Judicial Control, Liability and Litigation

July 20th, 2016 by James Goudie KC in Judicial Control, Liability and Litigation

The Supreme Court has held by a 5-4 majority in Willers v Joyce (Neil) [1016] UKSC 43 that the tort exists of malicious prosecution not only in relation to criminal proceedings but also in relation to civil proceedings.  The Supreme Court considered and departed from the House of Lords decision in Gregory v Portsmouth City Council [2000] 1 AC 1412, preferring the decision of the Privy Council in Crawford v Sagicon [2014] AC 366.

 

Abandoning Statutory Rights

July 20th, 2016 by James Goudie KC in Decision making and Contracts

With respect to contracting out of or waiving statutory rights, the Privy Council per Lord Clarke, enunciated the following principles in Bahamas Oil Refining Co v The Owners of the Cape Bari [2016] UKPC 20:-

  1. Someone may by their conduct contract out of or waive a provision of an Act of Parliament intended for their benefit and exclude a legal right: paragraph 23;
  2. For a party to be held to have abandoned or contracted out of valuable rights arising by operation of law the contractual provision relied upon must make it clear that this is what was intended: paragraph 31;
  3. This principle applies in very many contexts: paragraph 32;
  4. A Court is unlikely to be satisfied that valuable rights arising by operation of law have been abandoned unless the terms of the contract make it sufficiently clear that that was intended: paragraph 33;
  5. The more valuable the right, the clearer the language will need to be: ibid.

 

Target of Judicial Review

July 18th, 2016 by James Goudie KC in Judicial Control, Liability and Litigation

In the Judicial Review claim R (Southwark LBC) v LFEPA [2016] EWHC 1701 (Admin) it was contended that there were two decisions, each of which had to be addressed.  The first was a decision to retain responsibility for a decision whether or not to prosecute.  The second was said to be the decision not to change the first decision.  This contention was rejected by a Divisional Court.  Sir Brian Leveson, delivering the Judgment of the Court said, at paragraph 56:

“In our judgment, the argument is entirely misconceived: there is but one decision that requires to be assessed. Thus, the original decision continues to operate until it is brought into effect or reversed. In the absence of new facts which might justify a change of approach, a second decision is not made simply as a consequence of a refusal to change the first one. Were it otherwise, the time limit for judicial review of any decision could be re-started following a refused request to change it.”

 

Equal treatment

July 18th, 2016 by James Goudie KC in Decision making and Contracts

In Gallaher Group Limited v Competition and Markets Authority (2016) EWCA Civ 719 the Court of Appeal considered the application of the EU and common law principle of equal treatment.  Lord Dyson MR said, at paragraph 39: “In my view, the fact that one party (A) has made a request for more favourable treatment and another party (B) has not done so will rarely amount to a good reason for not treating them as being in a relevantly comparable position for the purposes of equal treatment if they are in fact otherwise in relevantly comparable positions”.

On the matter of objective justification for not replicating in favour of the appellants the approach adopted in relation to another because that approach had been mistaken, the question (paragraph 53) is whether the difference in treatment is “fair in all the circumstances”. “The fact that a decision by a public authority is mistaken is not a “trump card” which will always carry the day so as to permit the authority not to replicate the mistake regardless of the circumstances. …  the question is whether there has been unfairness on the part of the authority having regard to all the circumstances. The fact that there has been a mistake may be an important circumstance. It may be decisive. It all depends.”

Lord Dyson continued, at paragraph 54: “The law relating to legitimate expectation is of some assistance here. It is well established that a legitimate expectation cannot be relied on to require a public authority to act in breach of its statutory duty or to do something ultra vires. … But the courts have considered whether a public authority may defeat a legitimate expectation where the expectation has been created by mistake. In R v Department for Education and Employment, ex p Begbie [2000] 1 WLR 1115, 1127B-D, Peter Gibson LJ said that, where the court is satisfied that a mistake has been made, the court should be slow to fix the public authority permanently with the consequences of a mistake. But importantly, he went on to say that the question of whether the authority should be permitted to resile from a mistaken statement depends on whether that would give rise to unfairness amounting to an abuse of power. The law relating to legitimate expectation is grounded in fairness.” Longmore and Lloyd Jones LJJ agreed.

