Suspension of Contract

January 23rd, 2020 by James Goudie QC in Decision making and Contracts

In Alstom v Network Rail (2019) EWHC 3585 (TCC) O’Farrell J lifted (paragraph 76) an automatic suspension which arose upon a procurement challenge, where there was a serious issue to be tried (paragraph 30). Damages would be an adequate remedy for the Claimant (paragraphs 31-45 inclusive), but not for the Defendant (paragraphs 46-49 inclusive).  Moreover, the balance of convenience test (paragraph 51) was in favour of lifting the suspension, having regard to the public interest (paragraphs 54-71 inclusive).  Delay to the Project caused by continuing the suspension would (1) delay the anticipated benefits of the planned works, (2) result in abortive costs, and (3) jeopardise the business case and funding for the Project (paragraph 59). There was an urgent need to replace degraded assets (paragraph 67).  Alstom’s point about the public interest in Network Rail complying with its legal obligations in respect of public procurement was a neutral one (paragraph 70).  It had to be balanced against the public interest in Network Rail’s entitlement to proceed with the successful tenderer following a lawful and fair procurement exercise. At the suspension stage the Court was not in a position to judge which case will prevail. There was a strong public interest in proceeding with the works as soon as possible (paragraph 71). Nor would a partial lifting of the automatic suspension be appropriate (paragraph 75). The strong public interest in lifting the automatic suspension extended to the full Project.



Gypsy and Traveller Community

January 22nd, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

In Bromley v Persons Unknown (2020) EWCA Civ 12 the Court of Appeal set out relevant law in relation to (1) Quia Timet Injunctions Against Persons Unknown (paragraphs 29-35 inclusive), (2) Quia Timet Injunctions to Prevent Likely Trespass (paragraphs 36-39 inclusive), (3) ECHR Article 8 and the Gypsy and Traveller Community (paragraphs 40-48 inclusive), and (4)(i) Relevant Statutes, including the Equality Act 2010 and the PSED (paragraphs 49-53 inclusive), (ii) Guidance in relation to unauthorised emcampments (paragraphs 54-56 inclusive), and (iii) the United Nations Convention on the Rights of the Child (paragraphs 57-58). The Court of Appeal next analysed the Appeal (paragraphs 59-98 inclusive)., especially in relation to proportionality, and then gave “Wider Guidance” as to how local authorities should act (paragraphs 99-109 inclusive),  in particular (paragraph 104) the principal considerations which should be at the forefront of a local authority’s mind when considering whether a Quia Timet Injunction should be sought against Persons Unknown, and where the proposed Injunction is directed towards the Gypsy and Traveller Community.


State Aid

January 20th, 2020 by James Goudie QC in Capital Finance and Companies

In Case T-257/18, Iberpotash S.A. v European Commission, CJEU General Court Judgment on 16 January 2020, the first issue was whether there was a transfer of State resources.  The Court said:-

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ECHR Articles 6, 14 and 1/1/PSED

January 20th, 2020 by James Goudie QC in Human Rights and Public Sector Equality Duty

In R (BMA) v SoS for Health and Social Care (2020) EWHC 64 (Admin), Andrews J held, para 151, that the BMA was entitled to declaratory relief and a quashing order in respect of 2019 Pension Regulations which purported to enable the SoS to make a suspension decision in respect of pension benefits after criminal charge, but before any conviction. The BMA established to the Judge’s satisfaction that (1) the power to suspend pension benefits in the form in which it was introduced by the 2019 Regulations was a breach of ECHR Article 14, in conjunction with Article 1 of Protocol 1; (2) that this was compounded by an absence of appropriate procedural safeguards, as required both by ECHR Article 6 and by the common law principles of natural justice; (3) that although the Article 6 deficiencies might have been capable of cure had they stood alone, the Court was unable to use the wide powers, given to the Court under Section 3(1) of the Human Rights Act 1998, to interpret the legislation in a manner which would render it compatible with the ECHR; and (4) the SoS also failed to comply with the PSED, under Section 149 of the Equality Act 2010, when making the 2019 Regulations, which was an entirely independent ground upon which the decision to introduce the power was unlawful.

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Capacity to Bring Claim

January 16th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

In Aireborough Neighbourhood Development Forum v Leeds City Council (2020) EWHC 45 (Admin) there was a preliminary issue whether the Forum, an unincorporated association, had the legal capacity to make an application to make a statutory challenge to the LPA’s adoption of a Development Plan Document.  Lieven J held that it did have such capacity.  She addressed conflicting decisions on whether an unincorporated association can bring a judicial review claim. Lieven J held that an unincorporated association does have capacity to bring both a judicial review and a statutory challenge. She said that there is a critical distinction in this respect between private and public law litigation. In public law, the legal capacity of the claimant is not a critical component of the Court having jurisdiction.


