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.

 

Companies

February 25th, 2021 by James Goudie QC in Capital Finance and Companies

In Byers v Chen (2021) UKPC 4 the Privy Council affirmed, at paras 64/65, the Duomatic principle, that, where it can be shown that all shareholders who have a right to attend and vote at a general meeting of the company assent to some matter which a general meeting of the company could carry into effect, that assent is as binding as a resolution in general meeting would be. The Privy Council also affirmed, at paras 68/69, that a director who has given the company proper notice of his or her resignation is not entitled to withdraw that notice, save with the consent of the company or possibly the ultimate beneficial owner.

 

Misrepresentation

February 22nd, 2021 by James Goudie QC in Decision making and Contracts

In Leeds City Council v Barclays Bank (2021) EWHC 363 (Comm) claims for rescission of loans were struck out. The claims arose out of the LIBOR rigging affair of 2012. They were struck out because the claimant local authorities could not show that they relied on the representations which they allege were made. Cockerill J ruled, at paras 65 and 102, that proof of “understanding” of the representation in the sense of which complaint is later made, is a constituent part of a misrepresentation claim.

 

Gig Economy

February 22nd, 2021 by James Goudie QC in Best Value

In Uber v Aslam (2021) UKSC 5 the Supreme Court has held that Uber drivers are not self-employed contractors, notwithstanding contractual documentation that they are. Rather, as a matter of purposive statutory interpretation, and having regard to what is expected and happens in practice, they are “workers”, for the purposes of employment protection, working time and the national minimum wage.

 

Transparency

February 22nd, 2021 by James Goudie QC in Decision making and Contracts

R (Good Law Project) v SoS for Health and Social Care (2021) EWHC 346 (Admin) concerned the award of contracts relating to Covid-19. The SoS was in breach of the PCR 2015 Regulation 50 obligation to publish a Contract Award Notice. Chamberlain J said at para 140 that this obligation “serves a vital public function”. It is no less important during a pandemic. It is particularly important where contracts have been awarded without an open advertised tender process.

 

Standing

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

In R (Good Law Project and 3 MPs) v SoS for Health and Social,Care (2021) EWHC 346 (Admin) Chamberlain J in procurement proceedings granted standing to the first claimant and refused it to the other three. At paragraphs 77-108 he stated general principles as regards standing for judicial review as follows :-

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Workers

February 19th, 2021 by James Goudie QC in Decision making and Contracts

The Supreme Court has confirmed, in Uber v Aslam (2021) UKSC 5, at para 133, that time spent “on call “counts as “working time “if the worker is required to be at or near their place of work. The leading case remains Case C-518/15, Ville de Nivelles: retained firefighters’ standby time at home is working time: (2018) IRLR 457. On the national minimum wage Judgment is still awaited from the Supreme Court in Royal Mencap Society v Tomlinson- Blake.

 

 

Ordinary Residence

February 15th, 2021 by James Goudie QC in Social Care

R ( Lancashire County Council ) v SoS for Health and Social Care  (2021) EWHC 268 (Admin ) concerned “ ordinary residence” under Section 21 of the National Assistance Act 1948. In particular it concerned the deeming provision in Section 24(5) of the 1948 Act, and the situation when arrangements for accommodation should have been made, but were not. The Judge held that the “ should have “ requirement includes (1) the undertaking of any assessment that should have been undertaken under Section 47 of the National Health Service and Community Care Act 1990 at the relevant date, having regard to the low threshold for such an assessment, and (2) disregarding resources available to meet the need that fall to be disregarded under Section 21(2A) of the 1948 Act, such as PI damages, administered in this case by a CoP appointed Deputy.

 

Judicial Review and Cuts

February 15th, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

On systemic claims, whether a decision (to cut funding on EHCPs) gives rise to an unacceptable risk of unlawful outcomes, and on whether a strategic statutory duty (under Section 27 of the Children and Families Act 2014) to keep provision “under review” is triggered, see R (M and IR) v Waltham Forest LBC (2021) EWHC 281 (Admin).

 

TVG

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

TW Logistics Ltd v Essex County Council (2021) UKSC 4 raised important issues about the law relating to Town and Village Greens under the Commons Act 2006, a much wider concept (para1) than the traditional village green, with registration having (para 2) important legal consequences. The central question on the unsuccessful appeal was whether registration in this case, under Section 15 of the Act, would have the consequence that the continuation of the landowner’s pre-existing commercial activities would be criminalised.

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