-evident) the applicants’ case will clearly be greatly
strengthened. On this basis it is suggested that only cross-examination will
enable this issue to be properly tried. It is also submitted that in any event,
even if the true position is that there is but a bona fide difference of
recollection, only cross-examination will assist in determining which version
of events is to be preferred.
I am not persuaded by either of these
submissions. As to the first, it seems to me that the fact that the inspector
has put forward a version of events differing sharply from that of the
applicants really carries the matter no further, unless it is assumed that the
inspector had or might have had an ulterior and wrongful motive for so doing.
There is nothing which begins to suggest that this was or even may have been
the case. In other words, I cannot accept the proposition that the applicants
have demonstrated that there is a proper issue to be tried as to the bona
fides of the inspector.
As to the second submission, this again
carries the matter no further; for as I have already observed, even if the
applicants’ account of events is to be preferred, this would not lead, at least
in my view, to the conclusion that there was or may have been any wrongdoing of
the kind alleged on the part of the inspector.
In these circumstances therefore, I am of
the view that the applicants have not demonstrated that justice requires there
to be cross-examination in the present case, since, to my mind, they have not
demonstrated that there are proper issues to be tried which require
cross-examination for their
version of events was to be accepted, then, depending of course on the
circumstances, there might well be a need in justice for cross-examination,
but, to my mind, this is not such a case, for the reasons that I have given.
It is possible that the deputy judge was
in truth not proceeding on the basis of making unwarranted assumptions and
resting the exercise of his discretion upon them, for the other interpretation
of his judgment is that he too was not satisfied that the applicants had shown
that there was an issue as to the bona fides of the inspector which
ought to be tried and which required cross-examination, nor that the case
turned on which version of events was to be accepted, which also required
cross-examination. Be that as it may, I am not satisfied that justice calls for
cross-examination in this case, and since I also agree that the deputy judge’s
refusal to allow the applicants to adduce further affidavit evidence is not
open to valid criticism, I would dismiss this appeal.
Appeal allowed.