Public Open Space

January 14th, 2020 by James Goudie QC in Land, Goods and Services

In R (Day) v Shropshire Council and Shrewsbury Town Council (2019) EWHC 3539 (Admin) Lang J held that land (1) was open space, distinguishing  Whitstable Society v Canterbury City Council (2017) EWHC 254 (Admin), (2) was subject to a statutory trust under the Public Health Act 1875 and the Open Spaces Act 1906, following R (Friends of Finsbury Park) v Haringey LBC (2018)  P.T.S.R. 644, and (3) had not been validly appropriated to any other use.  The requirement therefore applied under Section 123(2A) of the Local Government Act 1972 (“LGA 1972”) to advertise a proposed disposal of any part of the land and to consider objections. This the Town Council had failed to do.  However, the public rights could not be enforced against a buyer. The legal effect of a disposal is governed by LGA 1972, Sections 128 and 131, not by the private law of trusts. Lang J said, at paragraph 116:-

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Decision Making and Contracts

January 6th, 2020 by James Goudie QC in Decision making and Contracts

In R (AA) v Rotherham MBC (2019) EWHC 3529 (Admin) Jefford J, a case on closure of a Day Centre for adults with learning difficulties, following two consultations, and the Council’s responsibilities for the claimant’s care needs under the Care Act 2014, Jefford J stated with respect to the law on consultation and options:-

“83.     … the following propositions can be stated:

(i)        It is not necessary in all cases where a particular proposal is the subject matter of a consultation to set out alternatives including those that may have been rejected or explain why they have been rejected.

(ii)      Fairness requires that to be done where it is necessary to allow informed or intelligent responses. That is sometimes the case as Lord Wilson said at paragraph 27 of this speech.

(iii)     Whether that is necessary, and correspondingly whether the consultation is a fair one, is a broad question in answering which the matters that fall to be considered include the purpose of the consultation, the nature of the proposal being consulted on, and what consultees can be reasonably taken to know about the proposal and its context. Read more »


Planning and Environment

January 6th, 2020 by James Goudie QC in Planning and Environmental

In R (Asda Stores) v Leeds City Council (2019) EWHC 3578 (Admin), Lieven J held, considering Zurich Assurance v North Lincolnshire Council (2012) EWHC 3708, that paragraph 90 of the NPPF, which provides that planning permission for out-of-town retail developments “should” be refused where the proposed development was likely to have significant adverse impact on town centre vitality and viability, did not create a presumption in favour of refusing such developments. It was still for the decision-maker to weigh the competing material considerations. Paragraph 90 did not create a presumption in favour of refusal. The NPPF had to be read as a whole, and in a way that made sense of the document as a whole. It was notable that, in relation to sustainable development, the NPPF used the specific term “presumption”, set out a structure by which that presumption was to be applied, indicated the particular circumstances it could be outweighed, and explained how it worked in particular types of case. This created a “tilted balance”, which gave effect to the presumption. By contrast, the word “presumption” was not used in paragraph 90, there was no suggestion of a tilted balance, and there was no attempt to tell decision-makers that they should put more weight on one factor rather than another. Although there were paragraphs in the NPPF which indicated, as a matter of policy, that particular weight should be given to particular matters, paragraph 90 was not one of them. Thus, the retailer’s argument could not be correct on a textual analysis of the NPPF as a whole. Moreover, the approach for which it contended would create a legal minefield for decision-makers, with potentially different presumptions pulling in different directions. That was precisely the type of excessive legalism infecting the planning system which the decision in Mansell v Tonbridge and Malling BC [2017] EWCA Civ 1314 warned Courts to be vigilant against.


Probity in Planning

December 23rd, 2019 by James Goudie QC in Standards

The LGA has published an updated Guide on Probity in Planning for Councillors and Officers making planning decisions.  It addresses the planning system and the role of decision makers; Councillor and Officer conduct; registration and disclosure of interests; predisposition, predetermination, or bias; development proposals; lobbying of and by councillors; discussions before a decision is taken; Officer Reports to Committee; public speaking at Planning Committees; decisions which differ from a Recommendation; Committee Site Visits; reviewing past Planning Decisions and the outcomes; and complaints and record keeping.


Permitted Development Orders

December 23rd, 2019 by James Goudie QC in Planning and Environmental

New World Payphones Ltd v Westminster City Council (2019) EWCA Civ 2250 raised important questions concerning the proper approach to the scope of development covered by a permitted development order.

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