 

Repeat homelessness applications

July 18th, 2016 by James Goudie KC in Housing

The Housing Act 1996 places no limit on the number of times an applicant may make a Part VII homelessness application. In R (Hoyte) v Southwark LBC [2016] EWHC 1665 (Admin) the Court applied the House of Lords decision in R v Harrow LBC, ex p Fahia: an applicant cannot make a further application based on “exactly the same facts” as an earlier application.  If an application is “not identical” to an earlier one, there is no short cut of “non-statutory” inquiries. The statutory process must be followed.

However, the decision as to whether there are any new facts is one for the local housing authority. It is challengeable only on judicial review grounds.

 

Structural funds

July 15th, 2016 by James Goudie KC in Capital Finance and Companies

Case C-460/14, brought by the City of Wroclaw in Poland, concerns the award of a public contract for the construction of a ring road in Wroclaw. The project benefited from EU financial assistance. The City stipulated in the tender specifications that the successful tenderer was to perform at least 25% of the works covered by the contract using its own resources. The public authority in Poland competent to verify proper use of the EU funding took the view that that stipulation infringed the principle of fair competition and therefore was inconsistent with Directive 2004/18/EC.  As a consequence, that authority imposed on the City a flat rate correction of 5% of the amount of eligible costs borne by public funds. The City challenged the financial correction before a Polish Administrative Court, which made a reference to the ECJ.

Directive 2004/18 coordinated at EU level national procedures for the award of public contracts above a certain value.  It aimed to ensure the effects of the principles of freedom of movement of goods, freedom of establishment, and freedom to provide services and the principles deriving therefrom, including the principles of equal treatment, non-discrimination and transparency. It also aimed to guarantee the opening-up of public procurement to competition. The Directive contained provisions on subcontracting, in order to encourage the involvement of small and medium-sized undertakings in the public contracts procurement market.  Pursuant to the first paragraph of Article 25 (“Subcontracting”), in the contract documents, the contracting authority might ask or may be required by a Member State to ask the tenderer to indicate in his tender any share of the contract he may intend to subcontract to third parties and any proposed subcontractors. Under Article 26 (“Conditions for performance of contracts”), contracting authorities might lay down special conditions relating to the performance of a contract, provided that these are compatible with EU law and are indicated in the contract notice or in the specifications.

Article 1(1) of Council Regulation No. 2988/95 provides: “For the purposes of protecting the European Union’s financial interests, general rules are hereby adopted relating to homogenous checks and to administrative measures and penalties concerning irregularities with regard to EU law”. Article 1(2) defines “irregularity” as “any infringement of a provision of EU law resulting from an act or omission by an economic operator, which has, or would have, the effect of prejudicing the general budget of the European Union or budgets managed by it, either by reducing or losing revenue accruing from own resources collected directly on behalf of the European Union, or by an unjustified item of expenditure”.  Article 2 provides in particular that administrative checks, measures and penalties shall be introduced in so far as they are necessary to ensure the proper application of EU law. They shall be effective, proportionate and dissuasive so that they provide adequate protection for the European Union’s financial interests.

Regulation No. 1083/2006 lays down general rules governing the Funds, i.e. the European Regional Development Fund, the European Social Fund and the Cohesion Fund, including principles and rules on financial management, monitoring and control on the basis of responsibilities shared between the Member States and the European Commission.

