Judicial review

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.