Procedural Fairness/Tameside Duty

April 18th, 2019 by James Goudie QC in Decision making and Contracts

When a decision-maker is minded to make a decision adverse to someone on the basis of their dishonesty or other reprehensible conduct he is required as a matter of procedural fairness to indicate that suspicion clearly and give the applicant an opportunity to respond. This principle has been reaffirmed in Balajigari v SSHD (2019) EWCA Civ 673, from paragraph 46, where the Court of Appeal said:-

“46.    … the question of whether there has been procedural fairness or not is an objective question for the court to decide for itself. The question is not whether the decision-maker has acted reasonably, still less whether there was some fault on the part of the public authority concerned.”

“59.    … although sometimes the duty to act fairly may not require a fair process to be followed before a decision is reached … fairness will usually require that to be done where that is feasible for practical and other reasons. … Read more »

 

Human rights

April 17th, 2019 by James Goudie QC in Human Rights and Public Sector Equality Duty

In R (SC) v SoS for Work and Pensions (2019) EWCA Civ 615 Leggatt LJ said as regards the European Convention on Human Rights (“the Convention”):-

“29.    … the Convention is not aimed at securing social and economic rights. The rights defined in the Convention are predominantly civil and political in nature. This reflects the original purpose of the Convention, conceived and developed as it was in the aftermath of the Second World War as a bulwark for protecting the peoples of Europe against tyranny and oppression. As stated in its Preamble, the Convention is a collective enterprise of European countries which are “like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law”, and is designed to maintain “those fundamental freedoms which are the foundation of justice and peace in the world.” Within the legal framework established by the Council of Europe, social and economic rights are protected by a separate treaty, the European Social Charter, adopted by the Council in 1961. Read more »

 

Local authority budgets

April 16th, 2019 by James Goudie QC in Decision making and Contracts

Following the Divisional Court decision in Hollow v Surrey County Council (2019) EWHC 618 (Admin) on local authority budgets and decisions to reduce expenditure, Supperstone J has decided R (AD) v Hackney LBC (2019) EWHC 943 (Admin), in which, again, the challenge was dismissed, and all the various grounds of challenge rejected. As regards alleged “systemic unlawfulness”, it was not the case that Hackney’s approach inherently would produce failures to comply with the relevant absolute, statutory duty (Section 42 of the Children and Families Act 2014). The impact of the reduction upon SEN children and Education and Health Care Plans could be mitigated in individual cases. Nor was a banded system an intrinsically unlawful way to discharge that duty. Further, there was no breach of Section 27 of the 2014 Act, of the PSED, of Section 175 of the Education Act 2002, or of Section 11 of the Children Act 2004. Moreover, no public law consultation was required under Section 27, or the PSED or at common law. There was no legitimate expectation of consultation. It was not required in order to avoid “conspicuous unfairness”. There was compliance with the Tameside duty to equip oneself with adequate information.

 

 

 

Consultation

April 16th, 2019 by James Goudie QC in Decision making and Contracts

Keep the Horton General v Oxfordshire CCG and Cherwell District Council (2019) EWCA Civ 646 concerns one aspect of the first part of a two-phase consultation exercise upon five proposals. McCombe LJ said:-

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Restricting exit payments

April 11th, 2019 by James Goudie QC in Local Authority Powers

On 10 April 2019 HM Treasury has issued a Consultation, for response by 3 July 2019, on draft “Restriction of Public Sector Exit Payments Regulations”, pursuant to the Small Business Enterprise and Employment Act 2015, as amended by the Enterprise Act 2016.

 

Companies: General meetings and torts

April 9th, 2019 by James Goudie QC in Capital Finance and Companies

In Schofield v Jones (2019) EWHC 803 (Ch) the Court exercised its power under Section 306 of the Companies Act 2006 to direct the holding of a Company General Meeting with a quorum of only one. The purpose of the Meeting was to remove one of two members as one of four Directors. That Director was alleged to be in breach of fiduciary duty and had lost the confidence of the other Directors.  That Director can and had thwarted the holding of a General Meeting by not

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Procedural Propriety

April 9th, 2019 by James Goudie QC in Decision making and Contracts

On acting as a judge in one’s own cause, legitimate expectation, and ECHR Article 8, see the Divisional Court Judgment in R (Sargeant) v First Minister of Wales (2019) EWHC 739 (Admin). A Press Statement issued by the First Minister stating that there would be an Independent Inquiry into actions of his was held to give rise to an enforceable legitimate expectation that he would himself have no involvement in the preparatory work for the Inquiry.   That expectation was breached by him by setting the remit for the drafting of the Operational Protocol governing the Inquiry and by his control over the final form of that Protocol.

 

Options

April 9th, 2019 by James Goudie QC in Land, Goods and Services

In Francis v Vista Del Mar Developments Ltd (2019) UKPC 14 Lady Arden stated the issues for determination on the appeal to the Privy Council from the Cayman Islands Court of Appeal as follows:-

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Injunctions against persons unknown

April 4th, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

Boyd v Ineos (2019) EWCA Civ 515 was an appeal from Morgan J who had granted injunctions against persons unknown who were thought to be likely to become protesters at sites selected for the purpose of “fracking”.

The main issue was whether the Judge had been correct to grant injunctions against “persons unknown”. RSC Order 113 of the RSC enabled this. There are also statutory provisions enabling local authorities to take enforcement proceedings against persons such as squatters or travellers contained in Section 187B of the Town and Country Planning Act 1990. Since the advent of the CPR, there has been no requirement to name a defendant in a claim form. Orders have been made against Persons Unknown in appropriate cases. Read more »

 

Election Timetable

April 4th, 2019 by James Goudie QC in Elections and Bylaws

MHCLG has updated its “Election timetable in England”, setting out how often different types of local authority in England hold elections for their councillors, subject to boundary changes, and its Guidance on “Local government structure and elections”, providing information on the different types of council in England and their electoral arrangements.