In its Judgment on 14 July 2016 the ECJ held that Directive 2004/18 prohibited a contracting authority such as the City of Wroclaw from stipulating that the successful tenderer for a public works contract was required to perform part of those works, specified in abstract terms as a percentage, using its own resources; and that Article 98 of Regulation 1083/2006, read in conjunction with Article 2(7) of that Regulation, must be interpreted as meaning that the fact that a contracting authority imposed a requirement, in the context of a public works contract relating to a project receiving EU financial aid, that the future contractor perform by means of its own resources at least 25% of those works, in infringement of Directive 2004/18, constitutes an “irregularity” within the meaning of Article 2(7) of that regulation, justifying the need to apply a financial correction under Article 98 thereof, in so far as it cannot be excluded that that infringement had an impact on the budget of the Fund at issue. The amount of that correction must be calculated by taking into account all of the specific circumstances which are relevant in the light of the criteria referred to in the first paragraph of Article 98(2) of that Regulation, namely the nature and gravity of the irregularity and the resulting financial loss to the Fund concerned.

 

Public contract award procedures

July 15th, 2016 by James Goudie KC in Decision making and Contracts

In Case C-6/15, TNS Dimarso NV v Vlaams Gewest, Judgment on Bastille Day 2016, the ECJ has held that Article 53(2) of Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, read in the light of the principle of equal treatment and of the consequent obligation of transparency, must be interpreted as meaning that, in the case of a public service contract to be awarded pursuant to the criterion of the most economically advantageous tender in the opinion of the contracting authority, that authority is not required to bring to the attention of potential tenderers, in the contract notice or the tender specifications relating to the contract at issue, the method of evaluation used by the contracting authority in order to specifically evaluate and rank the tenders. However, that method may not have the effect of altering the award criteria and their relative weighting.

The ECJ stated the principles as follows:-

“… it should be noted that where the contracting authority decides to award a contract to the most economically advantageous tender, under Article 53(2) of Directive 2004/18, it must specify in the contract notice or the tender specification the relative weighting it gives to each of the award criteria chosen in order to determine the most economically advantageous tender. That weighting may be expressed by providing for a range with an appropriate maximum spread. Where, in the opinion of the contracting authority, weighting is not possible for demonstrable reasons, the contracting authority shall indicate in the contract notice or tender specifications or, in the case of a competitive dialogue, in the descriptive document, the criteria in descending order of importance.

As stated in recital 46 of Directive 2004/18, the purpose of those requirements is to enable all tenderers to be reasonably informed of the criteria and arrangements which will be applied to identify the most economically advantageous tender. In addition, they reflect the duty of the contracting authorities under Article 2 of the directive to treat economic operators equally and non-discriminatorily and to act in a transparent way.

According to settled case-law, the principle of equal treatment and the obligation of transparency entail, in particular, that tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed by the contracting authority …

Thus, the Court has held that the subject matter of each contract and the criteria governing its award must be clearly defined from the beginning of the award procedure … and that a contracting authority cannot apply, by way of award criteria, sub-criteria which it has not previously brought to the tenderers’ attention … Similarly, the contracting authority must interpret the award criteria in the same way throughout the procedure …

Those requirements apply, in principle, mutatis mutandis to contracting authorities’ obligation to indicate, in the contract notice or the tender specifications, the ‘relative weighting’ of each of the award criteria. Thus, the Court has held that a contracting authority may not, in principle, apply weighting rules which it has not previously brought to the tenderers’ attention …

In particular, the relative weighting of each of the award criteria must, subject to the third subparagraph of Article 53(2) of Directive 2004/18, be clearly defined from the beginning of the award procedure, thus enabling tenderers to establish objectively the actual importance given to an award criterion relative to another during their subsequent evaluation by the contracting authority. Similarly, the relative weighting of each of the award criteria cannot be changed throughout the procedure.

Nonetheless, the Court has accepted that it is possible for a contracting authority to determine, after expiry of the time limit for submitting tenders, weighting factors for the sub-criteria which correspond in essence to the criteria previously brought to the tenderers’ attention, provided that three conditions are met, namely that that subsequent determination, first, does not alter the criteria for the award of the contract set out in the tender specifications or contract notice; secondly, does not contain elements which, if they had been known at the time the tenders were prepared, could have affected their preparation; and, thirdly, was not adopted on the basis of matters likely to give rise to discrimination against one of the tenderers …

However, neither Article 53(2) of Directive 2004/18 nor any other provision thereof lays down an obligation on the contracting authority to bring to the attention of potential tenderers, by publication in the contract notice or in the tender specifications, the method of evaluation applied by the contracting authority in order to effectively evaluate and assess the tenders in the light of the award criteria of the contract and of their relative weighting established in advance in the documentation relating to the contract in question.

