Judicial Review: Refusal of Relief

September 10th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

In Gathercole v Suffolk County Council (2020) EWCA Civ 1179 relief was refused where planning permission, for a new village primary school near an airfield, had been granted without compliance with the public sector equality duty, in respect of the effect of aircraft noise on children with protected characteristics, but it was highly likely that the planning decision would have been the same if there had been compliance. The environmental statement in respect of alternative sites, was adequate, but even if it had not been that would not have had any substantive effect on the planning decision.

 

Litigation

September 8th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

In TBD v Simons (2020) EWCA Civ 1182 the appeals raised important issues as to (1) the interpretation of search orders, (2) the granting of permission to bring committal proceedings, and (3) litigation privilege. On search orders, see paras 127-175, imaging orders, paras 176-193, applications for permission to bring committal proceedings, paras 230-234, and litigation privilege, including waiver and the iniquity exception, from para 254.
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Public Sector Exit Payments

September 7th, 2020 by James Goudie QC in Local Authority Powers

Both Houses of Parliament are back in session, but there are still no draft Regulations before them for a £95K cap on exit payments. Indeed it is now apparent that this will not happen before November at the earliest. On 7 September 2020, MHCLG has issued a Consultation Paper, for response by 9 November 2020, “ Reforming Local Government Exit Pay”. This is on exit pay for local government workers in England, and specifically for those who are eligible to be members of the LGPS, with entitlement to early access to pension and to redundancy compensation pay. The consultation includes proposals for limiting pension strain cost. There are 12 consultation questions.

 

Standing for Judicial Review

September 4th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

In R ( McCourt) v Parole Board (2020) EWHC 2320 a Divisional Court approve, at para 31, as an accurate high-level summary of the law a passage in Auburn, Moffett & Sharland on Judicial Review, including that the Courts have adopted an increasIngly liberal approach to both individuals and groups bringing judicial review claims. The applicant does not have to claim to be more affected by the decision than anyone else : para 32. Whether an applicant has a sufficient interest to provide standing to bring judicial review proceedings depends on what the rule of law requires in the particular context of the decision under challenge: paras 41-43. A suitably expert organisation may be better placed to present arguments about the impact of policy on an affected class as a whole, rather than an individual in particular: para 43.

 

Out of Date Policies

September 4th, 2020 by James Goudie QC in Planning and Environmental

A Policy is not out of date simply because it is in a time expired development plan. Whether a Policy is out of date, and, if so, with what consequences, is a matter of planning judgment. So held in Peel Investments v SoS and Salford City Council (2020) EWCA Civ 1175.

 

Similar Fact Evidence

August 19th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

In R v P (2020) ECCA 1088 the Court of Appeal considered similar fact evidence in family cases and held that : –

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PSED

August 11th, 2020 by James Goudie QC in Human Rights and Public Sector Equality Duty

In R ( Bridges) v South Wales Police (2020) EWCA Civ 1058 the Court of Appeal said at para 176 that, albeit the PSED is a process duty, not an outcome duty, that does not diminish its importance. The Court observed that public law is often concerned with the process by which a decision is taken, for two reasons : (1) good processes are more likely to lead to better informed, and therefore better, decisions; (2) whatever the outcome, good processes help to make public authorities accountable to the public.
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Consultation

August 11th, 2020 by James Goudie QC in Decision making and Contracts

In R ( Article 39 ) v SoS for Education (2020) EWHC 2184 ( Admin) Lieven J held that the Adoption and Children ( Coronavirus ) Regulations 2020, relaxing regulatory safeguards for looked after children, were lawful, notwithstanding that the Children’s Commissioner had not been consulted. This was for two interrelated reasons : (1) extreme urgency in a crisis; (2) the interests of children being taken into consideration through consultation with providers of care to the children : paras 81/82.

 

Legitimate Expectation

August 10th, 2020 by James Goudie QC in Decision making and Contracts

A promise or representation sufficient to give rise to a substantive legitimate expectation will generally be a “ specific undertaking directed at a particular individual or group “, rather than to a large or diverse group. So held by a Divisional Court in R ( Asbestos Victims) v Lord Chancellor (2020) EWHC 2108 ( Admin) at paras 55-61.

 

Citizenship

August 6th, 2020 by James Goudie QC in Social Care

Does a local authority have power to take steps to change the nationality of a child in care, to British citizenship, against the wishes of the child’s parents? No, says the Court of Appeal, in Re Y, (2020) EWCA Civ 1038. An application must be made to the High Court.