Cross-examination in judicial review

The High Court has rejected a parish council’s claim of legitimate expectation in a dispute over whether a district’s leader made a binding promise in a local meeting about the route of a ‘greenway’. Charles Streeten and Michael Feeney analyse the ruling.

Following a hearing at which five witnesses gave oral evidence, the High Court (Lieven J) has handed down judgment in R (Grantchester Parish Council) v Greater Cambridge Partnership [2025] EWHC 923 (Admin) dismissing the Claimant’s claim on all grounds.

The claim concerned a judicial review of a decision by the Greater Cambridge Partnership (GCP) in relation to its Greenways Project, a proposal for a network of greenways connecting outlying villages to the centre of Cambridge.

The Claimant’s particular concern was the proposal that the route of the Haslingfield greenway would go through the village of Grantchester. It argued that it had a substantive legitimate expectation that that route would not proceed in circumstances where a majority of Grantchester residents opposed it.

The claim was unusual in that the promise alleged to have created the legitimate expectation relied upon by the Claimant was said to have been given at a meeting between the Claimant and the Leader of South Cambridge District Council (SCDC) (who at the time was also a member of the GCP’s Executive Board) of which there was no contemporaneous record. The Leader and the GCP’s Head of Transport, both of whom were present at the meeting, denied that any such promise had ever been given. That was a dispute of primary fact which it fell to the Court to resolve.

Following the grant of permission for judicial review by Eyre J the Claimant applied for an order for cross-examination, following which Lang J ordered that five witnesses be cross-examined, namely: (1) the Chair of the Parish Council; (2) the Vice-Chair of the Parish Council; (3) a further member of the Parish Council; (4) the Leader of SCDC; and (5) The GCP’s Head of Transport.

The trial took place over three days and all witnesses-were cross examined.

In giving judgment, Lieven J followed the approach to assessing oral evidence for which the Defendant had contended, applying the dicta of Legatt J (as he then was) in Gestmin v Credit Suisse [2013] EWHC 3560 at para. 22 and more recently of Cockerill J in Jaffe v Greybull Capital LLP [2024] EWHC 2354 (Comm). Both judgments identify the fallacy of supposing that because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth, as well as identifying the importance of documentary evidence of memory and inherent probabilities (J77-78). In those circumstances, as Lieven J pointed out, oral evidence frequently does not, and did not in this case, much elucidate the situation (J59).

Lieven J nevertheless set out the evidence of the Claimant’s witnesses at J/60-69, recording that the concessions made included: (1) that the word ‘veto’ had not been used at the time and only appeared later in documents circulated by the Claimant (J61); (2) that the email (sent by the Claimant to the Defendant) closest in time to the meeting in question made no reference to the alleged promise of a veto, but referred only to a fresh consultation (J62); (3) that the part of a subsequent note purporting to record what occurred at the meeting when the promise was given represented the Parish Council’s commentary, rather than anything said by the Leader of SCDC at the meeting (J65); (4) that a subsequent parish newsletter characterised the promise as including giving local views “especial weight” (J66); (5) that the Vice-Chair of the Parish Council did not remember thinking during the meeting that what had been said by the Leader of SCDC meant the village had a veto (J68); and that it was only during discussions with the Chair of the Parish Council on the car journey home that the importance of what had been said occurred to him (J69).

For the Defendant, the evidence of the Leader of SCDC was that she had very little independent memory of the meeting, and Lieven J concluded that her evidence was based on what she thought she would have said, rather than actual memory of what she did say. She had accepted in her written evidence, that she might have said something along the lines of “the views of the village will be respected” but was clear that was in the sense of taking them into consideration, rather than necessarily complying with them (J70-71). The Head of Transport was clear that at no point in the meeting was a veto given, and that he would have intervened if he had heard the Leader of SCDC make any promise as alleged.

In light of all of the above Lieven J held that there was a strong element of “confirmation bias” in the Claimant’s evidence and that it was extremely unlikely that the Leader of SCDC would have given anything that amounted to a clear unequivocal promise that in effect the villagers would have a veto (J79).

Overall, dismissing the Claim on grounds of legitimate expectation, Lieven J:

1. Held that the level of detail and specificity required for a legitimate expectation to arise will depend on the context and consequences of the promise. Given the substantive nature of the legitimate expectation alleged, any promise would have to be “particularly clear and unequivocal” to give rise to a binding legitimate expectation (see J88-89).
2. Agreed with Counsel for the Defendant that to find a legitimate expectation of what was said in an oral conversation at an informal meeting with no minutes could open the floodgates to such claims, unless the evidence was very clear. It would also make it even more difficult for representatives of public authorities to have open and honest conversations because they would be so concerned about saying something that would then give rise to a claim like the present one. That does not mean that an oral promise could never give rise to a legitimate expectation, but it does make it even less likely to happen (J90).
3. Found, in light of all of the evidence and the principles above, that no binding promise of the requisite level of clarity and unequivocally was given (J91).
4. Went on to say that, even if that finding of fact was wrong, it was not reasonable for the Claimant to rely upon the promise allegedly given, not least as it knew that the Executive Board of the GCP was made up of three councillors and was a joint committee of three different authorities (J92-94).

Lieven J also rejected the Claimant’s second ground, which alleged a breach of the Tameside duty to inquire into the circumstances of the alleged promise by the GCP, rejecting the submission that there was a legal obligation that further investigation be conducted by an independent person, or by another officer of GCP.

The judgment will be of some interest to practitioners, given the exceptionality of disputes of fact resulting in orders for cross-examination in claims for judicial review, and Lieven J’s clear exposition of the contextual approach to determining whether an oral representation has given rise to a substantive legitimate expectation.

Charles Streeten is a barrister at Francis Taylor Building. He appeared for the successful Defendant (the Greater Cambridge Partnership) instructed by Pathfinder Legal Services and assisted by Michael Feeney, also of FTB, in earlier stages of the litigation.