Nor is such a general obligation apparent from the case-law of the Court.

The Court has held that an evaluation committee must be able to have some leeway in carrying out its task and, thus, it may, without amending the contract award criteria set out in the tender specifications or the contract notice, structure its own work of examining and analysing the submitted tenders …

That leeway is also justified by practical considerations. The contracting authority must be able to adapt the method of evaluation that it will apply in order to assess and rank the tenders in accordance with the circumstances of the case.

In accordance with the principles governing the award of contracts provided for in Article 2 of Directive 2004/18 and in order to avoid any risk of favouritism, the method of evaluation applied by the contracting authority in order to specifically evaluate and rank the tenders cannot, in principle, be determined after the opening of the tenders by the contracting authority. However, in the event that the determination of that method is not possible for demonstrable reasons before the opening of the tenders … the contracting authority cannot be criticised for having established it only after that authority, or its evaluation committee, reviewed the content of the tenders.

In any event, pursuant to the principles governing the award of contracts … the determination by the contracting authority of the method of evaluation after the publication of the contract notice or the tender specifications cannot have the effect of altering the award criteria or their relative weighting.”

 

Level of Support

July 13th, 2016 by James Goudie KC in Social Care

In R (C, T, M and U) v Southwark LBC (2016) EWCA Civ 707 the claimants challenged the lawfulness of the accommodation and the level of financial support provided by Southwark Council to a family who have no right of recourse to public funds.  Three issues were considered by the Court of Appeal: (i) Whether the Council had an unlawful policy or practice of setting financial support to those seeking assistance under Section 17 of the Children Act 1989 (“CA 1989”) at the level of child benefit in the circumstance that they otherwise had no right of recourse to public funds; (ii) Whether the Council had an unlawful policy or practice of setting financial support to those seeking assistance under Section 17 CA 1989 at the level of payments which would have been made to asylum seekers or failed asylum seekers by the Secretary of State under Sections 4 and 95 of the Immigration and Asylum Act 1999 (“IAA 1999) in the circumstance that they otherwise had no recourse to public funds; and (iii) Whether the Council breached the appellants’ Article 8 ECHR rights because it provided them with financial support at a level less than that which it knew was necessary to prevent breach and, if so, whether the appellants are entitled to damages in respect of the breach.

The Court of Appeal observed:-

“12.It is settled law that the section 17 scheme does not create a specific or mandatory duty owed to an individual child. It is a target duty which creates a discretion in a local authority to make a decision to meet an individual child’s assessed need. The decision may be influenced by factors other than the individual child’s welfare and may include the resources of the local authority, other provision that has been made for the child and the needs of other children (see, for example R (G) v Barnet London Borough Council [2003] UKHL 57, [2004] 2 AC 208 at [113] and [118]). Accordingly, although the adequacy of an assessment or the lawfulness of a decision may be the subject of a challenge to the exercise of a local authority’s functions under section 17, it is not for the court to substitute its judgment for that of the local authority on the questions whether a child is in need and, if so, what that child’s needs are, nor can the court dictate how the assessment is to be undertaken. Instead, the court should focus on the question whether the information gathered by a local authority is adequate for the purpose of performing the statutory duty i.e. whether the local authority can demonstrate that due regard has been had to the dimensions of a child’s best interests for the purposes of section 17 CA 1989 in the context of the duty in section 11 Children Act 2004 to have regard to the need to safeguard and promote the welfare of children. It is perhaps helpful to examine that question in a little more detail.

