Ordinary Residence

April 1st, 2021 by James Goudie QC in Social Care

The approach to the question of “ordinary residence” under the Mental Health Act 1983 is different from that under National Assistance Act 1948/Care Act 2014. So held by Linden J in R (Worcestershire County Council) v SoS (2021) EWHC 682 (Admin). LA 1 provided after-care services for a person discharged from hospital after being detained there under Section 3 of the 1983 Act. LA 1 placed the person in a care home in the area of LA 2. Then that person was detained again. When they were discharged again after the second period of detention, was it LA 1 or LA 2 who was responsible for the second period of after-care? Answer: LA 2. Reason: for the purposes of Section 117 (3) of the 1983 Act they were “ordinarily resident” in LA 2’s area “immediately before” the second period of detention.

 

Highway Safety

March 30th, 2021 by James Goudie QC in Environment, Highways and Leisure

When determining whether planning consent should be granted to upgrade an advertising hoarding to a digital display, not only must the residential amenity of the display be considered. Specific conditions should be addressed, in the interests of highway safety, in relation to the use of moving images and both the frequency and the speed of change of advertisements on the display. So held in Calderdale Borough Council v SoS (2021) EWHC 695 (Admin).

 

Proprietary Estoppel

March 30th, 2021 by James Goudie QC in Land, Goods and Services

A claim for possession of land may be defeated by a proprietary estoppel that is satisfied by an irrevocable licence for life, even when a contract for the sale of the land had been oral. The requirements of Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 probably did not affect proprietary estoppel, especially when the relief sought was not to enforce the contract. So held by Snowden J in Howe v Gossop (2021) EWHC 637 (Ch).

 

Duty of Care

March 30th, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

In Anchor Hanover Group v Oxfordshire County Council and Others (2021) EWHC 543 (TCC) O’Farrell J at para 59 stated principles as follows: (1) Local and other public authorities do not owe any duty of care at common law simply by exercising their statutory duties and powers; (2) The absence of a duty of care extends to advice given as part of the exercise of such duties; (3) However, a common law duty to protect from harm may arise, where the principles applicable to a private party would impose that duty; and (4) Such cases include where there is an assumption of responsibility.

 

 

GPOC: Wales

March 24th, 2021 by James Goudie QC in Decision making and Contracts

Note the draft General Power of Competence (Commercial Purpose) (Conditions) (Wales) Regulations 2021, pursuant to Sections 24 and 27/28 Of the Local Government and Elections (Wales) Act 2021, requiring amongst other things authorities to prepare and approve a Business Case before using the General Power to do things for a commercial purpose/trading, together with regulatory Impact Assessment, and Welsh Government Consultation Document, for response by 11 June 2021. The General Power comes into force for principal councils on 1 November 2011 and for eligible community councils on 5 May 2022.

 

Duty of Candour

March 19th, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

In DVP v SSHD (2021) EWHC 606 (Admin) the Divisional Court emphasised the importance of the duty of candour when making applications for judicial review. Dame Victoria Sharp P said at para 9: “The duty of candour in this context means that the claimant must disclose any relevant information or material fact which either supports or undermines his case. Material facts are those facts which it is material for a judge to know when dealing with the urgent application. The duty requires the claimant to make the court aware of the issues that are likely to arise and the possible difficulties in the application or underlying claim.” She added, at para 10, that if there is a breach of the duty an order will be set aside even if it might otherwise have been justified. See also paras 73-80.

 

Rough Sleepers During Covid

March 11th, 2021 by James Goudie QC in Housing

R (Ncube) v Brighton & Hove City Council (2021) EWHC 578 (Admin) concerned the powers available to a unitary local authority, with both housing and social care duties and powers, to provide accommodation for rough sleepers with no recourse to public funds. Section 185 of the Housing Act 1996 renders persons from abroad not eligible for housing assistance. Freedman J’s holdings include that there was power in this case for the authority to provide temporary accommodation pursuant to the emergency power under Section 138 of the Local Government Act 1972 and/or Section 2B of the National Health Service Act 2006, and neither of these routes were a circumvention of Section 185 if the unitary was acting as social services rather than housing authority. However, Section 1 of the Localism Act 2011 could not be relied upon. That would be a circumvention of Section 185.

 

Companies

March 9th, 2021 by James Goudie QC in Capital Finance and Companies

The Duomatic principle, that anything a company’s members could do by formal resolution they could also do informally if they all assented to it, does not apply where the transaction would be ultra vires: Satyam Enterprises Ltd v Burton (2021) EWCA Civ 287.

 

Procurement

March 4th, 2021 by James Goudie QC in Decision making and Contracts

See Bechtel Ltd v High Speed (HS 2) Ltd (2021) EWHC 448 (TCC) on judicial oversight of procurement and challenges to the outcome of procurement challenges: paras 18-28; confidentiality in litigation concerned with procurement challenges: paras 31-39; evidence from claimant witnesses: paras 135-139; manifest error: paras 256/257; transparency, keeping records, equality of treatment, giving of reasons, proportionality: paras 79, 274-277, 281-333; limitation: paras 339/340; abnormally low tender: paras 456-468; modifications: paras 482-492; and abandonment: paras 506-508.

 

Footpaths

February 25th, 2021 by James Goudie QC in Environment, Highways and Leisure

In Open Spaces Society v SoS (2021) EWCA Civ 241 the Court of Appeal held that, in deciding whether it is expedient to confirm a public path diversion order, in exercise of the power conferred by Section 119(6) of the Highways Act 1980, the decision-maker MUST have regard to the matters specified in paras (a) to (c) and any material provision of a rights of way improvement plan, AND MAY have regard to ANY OTHER RELEVANT MATTER, including, when appropriate, the owner or occupier of the land over which the path currently passes, or the WIDER PUBLIC INTEREST.