Restraint of Trade

July 23rd, 2021 by James Goudie QC in Decision making and Contracts

In Harcus Sinclair LLP v Your Lawyers Ltd (2021) UKSC 32 the Supreme Court holds that (1) In determining the legitimate interests of the promisee in a restraint of trade case account can be taken not only of the contract terms but also what the parties objectively intended or contemplated consequent on the contract; and (2) the Court’s supervisory jurisdiction with respect to a solicitor’s undertaking does not apply in the case of a LLP.


Burden of Proof and Adverse Inferences

July 23rd, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

In Royal Mail Group v Efobi (2021) UKSC 33 the Supreme Court holds that (1) the change in the wording of equality legislation by Section 136 of the Equality Act 2010 has NOT altered the burden of proof in discrimination cases where discrimination is alleged, and (2) whether any positive significance should be attached to the fact that a person, including an actual decision-maker,  has not given evidence depends entirely on the context and particular circumstances and common sense, and not legal rules.


Judicial Review and Courts Bill

July 22nd, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

The above Bill has been published on 21 July 2021. It will not be debated in Parliament until the Autumn.

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July 21st, 2021 by James Goudie QC in Standards

In R (Robinson) v Buckinghamshire Council (2021) EWHC 2014 (Admin) the Court reiterates that where a complaint against a local authority member of misconduct is by reference to what the member said and/or how he or she said it, and Article 10 of the ECHR is applicable, freedom of expression is important, and while that is so for everybody, it is especially so for elected representatives.


Dedication of Track as Bridleway

July 21st, 2021 by James Goudie QC in Environment, Highways and Leisure

In Garland v SoS for Environment etc (2021) EWCA Civ 1098 the Court of Appeal says that,  in deciding whether the common law dedication of a right of way over land would constitute a public nuisance, as a matter of fact, there is no need of evidence of an actual specific accident or incident. The character of the route itself may justify the inference that the route is potentially dangerous to a section of the public.

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Freedom of Expression

July 21st, 2021 by James Goudie QC in Human Rights and Public Sector Equality Duty

In McNally v Saunders (2021) EWHC 2012 (QB) summary judgment is granted to the defendant, an online blogger, in respect of a claim against him under the Protection from Harassment Act 1997. The claim was brought against him by a local authority’s Director of Public Health with the support of the authority. It concerns a series of personally critical blog articles and tweets. The Judge balances on the one hand  the public interest in the Director being able to fulfil her role without being subjected to conduct which undermines her ability to do so, and on the other hand freedom of expression.



Liquidated Damages for Delayed Contractual Performance

July 21st, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

In Triple Point Technology v PTT (2021) UKSC 29 the Supreme Court considers general issues about a provision for liquidated damages under a contract and the function of liquidated damages. Parties agree a liquidated damages clause so as to provide a remedy that is predictable and certain for a particular event. There then does not have to be a potentially difficult and time consuming quantification of loss.

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Recovery of Possession

July 12th, 2021 by James Goudie QC in Land, Goods and Services

Lambeth LBC v Grant (2021) EWHC 1962 (QB) concerns a claim by the Council as freehold owner of Clapham Common. Part of the Common has been occupied by individuals known and unknown. They have set up a camp. The camp has generated complaints from local residents. By this action the Council sought to recover possession of its land. It was held that the Council was entitle to an order for possession.
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July 12th, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

The appeal in School Facility Management Ltd v GB of Christ the King College (2021) EWCA Civ 1053 addressed the question whether, in a claim for restitution of benefits conferred under a contract which was void as ultra vires one of the parties, the provider of the benefits must give credit for all benefits it received, notwithstanding that it has a change of position defence to any restitutionary claim for those benefits it received. The answer is : No.



July 9th, 2021 by James Goudie QC in Human Rights and Public Sector Equality Duty

In A&B v CICB (2021) UKSC 27 the Supreme Court reaffirmed that ECHR Art 14 does not cover differential treatment on any ground, but only on a ground of status: para 40. This has a broad meaning and must be generously interpreted : paras 42 and 57. However, the basis of discrimination of which complaint is made must have an existence independent of the measure under attack: para 59. Relevant status cannot be defined solely by difference in treatment: para 66. The Supreme Court also reaffirms that discrimination may arise where the State fails to treat differently persons whose situations are significantly different: para 69.