No Judicial Notice of Sunday Post Office Hours: The Court of Appeal on the Limits of Judicial Notice, Procedural Fairness, and Fresh Evidence in Immigration Judicial Review

Case: Baparee, R (On the Application Of) v Secretary of State for the Home Department [2025] EWCA Civ 1464

Court: Court of Appeal (Civil Division)

Judges: Lord Justice Holgate (lead), Lord Justice Singh agreeing

Date: 14 November 2025

Introduction

This judgment addresses a deceptively simple but procedurally consequential question: can a tribunal rely on its own “experience” to find that post offices are not open on Sundays, and use that to reject a litigant’s evidence and refuse to admit a judicial review claim as out of time? The Court of Appeal answers with a firm no. The decision clarifies the stringent limits on judicial notice, the proper procedural response to late-emerging factual points raised by the bench, and the disciplined approach to fresh evidence on appeal in public law litigation.

The appellant, a Bangladeshi national, sought to challenge a Home Office decision that his in-country application for leave to remain (as a dependant under the Overseas Business Representative route) was invalid because he had last been granted leave as a visitor. His case engaged the Home Office’s Covid-19 “exceptional assurance” policy. The Upper Tribunal (UT) accepted that his merits argument was arguable, but refused to admit his judicial review due to delay, holding it was not satisfied that he had posted an application within the three-month time limit. A decisive plank of the UT’s reasoning was its belief—described as “our experience”—that post offices do not open on Sundays. The Court of Appeal held this was a material error of law.

Summary of the Judgment

• Judicial notice error: The UT erred in law by relying on its own “experience” that post offices do not open on Sundays to undermine the appellant’s veracity and to reject his evidence that he posted his claim on a Sunday (paras 58–64). Judicial notice is reserved for facts which are notorious or capable of immediate accurate demonstration; the UT’s approach did not meet that standard (citing Scott v Attorney General of the Bahamas [2017] UKPC 15 at [40]–[41]).
• Materiality: The error was material. The Sunday-opening premise permeated the UT’s assessment of credibility, the authenticity of the certificate of posting, and the extension-of-time decision (paras 57–61).
• Procedural fairness: When the bench raises a new factual point (here, Sunday opening), the point must be put fairly to the witness and, if maintained, supported by evidence or a proper application for an adjournment to obtain such evidence (paras 65, 74). Reliance on “judicial notice” was misconceived.
• Fresh evidence on appeal: Both sides sought to adduce fresh evidence about whether the relevant post office opened on Sundays in March 2023. Applying CPR Part 52 and the Ladd v Marshall principles (as informed by Terluk v Berezovsky), the Court refused to admit fresh evidence: it was material that could have been obtained with reasonable diligence for the UT hearing, and the “exceptional circumstances” threshold in public law was not met (paras 72–77). In any event, the fresh evidence did not clearly neutralise the UT’s error.
• Outcome: Appeal allowed; Respondent’s Notice dismissed; the matter remitted to a differently constituted UT for a fresh determination of the extension-of-time application and permission to apply for judicial review (para 78). Lord Justice Singh agreed (para 79).

Background and Procedural Context

Factual Background

• The appellant, Mr Mohammed Baparee, entered the UK with his family on visitor visas on 3 September 2020. Covid-19 disrupted their intended departure; all tested positive in February 2021 (paras 2–3).
• He obtained “exceptional assurance” until 1 October 2021, with the promise of no detriment as an overstayer during that period (para 3).
• His wife applied on 7 May 2021 for leave to remain as an Overseas Business Representative (OBR), and she and their son were granted leave until 16 August 2024 (paras 4).
• On 31 August 2021, Mr Baparee applied in-country for leave as a dependant of an OBR migrant (para 5).
• The Home Office initially refused his application on the ground he could not switch from visitor leave (paras 6), then withdrew that decision on administrative review because the wrong rules had been applied (para 7), but again decided on 3 January 2023 that the application was invalid for the same underlying reason—contrary to its earlier recognition that the wrong rules had been applied (paras 8–9).

