WHISTLEBLOWING LIABILITY

March 26th, 2024 by James Goudie KC in Judicial Control, Liability and Litigation

According to the structure of the whistleblowing legislation, in order for employers to be fixed with liability, B ought to have some knowledge of what the claimant is complaining or expressing concern about. It is not enough that B knows that the claimant has made a claim to A. So observes Sheldon J in Nicol v World Travel, EA-2023-000036-JOJ.

 

PSED

March 20th, 2024 by James Goudie KC in Human Rights and Public Sector Equality Duty

When a breach of the PSED under Section 149 of the Equality Act 2010 is alleged, a failure, without good reason, to follow the Equality and Human Right’s Commission Guidance can be evidence of breach of duty. A breach was found in R ( DXX ) v SSHD ( 2024 ) EWHC 579 ( Admin ). The Commission’s Guidance about equality evidence, and in particular the collection of statistical data, was not followed.

 

TRAFFIC

March 19th, 2024 by James Goudie KC in Environment, Highways and Leisure

The Secretary of State for Transport has made a series of announcements to implement the PLAN FOR DRIVERS. The package includes Guidance on 20 mph speed limits bus lanes, and lane rental schemes, as well as on LTNs. It also gives warning of restrictions on a local authority’s ability to enforce traffic restrictions.

 

Consultation

March 19th, 2024 by James Goudie KC in Decision making and Contracts

In R ( Police & Crime Commissioner for West Midlands ) v SSHD (2024 ) EWHC 604 ( Admin )  Swift J considers aspects of the requirements for a fair and lawful consultation. First, at paras 9-20 inc, whether the consultation was undertaken with an open mind, the 1st & 4th GUNNING principles, or. there was a real possibility of predetermination, as distinct from predisposition. Second, at paras 21-42 inc, whether, in the context in which the consultation occurred, sufficient information was given to permit intelligent and informed responses, , the second GUNNING principle.

 

LTNs

March 18th, 2024 by James Goudie KC in Environment, Highways and Leisure

The Department for Transport has published draft statutory Guidance, to come into force from this Summer, for local authorities, on Low Traffic Neighbourhoods, and the implementation of new schemes, setting out that they must gain “ buy-in “ from local residents, businesses and emergency services. It warns that, if local authorities do not comply, they could see funding withdrawn, control being taken of their roads, and removal of access to DVLA data.

 

LAW ENFORCEMENT COOPERATION : FREE FLOW OF DATA

March 18th, 2024 by James Goudie KC in Judicial Control, Liability and Litigation

The free flow of data between the UK and the EU of course remains vital not only for effective law enforcement cooperation but also for trade and economic relations. Notwithstanding partial Brexit, currently the transfer of criminal investigation and commercial data is based on an EU adequacy decision, the UK GDPR, the EU Law Enforcement Directive, and the EU Commission’s processes. However, the adequacy direction expires next year, and there may be a divergence between the EU and UK data protection regimes. The House of Lords European Affairs Committee, chaired by Lord Ricketts, has launched an Inquiry into EU-UK data adequacy possible challenges to the adequacy regime, the factors that will influence a future  EU adequacy decision, and the implications should that decision be negative. Written evidence is sought by 3rd May, and there will be public evidence sessions over the next 3 months, with a view to a Report by July 2024.

 

LIMITATION

March 15th, 2024 by James Goudie KC in Judicial Control, Liability and Litigation

When does time start to run for limitation purposes on interest on costs where the order is for costs to be assessed? Not until the costs are assessed and become due, payable and enforceable, say the Court of Appeal in DEUTSCHE BANK v SEBASTIAN HOLDINGS ( 2024 ) EWCA Civ 245.

 

PROCEDURAL CHANGES

March 15th, 2024 by James Goudie KC in Judicial Control, Liability and Litigation

There is a well-established general presumption that changes to procedure apply not only to future proceedings but also to pending proceedings. This is because a procedural change is expected to improve matters and support the better administration of justice. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be. A litigant has no right to complain that procedure is changed during the course of litigation unless it causes unfairness or injustice.

How fairness determines such retrospective application depends on several factors. These include the value of any rights which the new rule affects and the extent to which that value is diminished or extinguished. Light may be shed by consideration of the circumstances in which the legislation was enacted.

The essential question in MELKI v BOUYGUES ( 2024 ) EAT 36, at paras 25-29 inclusive, was whether changes to the Employment Appeal Tribunal Rules applying to pending proceedings was so unfair that the that the words used in the statutory instrument cannot have been intended to mean what they might appear to say. That was simply that the new Rules came into force on a specified date, without any transitional provision. The Rules had been amended to improve the fairness and justice of consideration of incomplete Notices of Appeal. The previous Rules were amended as they were too rigid in cases of minor errors and led to potential unfairness. The new Rule was proposed to draw a better balance between parties.

Whether it be the EAT Rules or the CPR Rules, Rules change from time to time. Unless a transitional provision is included stating the opposite , or unless there is more than modest unfairness to the respondent, the new provision applies to all litigation from the date it is expressed to come into force. There is no absurdity about the test being different before and after that date.

 

DEPRIVATION OF LIBERTY

March 14th, 2024 by James Goudie KC in Social Care

For there to be a deprivation of liberty, the individual has to be under constant supervision and control, and not be free to leave. Peterborough City Council v Mother ( 2024 ) EWHC 493 ( Fam ) holds that while a severely disabled 12 year old girl was undoubtedly under constant supervision and control, that was in order to meet her care needs, not to prevent her leaving her home, and so there was no deprivation of liberty in her case.

 

ANTI-SOCIAL BEHAVIOUR

March 11th, 2024 by James Goudie KC in Local Authority Powers

Swindon Borough Council v Abrook ( 2024 ) EWCA Civ 221 concerns anti-social behaviour for the purposes of Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014, in the context of begging. The Court of Appeal holds ( paras 108-111 inclusive ) that ( 1 ) a  distinction between “ aggressive “ and “ passive “ begging is not helpful : it should not be substituted for the statutory test; ( 2 ) the fact that the impugned conduct falls within the statutory definition is not enough : the Court must also be satisfied that it is just and convenient to make an Order; ( 3 ) a power of arrest should not be attached toman Order as a matter of course; and (4 ) applicants must observe the restrictions on without notice applications and interim injunctions.