R (on the application of McVey and others) v Secretary of State for Health [2010] EWHC 437 (Admin), 2010] All ER (D) 46 (Mar)
The correct approach to disputed evidence in judicial review proceedings was that:
(i) the basic rule was that where there was a dispute on evidence in a judicial review application, then in the absence of cross-examination, the facts in the defendants’ evidence had to be assumed to be correct;
(ii) an exception to that rule arose where the documents showed that the defendant’s evidence could not be correct; and that
(iii) the proper course for a claimant who wished to challenge the correctness of an important aspect of the defendant’s evidence relating to a factual matter on which the judge would have to make a critical factual finding was to apply to cross-examine the maker of the witness statement on which the defendant relied.
