January 20th, 2021 by James Goudie QC in Decision making and Contracts

See United Trade Action Group v TfL (2021) EWHC 72 ( Admin ), a case concerned with taxis as a form of public transport, at paras 94-99 and 165/166 on the exercise of traffic management powers, at paras 102-107 on relevant considerations and policies, at paras 175-177 on the PSED, at paras 197-207 on ECHR Art1/1, and at paras 219-226 and 249-251 on legitimate expectation.


Statutory Interpretation

January 13th, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

In Privacy International v Investigatory Powers Tribunal (2021) EWHC 27 ( Admin ) Bean LJ stated relevant principles of statutory interpretation as follows :-

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Without Prejudice

January 11th, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

Motorola v Hytera (2021) CA Civ 11 concerned when without prejudice privilege is displaced by the “unambiguous impropriety” exception. Males LJ reviewed the authorities at paras 24-56 inclusive, and states at para 57: “From this review of the cases I would conclude that the courts have consistently emphasised the importance of allowing parties to speak freely in the course of settlement negotiations, have jealously guarded any incursion into or erosion of the without prejudice rule, and have carefully scrutinised evidence which is asserted to justify an exception to the rule.” Although the “unambiguous impropriety” exception has been recognised, the cases in which it has been applied have been “truly exceptional”.


State Aid

December 29th, 2020 by James Goudie QC in Capital Finance and Companies

The Brexit deal agreement is accompanied by Declarations. These include a non-binding Joint Declaration of the UK and the EU on Subsidy Control Policies. These are described as “ guidance”. They may be “ taken into consideration” in the respective systems of subsidy controls.

The guidance is concerned with subsidies for (1) the development of disadvantaged and deprived areas or regions, (2) transport, and (3) research and development.

When determining the amount of subsidy for such areas, there may be taken into account (1) the socio-economic situation of the area, (2) the size of the beneficiary, and (3) the size of the investment project. However, (1) the beneficiary should provide its own “ substantial contribution” to the investment costs, and (2) the subsidy should not have as its “ main purpose or effect” to incentivise the beneficiary to transfer the same or a similar activity across borders.

Transport covers (1) airports, (2) roads, and (3) ports. Subsidies to road infrastructure projects may be granted if they are not designed “ selectively”, but provide benefits to society at large. It must be “ ensured” that open access to infrastructure is available to “ all” users on a “ on-discriminatory “ basis.


State Aid

December 29th, 2020 by James Goudie QC in Capital Finance and Companies

The UK will continue to have after 1 January 2021 a subsidy control system that will be legally enforceable. The subsidy provisions in the 1246 pages Brexit deal are however weaker than the EU’s initial proposals. These had been for the UK to align with EU state aid law. They are nonetheless stronger than the provisions of the EU’s free trade agreements with Canada and Japan. Indeed, many of the definitions and principles in the Brexit deal are similar to the EU State Aid system. There are features that the UK’s subsidy control system must include.

The Brexit deal sets out a definition of a subsidy, basically selective advantage, a list of common principles, and exemptions from prohibitions. The deal also addresses enforcement. There will have to be a Court or Tribunal for subsidy cases, and specified common remedies for breach, including recovery of a payment.


The BREXIT Deal and the Environment

December 29th, 2020 by James Goudie QC in Environment, Highways and Leisure

Commitments on the environment in the 1246 page Brexit deal go beyond other EU trade agreements. The deal sets out some specific mutual commitments. These include maintaining the planned reduction of greenhouse gases and a system of carbon pricing. The commitment extends to not lowering the overall level of environmental protection in a way that impacts trade or investment. The deal also outlines common principles, such as the polluter pays, and provides for enforcement measures.


Public Procurement

December 29th, 2020 by James Goudie QC in Decision making and Contracts

The 1246 pages Brexit deal has some procurement rules. The UK’s initial offer was to reaffirm its existing commitments in the WTO’s Government Procurement Agreement. The eventual trade deal builds on the GPA rules and extends the coverage of sectors beyond the GPA, including education. The deal sets out basic rules on competitive tendering that are simpler and less prescriptive than EU Directives, and includes a requirement for there to be an impartial authority to assess challenges to contract awards.


Unjust Enrichment

December 24th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

Surrey County Council v NHS Lincolnshire CGC (2020) EWHC 3550 (QB) concerns a restitution claim by a local authority against an NHS body in the context of healthcare and community care services. Issues include whether the claim is a public law claim that should be brought by judicial review or can be brought as a private law claim( paras 72-84), limitation ( paras 85-91), a novel category of unjust enrichment ( paras 92-121), and change of position defence ( paras 122-129).



December 24th, 2020 by James Goudie QC in Human Rights and Public Sector Equality Duty

The PSED applies to all aspects of a local authority’s housing function. This includes decisions to commence, pursue and enforce possession proceedings. However, it is held in Taylor v Slough BC (2020) EWHC 3520 (Ch) at paras 24-26, 29-30 and 33-43, that a breach of the PSED at an early stage of individual possession proceedings is capable of being cured by subsequent full compliance.


Land Subject to Trust

December 23rd, 2020 by James Goudie QC in Land, Goods and Services

Local authority open space land is held for the purposes of public recreation, public access and public enjoyment pursuant to the Public Health Act 1875 and the Open Spaces Act 1906. The land is held subject to a statutory trust for those purposes. It is not however a trust in the usual private law sense. The land and the trust are inseparable.

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