Tribunal wrong to assume post offices are closed on Sundays without evidence

The Court of Appeal has overturned an Upper Tribunal decision to refuse an extension of time application in a judicial review claim. The court held that the tribunal was wrong to take “judicial notice”, i.e. to accept as fact without the need for evidence on the basis that it is generally known, that post offices are closed on Sundays. The case is R (Baparee) v Secretary of State for the Home Department [2025] EWCA Civ 1464.

The deadline for the judicial review in this case was 3 April 2023 as the decision under challenge was made on 3 January 2023. On Sunday 26 March 2023 the appellant posted his judicial review application to the Upper Tribunal from Chelsea Royal Hospital post office.

The appellant instructed solicitors and on 22 April 2024 they emailed the Upper Tribunal to ask for an update and the tribunal replied to days later to say that there was no record of the application.

On 26 April 2024 the solicitors sent an application for permission for judicial review of the decision of 3 January 2023, accepting that the tribunal had not received the earlier application and asking for an extension of time. On 4 September 2024 the Upper Tribunal refused to admit the application because of discrepancies in the dates given for when it had been sent, and the lack of any evidence of proof of posting.

The application was renewed to an oral hearing and the discrepancies in dates were explained by the solicitors as typos. The appellant provided a witness statement and a certificate of posting dated 26 March 2023. He said that he was unaware of the procedures that needed to take place after sending the claim to the tribunal, such as service on the Home Secretary.

The tribunal raised concerns about the evidence that the application had been posted on a Sunday, as they did not believe that post offices were open that day. The appellant was questioned on this point and explained that the post office had been open.

The Upper Tribunal found that the underlying claim was arguable, however refused the application for permission on timely grounds.

The appellant appealed on the ground that the Upper Tribunal had made a material error of law in the taking of judicial notice that post offices do not open on Sundays. The Court of Appeal considered whether it was permissible for the tribunal judges to take their experience of post offices into account, and said:

The concept of judicial notice is discussed in chapter 3 of Phipson on Evidence (20^th ed.). Mr. Yarrow did not suggest that the explanation of that principle given in Scott was incorrect. Nor did he cite any authority to support the submission he had made to the UT that judicial notice applied to the matter in question. No attempt was made before the UT or before us to explain why it was a “notorious fact” that post offices do not open on Sundays. I would not accept that bold proposition…

The court also found it troubling that the implicit criticism of the appellant’s evidence that the post office had been open was not put to him “fairly and squarely”. The appeal was allowed and the case returned to the Upper Tribunal to re-determine the application for an extension of time as well as the question of permission for the judicial review.