The Judicial Review and the Time Limit Issue

• The three-month period for the UT to receive any judicial review application expired on 3 April 2023 (para 18). The procedural rules require actual receipt by the UT within the time limit (rules 28(2), 28(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008) (paras 13–14).
• Mr Baparee, a litigant in person at the time, said he posted his claim on Sunday 26 March 2023 at the Chelsea Royal Hospital post office and produced a certificate of posting stamped with that date (paras 19–21, 30–31, 36–38). The UT had no record of receipt (paras 22–23).
• After new solicitors were instructed in April 2024, a fresh application was lodged and an extension of time sought (paras 21–23).
• The UT ultimately refused to admit the claim as out of time, doubting that the 2023 claim had ever been posted, and made adverse comments about the Sunday posting (paras 27, 43[6]–[10]). It nevertheless found the merits arguable on the Covid-19 “exceptional assurance” policy (paras 11–12, 43[11]–[13]).

Analysis

Precedents and Authorities Cited

• Scott v Attorney General of the Bahamas [2017] UKPC 15 (paras 45, 64): The Privy Council defined judicial notice as acceptance of facts that are notorious or capable of immediate and indisputable verification. The party invoking judicial notice bears the burden of showing (a) notoriety or (b) immediate verification from indisputable sources. This standard was central to rejecting the UT’s “experience”-based approach.
• E v Secretary of State for the Home Department [2004] QB 10 (paras 46, 73): Described the ground of appeal based on a mistake of fact giving rise to unfairness. Although the Court did not need to rest its decision on this ground, it signposted E as a relevant framework and linked it to flexibility about fresh evidence in public law.
• Ladd v Marshall [1954] 1 WLR 1489 and Terluk v Berezovsky [2011] EWCA Civ 1534 (paras 72–73): Ladd v Marshall criteria remain highly relevant but not strictly constitutive post-CPR. The Court confirmed the continuing importance of the diligence criterion for fresh evidence and that departures in public law require exceptional circumstances.
• Phipson on Evidence (paras 64–65): Relied upon for the judicial notice framework and the requirement of putting a point to a witness where credibility is impugned (fairness in cross-examination).
• Tribunal Procedure (Upper Tribunal) Rules 2008 (paras 12–17): Rule 28(2) imposes the “received within three months” requirement; rule 28(7) prescribes requests for extension where late; rule 28A(2) governs service by applicants in immigration JR; rule 5(3)(a) allows extensions; rule 29(1) governs acknowledgement of service by respondents.
• CPR Part 52 and the appellate regime (paras 72–73): The Court reaffirmed that CPR 52 governs fresh evidence on appeal, with Ladd v Marshall as guiding criteria applied through the lens of the overriding objective.

Legal Reasoning

1. Centrality of the “Sunday opening” finding to the UT’s decision (paras 57–61): The UT accepted the merits were arguable but refused to admit the claim as late because it was not satisfied that the appellant had attempted a timely filing in March 2023. The UT’s belief that post offices do not open on Sundays was an absolute premise (para 58) and an integral part of its reasoning, affecting the appellant’s credibility and the authenticity or probative value of his certificate of posting (paras 59–61).
2. Judicial notice: limits and burdens (paras 62–65): A tribunal’s “experience” is not evidence. Facts can be judicially noticed only if notorious or capable of immediate indisputable verification. The respondent advanced no authority or reliable source to establish the alleged fact, and the tribunal did not verify it. The proposition that post offices are never open on Sundays could not be assumed; even if “many” are closed, whether this post office was open was an evidential question, not a judicial notice point.
3. Procedural fairness when new points are raised by the bench (para 65): The “Sunday opening” concern surfaced during the appellant’s evidence at the UT’s own prompting. Fairness required that the point be clearly put to the witness and, if maintained, supported through proper evidential procedures. At minimum, the respondent should have sought an adjournment to obtain evidence rather than urging an ill-founded resort to judicial notice (para 74).
4. Fresh evidence on appeal (paras 66–77): Both parties attempted on appeal to fill the evidential gap about Sunday opening via screenshots, letters, and retrospective statements. The Court refused to admit fresh evidence:
   • It could have been obtained with reasonable diligence for the UT hearing (para 75).
   • No exceptional public law circumstances justified departing from the Ladd v Marshall diligence criterion (paras 73, 75).
   • Even taken together, the fresh evidence did not conclusively establish that the post office was closed on 26 March 2023, so it could not render the UT’s error immaterial (para 76).
5. Disposition (para 78): Because the judicial notice error was material to the extension-of-time decision, the appeal was allowed and the matter remitted to a differently constituted UT to redetermine the extension-of-time application and permission.

