Richards & Anor, R (on the application of) v Pembrokeshire County Council

J U D G M E N T

1. THE PRESIDENT: I shall ask Lord Justice Neuberger to give the first judgment.

2. LORD JUSTICE NEUBERGER: This is an application by the Pembrokeshire County Council, respondents to an appeal brought by Mr and Mrs Paul and Gillian Richards, against a decision of Mr Justice Moses to adduce further evidence on the appeal.

3. The issue before the learned judge was whether certain regulations with regard to parking in the centre of Tenby near Tenby Harbour were ultra vires. The new evidence which the council wishes to adduce consists of a witness statement of Mr John Vincent Price (which seeks to explain the thinking behind the adoption of the regulations by the council) and a second witness statement of Mr Carl Lloyd Evans, the Harbours Manager as he is now called, which contains evidence about, inter alia, the arguable harbour operation impact of the present parking problems in Tenby.

4. The basis upon which the new evidence is said to be justified by Mr Rhodri Williams, on behalf of the council, is because the Richards' case before the judge changed and they were given permission to amend their case on the date of the hearing on 9 October 2003. To quote from paragraph 32 of the judgment:

"The earlier arguments were based on unlawful actions under the Revision Order [Revision Order 1975], and what, in effect, was being argued was that the Revision Order, in its geographical description of the harbour estate, was outwith section 57 [of the Harbours Act 1964]."

The new issue which the judge permitted the Richards to argue was that the directions and parking regulations adopted by the council were ultra vires:

"....insofar as it relates to the raised terrace since the raised terrace (a) is not 'harbour' nor 'harbour land' as defined by s57 of the 1964 Act, (b) is incapable of achieving the objects specified in Schedule 2 to the 1964 Act, and (c) falls outside the ministerial objects specified in section 14(2) of the 1964 Act."

As reflected by the application for judicial review made by the Richards, their initial case was based on the contention that the land which they complained about being subject to the proposed regulations was, or should have been, outside the harbour area, and in so far as it was inside the harbour area that was ultra vires.

5. The new argument they sought to raise was that the adoption of the regulations were not in any way for the purpose of the operation of the harbour, but for other purposes connected with pedestrian safety and traffic management in the town centre.

6. In paragraph 33 of the judgment, the judge said that:

"The [new] argument advanced before me and set out within the proposed amendment is sufficiently close not to take the Council by surprise. Nor, in the light of evidence (to which I shall turn shortly) from the harbourmaster, is the Council prejudiced."

The question for us is whether to admit the new evidence in light of the facts as I have recited.

7. In so far as the evidence of the harbourmaster is concerned, it fleshes out (and it is only precisely relevant in so far as it fleshes out) the council's case that the traffic congestion in Tenby was interfering with the harbour operation and that the proposal adopted by the council, in so far as it related to the matter complained of by the Richards, would, or was intended to, ameliorate that situation. That is not evidence which the council could reasonably have been expected to have put forward before the court before the amended case was advanced on behalf of the Richards. Until the amended case was advanced, the council was facing an argument that the land with which the Richards were concerned was not properly part of the harbour or harbour land as a matter of law.

8. The argument which the council had to meet following the amendment was concerned with harbour operations. I can see that it can be said that some public bodies in the position of the council might have covered this issue in their evidence before the judge even on the unamended case, but I do not think it is fair to characterise the council as having been negligent in not putting forward evidence to deal with a case which was not put forward in advance of the hearing.

9. In this connection I have had regard to the fact that in paragraph 33 the judge thought that there was no criticism of the council. He took the view that in paragraph 14 of his first witness statement Mr Carl Lloyd Evans had dealt with this point, but I can see an argument for saying that the judge was over generous in this analysis of that paragraph. In so far as Mr Evans did deal with this issue in his first witness statement, it was perfunctory because he was not concentrating on the issue which, following the amendment, was the main argument (subject to Wednesbury unreasonableness and the Human Rights argument also raised by the Richards). In my judgment it would be unfair to the council if they were not permitted to put in Mr Lloyd Evans' second witness statement to deal with this issue.

