Ambit of Code of Conduct

May 23rd, 2018 by James Goudie QC in Standards

The main issue in R (Harvey) v Ledbury Town Council (2018) EWHC 1151 (Admin) was an issue as to jurisdiction, namely a dispute between the parties as to whether it was open to the Council to proceed against a member outside its Code of Conduct under the Localism Act 2011 (“the 2011 Act”).  Cockerill J held that the Council by doing so acted ultra vires. It was contrary to the intention of Parliament as expressed in the 2011 Act to run a process in tandem with or as an alternative to the Code of Conduct process envisaged by the 2011 Act: Judgment, paragraph 103.
Cockerill J said:- Read more »

 

Disability Discrimination

May 17th, 2018 by James Goudie QC in Decision making and Contracts

City of York Council v Grosset (2018) EWCA Civ 1105 concerns a claim of discrimination arising from disability under Section 15 of the Equality Act 2010 (“EqA”) in relation to the dismissal of a teacher on grounds of gross misconduct.  The claimant was a teacher employed by the respondent. He suffers from a disability. He was employed by the respondent with full knowledge of this. At the outset various reasonable adjustments were agreed to accommodate his disability. Unfortunately, no proper record was kept of the position and it was lost sight of when a new head teacher took over at the school. The claimant’s case is that he was subjected to an increased workload which he found he could not cope with. He became very stressed under this increased pressure of work. His health suffered badly.  That in turn increased the level of stress. Read more »

 

Administrative Law Principles

May 17th, 2018 by James Goudie QC in Judicial Control, Liability and Litigation

In R (Gallager Group Ltd) v The Competition and Markets Authority (2018) UKSC 25 the Supreme Court has ruled that:-

(1) The domestic law of the UK does not recognize equal treatment as a distinct principle of administrative law: paragraph 24;

(2) It is not an absolute rule: ibid;

(3) In domestic administrative law issues of consistency may arise, but generally as aspects of rationality: paragraph 26;

(4) A legitimate expectation of being treated equally tells one nothing about the legal consequences of such an expectation, in terms of rights and remedies in public law: paragraph 30;

(5) Simple unfairness as such is not a ground for judicial review: paragraph 32;

(6) Substantive unfairness is not a distinct legal criterion: paragraph 41;

(7) The addition of terms such as “conspicuous” or “abuse of power” adds nothing to the ordinary principles of judicial review, such as irrationality and legitimate expectation: ibid.

 

Amendment of Contract

May 17th, 2018 by James Goudie QC in Decision making and Contracts

In Rock Advertising Ltd v MWB Business Exchange Centres Ltd (2018) UKSC 24 the Supreme Court gave effect to a contractual term precluding amendment of an agreement other than in writing, a “No Oral Modification” or “NOM” clause.  Lord Sumption said (para 10) that a law should and does give effect to a contractual provision requiring specified formalities to be observed for a variation.  Party autonomy operates up to the point when the contract is made, but thereafter only to the extent that the contract allows (para 11).  The law of contract does not normally obstruct the legitimate intentions of businessmen, except for overriding reasons of public policy: yet there is no mischief in NOM clauses, nor do they frustrate or contravene any policy of the law (para 12).

 

Village Green

May 16th, 2018 by James Goudie QC in Environment, Highways and Leisure

In Cotham School v Bristol City Council (2018) EWHC 1022 (Admin) the Council   is the owner of the freehold interest in Stoke Lodge Playing Fields. It is also the Commons Registration Authority empowered to register land as a town or village green pursuant to Section 15 Commons Act 2006.  In 2011 application was made to register the land as a town or village green. The applicant was acting on behalf of an unincorporated association known as “Save Stoke Lodge Parkland”. Objections to the application were received. In the face of conflicting views about whether the land should be registered the registration authority decided that it would appoint an Inspector to make a recommendation about whether the land should be registered. In May 2013 the Inspector issued a Report in which he recommended that the land should be registered as a green. However, that recommendation was not implemented. In the years immediately following the publication of the Report there were a number of cases proceeding through the Courts which were relevant to the issues raised in this case. Ultimately a decision was taken that before a decision was made as to whether the land should be registered the Inspector should conduct a non-statutory Public Inquiry at which oral evidence would be given. In June and July 2016 the Inspector conducted such an Inquiry. In October 2016 the Inspector produced a comprehensive written Report. In it, he recommended that the land should not be registered as a green. He expressed the view that one aspect of the statutory test for registration had not been satisfied.  The Inspector’s Report was considered at the Public Rights of Way and Greens Committee of the Council in December 2016.  In the event the Committee resolved (on the Chair’s casting vote) to reject the Inspector’s recommendation and to grant the application for registration. Read more »

 

Waste Operation

May 3rd, 2018 by James Goudie QC in Environment, Highways and Leisure

Stone v Environment Agency (2018) EWHC 994 (Admin) concerned an offence under the Environmental Permitting Regulations of knowingly permitting the operation of a regulated facility without being authorised by an environmental permit. The regulated facility was a “waste operation” for the storage of waste. There were two questions: whether there was a continuing waste operation; and whether the accused had to have taken a positive act during the relevant period, or simply to have known that a waste operation was taking place.  Nicol J held that there was a continuing waste operation; and that “knowingly permitting” did not require proof of a positive act. Read more »

