Another one for Robert’s philosophy corner – what is “new evidence”?
In the recent Bancon case, the Court of Session agreed with the appellants that the reporter had determined the appeal on the basis of new evidence, gathered on the site visit, without the appellants being given an opportunity to make representations.
The written submissions had focused on the narrow issue of the inability to formalise a proposed pedestrian and cycle linkage, whereas the reporter went on to consider whether the link was the most favourable of 3 informal routes which were available.
The Court acknowledged this was a relevant matter for him to consider, but fairness required him to give the parties an opportunity to make representations on that matter, since the parties had not provided evidence on the 2 other possible routes.
It’s a reminder that, irrespective of how abbreviated the appeal procedure might be, there is still an overriding requirement for fairness. The parties must be given a “fair crack of the whip”.
On October 11, 2011