Impact and Practical Significance

1) Judicial notice in tribunals: a narrow gateway

• Tribunals cannot use personal or anecdotal “experience” to resolve contested factual issues, especially where credibility is at stake. Judicial notice requires either clear notoriety or immediate verification from indisputable sources. Everyday logistical facts (like opening hours) will rarely qualify.
• Where parties or the bench raise a contestable factual point, tribunals must require evidence—not judicial notice. If raised late, adjournment may be necessary to ensure fairness.

2) Procedural fairness when the bench raises new issues

• The decision underscores the obligation to put adverse points squarely to a witness if the tribunal intends to rely on them to make determinative findings (especially affecting credibility). It is not enough for the tribunal to interject with its own understanding; adversarial testing or proper evidential verification is essential.
• Respondents should not “bank” on judicial notice to prove factual premises; the proper course is to adduce evidence or seek an adjournment when a new point arises unexpectedly (para 74).

3) Fresh evidence on appeal in public law

• Although public law can justify flexibility, the Ladd v Marshall diligence requirement remains a strong filter. Parties should assemble the necessary factual record at first instance; appellate “repair” is disfavoured.
• Government respondents are reminded to raise factual contentions requiring proof at the tribunal stage, not for the first time in the Court of Appeal. Attempting to cure deficiencies on appeal will usually fail absent exceptional justification.

4) Immigration judicial review time limits and evidence of filing

• Rule 28(2) requires the UT to “receive” the claim within three months. Where timely posting is relied upon, proof such as certificates of posting can be critical. Tribunals assessing extensions of time must not discount such proof based on generalised assumptions.
• Even if a timely attempt was made, prolonged inactivity may weigh against an extension; but the Court cautions that credibility assessments on whether a timely attempt was made must be rooted in evidence, not judicial notice or personal assumptions (paras 59–61).

Complex Concepts Simplified

• Judicial notice: A court may accept a fact without evidence only when the fact is either so well-known that no reasonable person would dispute it, or it can be instantly verified from truly reliable sources. It is not a mechanism for deciding contested, everyday facts, and it cannot replace proof where credibility is in play.
• Mistake of fact causing unfairness (E v SSHD): A decision can be unlawful if it hinges on a significant factual mistake, not the parties’ fault, which leads to unfairness. Although the Court did not have to decide on this ground, it flagged it as a relevant framework for understanding how factual errors can taint outcomes.
• Fresh evidence on appeal (Ladd v Marshall/Terluk): New evidence may be admitted only rarely. A key question is whether it could have been obtained for the original hearing with reasonable diligence. In public law, flexibility is possible in exceptional cases, but the diligence requirement still carries significant weight.
• “Admitting” an application in the UT: In UT judicial review, a late application will not be admitted unless time is extended under rule 5(3)(a). If the UT refuses to extend time, the case does not proceed to substantive determination.
• “Exceptional assurance” (Covid-19 concession): A temporary Home Office policy instrument that protected individuals unable to leave due to the pandemic. The UT found it arguable that this policy allowed the appellant to switch routes in-country, a merits point to be revisited only if the claim is admitted.

How the Court’s Guidance Should Shape Practice

• For tribunals: Avoid resolving contested facts by reference to judicial “experience.” If the bench identifies a new factual concern, it must be put clearly to the witness; consider adjournments to obtain proper evidence. Give clear reasons, avoiding absolute, unverified propositions.
• For respondents (including the Secretary of State): If disputing a claimant’s factual account (e.g., posting dates, opening hours), assemble and file the evidence at first instance. Do not rely on judicial notice. Raise timeliness objections early, with particulars.
• For claimants/litigants in person: Keep contemporaneous proof of posting or delivery; use traceable methods where possible; follow up promptly if no acknowledgment is received; ensure compliance with rule 28A(2) on service and notification.

Conclusion

Baparee is a significant procedural decision. It reinforces that judicial notice is an exceptional evidentiary shortcut, not a substitute for proof, particularly when a tribunal’s conclusion will turn on credibility and the presence or absence of a timely filing. The Court of Appeal’s insistence on evidential rigor, fairness when new points are sprung by the bench, and restraint in admitting fresh evidence on appeal, will resonate across public law litigation and tribunal practice.

For immigration judicial reviews, the case also serves as a cautionary tale: timeliness depends on receipt, and extensions turn on a fair and evidence-based appraisal of what a claimant did. Where tribunals are tempted to rely on “everyone knows” propositions, Baparee supplies the corrective—ask for evidence, not assumptions.