 

ECHR Articles 9 and 14

May 1st, 2018 by James Goudie QC in Human Rights and Public Sector Equality Duty

In R (Adath Yisroel Burial Society) v Senior Coroner for Inner North London (2018) EWHC 969 (Admin) a Divisional Court (Singh LJ and Whipple J) observed (paragraph 94) that in Eweida v UK the ECtHR emphasized the importance of the rights set out in Article 9, and stated that there are several things of importance to note about the terms of Article 9:-

“96.      First, it does not protect only freedom of religion. It protects freedom of all thought (including the beliefs of those who have no religious faith) and freedom of conscience.

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Judicial Review

April 26th, 2018 by James Goudie QC in Judicial Control, Liability and Litigation

Section 31(2A) of the Senior Courts Act was introduced by Section 84 of the Criminal Justice and Courts Act 2015, coming into effect on 13 April 2015. It provides:

 

“(2A) The High Court –

(a) must refuse to grant relief on an application for judicial review … if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.”

The forms of relief referred to in Section 31(1)(1) include “(a) a mandatory, prohibiting or quashing order” and “(b) a declaration or injunction under subsection (2)”. Subsections (2B) and (2C) state:

“(2B) The court may disregard the requirements in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest.

(2C) If the court grants relief … in reliance on subsection (2B), the court must certify that the condition in subsection (2B) is satisfied.”

In R (Goring-on-Thames Parish Council) v South Oxfordshire District Council (2018) EWCA Civ 860 the Parish Council contended that Section 31(2A) has no application when a claimant succeeds in establishing a substantive error of law, as opposed to “a mere procedural technicality”.  The Court of Appeal rejected this contention.  The Court said:

“47.    … In our view … the proposition that the section 31(2A) duty applies only to “conduct” of a merely “procedural” or “technical” kind, and not also to “conduct” that goes to the substantive decision-making itself, is a surprising concept. The duty has regularly been applied to substantive decision-making across the whole spectrum of administrative action … both at first instance and in decisions of this court … Although we did not hear full argument on the point, we would be prepared to say that the narrow construction of section 31(2A) contended for by the parish council is, on the face of it, mistaken. It does not seem to us to gain any real support in the first instance decisions on which Mr Streeten relied. The concept of “conduct” in section 31(2A) is a broad one, and apt to include both the making of substantive decisions and the procedural steps taken in the course of decision-making. It is not expressly limited to “procedural” conduct. Nor, in our view is such a qualification implied. …”

“53.    But there is, we think, a further point that can fairly be made here. As we suggested to Mr Streeten while he was making his submissions to us, his argument on the construction and scope of section 31(2A) faces a fatal difficulty, which is that ultimately it proves too much … If the argument was right, and the concept of “conduct” in section 31(2A) does not extend to substantive as well as to procedural errors of law, so that the duty in that section did not apply in this case, the court would still have had its discretion as to relief, which it would have had to exercise in accordance with the well established principles in Simplex GE (Holdings) Ltd. v Secretary of State for the Environment (1989) 57 P. & C.R. 306. It would then have had to consider whether there was any realistic possibility of the district council’s decision being different but for the error of law (see Lord Carnwath’s judgment in Walton  v Scottish Ministers [2012] UKSC 44, at paragraphs 111 and 112, his judgment in R. (on the application of Champion) v North Norfolk District Council [2015] UKSC 52, at paragraphs 54 to 66, and the discussion in De Smith’s Judicial Review, eighth edition, paragraphs 18-047 to 18-050 and 18-057). …”

“55.    … If … the court is to consider whether a particular outcome was “highly likely” not to have been substantially different if the conduct complained of had not occurred, it must necessarily undertake its own objective assessment of the decision-making process, and what its result would have been if the decision-maker had not erred in law.”

 

 

 

Termination of Employment Contract

April 25th, 2018 by James Goudie QC in Decision making and Contracts

The issue in Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood (2018) UKSC 22 was when the notice period begins to run, if an employee is dismissed on written notice posted to his home address. If the answer is not specified in the contract of employment, is it (i) when the letter would have been delivered in the ordinary course of post; (ii) when it was in fact delivered to that address; or (iii) when the letter comes to the attention of the employee and he or she has either read it or had a reasonable opportunity to do so? Read more »

 

Variation of Employment Contracts

April 24th, 2018 by James Goudie QC in Decision making and Contracts

Does an employee continuing to work following implementation of a pay freeze constitute acceptance of a variation of contractual provisions in collective agreements giving entitlement to pay progression? It all depends on the circumstances of the case, says the Court of Appeal in Abrahall v Nottingham City Council (2018) EWCA Civ 796.  Underhill LJ reviewed Rigby v Ferodo, Jones v Associated Tunnelling, Selectron, Khatri, and Cartwright v Tetrad.  Underhill LJ described Khatri as “significant”, including because of its endorsement that conduct relied upon to constitute an acceptance must be “only acceptable to the employee having accepted the proposed variation”.  Underhill LJ said:-

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