10. We have been referred to Ladd v Marshall [1954] 1 WLR 1489 which still applies (see Hertfordshire Investments Ltd v Bubb [2000] 1 WLR 2318). In my view this is not a Ladd v Marshall case. It is a case where it would be unfair to one party if it was not entitled to put in further evidence on the appeal in light of a last minute amendment by the other party. It was suggested that the Richards had made their case known on this point when they exchanged skeleton arguments a month ahead of the hearing before Mr Justice Moses. I am not impressed with that. Until they obtained leave to raise the point, the council was entitled to proceed on the basis that the point was not permitted to be raised.

11. Before I pass from Mr Lloyd Evans' second statement, I wish to make two further points. Mr Lloyd Evans' statement deals in a number of places with other issues, in particular the ownership of the land. I think that it is unfortunate because it is simply not an issue which this court can determine any more than Mr Justice Moses was able to do. It also exhibits a large number of documents, albeit not long documents, all of which are said to support the view that there is a harbour operational issue in this case. I am not sure about the extent to which such details are helpful, but at this stage no point is taken on admissibility in the context of it in Mr Lloyd Evans' witness statement. At this stage, I am prepared to let it in.

12. It is obviously fair that the Richards have an opportunity to Mr Lloyd Evans' witness statement. We have been told by Mr Howells, who appears on their behalf, that they can have evidence in by Thursday or Friday. While it is a matter for my Lady and for argument, I would be inclined to give the Richards until 3.00 pm on Friday to file their evidence. I would not expect them to deal with matters other than the operational issues. Like Mr Williams, I am dubious as to whether they will be able to say anything helpful, but it would be unfair not to permit them to put in evidence in reply.

13. As to the evidence of Mr Price, initially I considered that it should be rejected for two reasons. The first was that it could have been put in earlier; the second was that it was inadmissible because it seeks to explain the reasons for the council's decision when those reasons should speak for themselves (see R v Licensing Authority for Goods Vehicles for the Metropolitan Traffic Area ex p Barrett Ltd [1949] 2 KB 17). I am persuaded that neither of those two reasons are justified. So far as the first reason is concerned, it is ultimately to be admitted for the same reason as the evidence of the Harbours Manager, namely that it is concerned with putting flesh on the alleged harbour operational difficulties which were not previously an issue.

14. As to admissibility, it may well be that Mr Price's evidence is inadmissible or it may be that it is admissible on the ground that it does not seek to give reasons for the regulation to be adopted, it seeks to explain them. I say nothing about whether the statement of Mr Price should be admissible and whether it would help the council. I think the sensible course is to allow the statement to be adduced, but on the basis that either its weight may be nil or even that it may prove to be inadmissible. I think it should be before the court even though it may turn out to be inadmissible.

15. On that basis I would allow this application.

16. THE PRESIDENT: I agree with the judgment of my Lord that we should allow the application. I agree that both statements should go in. I agree with the reasons for viewing the statement of Mr Price with some degree of hesitation, not to say scepticism, but its actual value, if any, can be argued extremely briefly at the hearing next week.

17. So far as the evidence of Mr Carl Evans, I would like to underline the point made by Lord Justice Neuberger that only the relevant issues in that further statement need to be addressed and those can be addressed quite shortly.

18. It would only be just to allow this evidence to be given in the light of the point made by my Lord in his judgment. Clearly Mr and Mrs Richards must have the opportunity to respond. Unless there is any objection from anyone, 3 pm on Friday would be the deadline.

19. Although Mr Chapman was unable to be present for this hearing, Mr and Mrs Richards should know that it has made absolutely no difference to the way which this case has been dealt with that they did not have Mr Chapman here. Mr Howells has said everything that could be said and was stalwart in defending the position of the Richards in this very difficult case.

Order: Application to adduce further evidence allowed. Additional evidence in response to be filed by 3 pm on Friday 11June 2004 to be sent direct to The President's chambers. Any further brief submissions to be filed by 10 am on Monday 14 June 2004, again to be sent direct to The President's chambers. Costs to be costs in the appeal.