13. Where a person has no right of recourse to public funds (i.e. the person is ineligible as a matter of law to have recourse to public funds or to the payment of sums under the Immigration and Act 1999 [‘IAA 1999’] see, for example section 54 and schedule 3 to the Nationality, Immigration and Asylum Act 2002 [‘NIAA 2002’] and paragraph 6 of the Immigration Rules), that person remains eligible to receive support from a local authority in the exercise of its powers under section 17 CA 1989. That is because, by paragraphs 2 and 3 of Schedule 3 NIAA 2002, there is an exception to the ineligibility of persons who are prohibited from being provided with mainstream housing and welfare benefits where the ineligible person is a child or the provision of section 17 support is necessary for the purpose of avoiding a breach of a person’s Convention rights … The local authority is, however, prohibited from providing accommodation or assistance for such a family pursuant to the Housing Act 1996 [‘HA 1996’].

14. A local authority that provides support for children in need under the 1989 Act is acting under its powers as a children’s services authority (a local social services authority with responsibility for children) not as a local social services authority performing functions relating to homelessness and its prevention, and not as a local housing authority. The limited nature of the local authority’s power is important. …

15. Accordingly, although in this case the local authority provided accommodation and financial support, it did so under section 17 CA 1989 and not as a consequence of any other statutory scheme. In so doing, the local authority was not required to have regard to guidance issued under another statutory scheme, for example the Homelessness Code of Guidance issued under section 182 HA 1996. That said, the overarching obligation imposed on local authorities in England (and their specified partner agencies) by section 11 CA 2004 is to “make arrangements for ensuring that – (a) their functions are discharged having regard to the need to safeguard and promote the welfare of children; and (b) any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need.” That overarching obligation casts the evidential net rather wide so that a decision based on an assessment undertaken for the purposes of section 17 CA 1989 should identify how the local authority has had regard to the need to safeguard and promote the welfare of children both individually (i.e. the subject children as regards the claim) and collectively: …

16. The Secretary of State has issued guidance to local authorities in accordance with section 7 of the Local Authority and Social Services Act 1970 about assessments of need for the purposes of section 17 CA 1989. That guidance is to be followed save in exceptional circumstances (following the principle … that a local authority has liberty to deviate from the Secretary of State’s guidance only on admissible grounds for good reason but without the freedom to take a substantially different course). …

17. There are no categories or sub-divisions of ‘children in need’ in the statutory scheme. That is hardly surprising given the enormous range of circumstances in which children present to the authorities with needs that may require assessment. That is why there is a generic assessment framework with identifiable factors that is the object of the central Government guidance that has been issued. A local authority can be expected to evidence that due regard has been had to the framework dimensions and that there has been a proper appreciation of the potential impact of the decisions that have been made on the best interests of the individual children. The decision maker would be expected to demonstrate that the impact on the individual child’s welfare is proportionate given the other factors to which they are entitled to have regard, for example, the needs of other children and the resources of the local authority.”

“21. Given that the legislative purpose of section 17 CA 1989 in the context of section 11 CA 2004 is different from that in sections 4 and 95 IAA 1999, it would be difficult for a local authority to demonstrate that it had paid due regard to the former by adopting a practice or internal guidance that described as its starting point either the child benefit rate or either of the IAA support rates. The starting point for a decision has to be an analysis of all appropriate evidential factors and any cross-checking that there may be must not constrain the decision maker’s obligation to have regard to the impact on the individual child’s welfare and the proportionality of the same.

22. There is no necessary link between section 17 CA 1989 payments and those made under any other statutory scheme; quite the contrary. The section 17 scheme involves an exercise of social work judgment based on the analysis of information derived from an assessment that is applicable to a heterogeneous group of those in need. That analysis is neither limited nor constrained by a comparison with the support that may be available to any other defined group, no matter how similar they may be to the section 17 child in need. In any event, the circumstances of those who qualify for section 17 support, those who have just arrived seeking asylum and those who have failed in their application to be granted asylum are sufficiently different that it is likely to be irrational to limit section 17 support to that provided for in a different statutory scheme.

23. In so far as it was submitted that destitution as defined by section 95 IAA 1999 i.e. an inability to meet essential living needs or inadequate accommodation, or by section 4 IAA 1999 i.e. destitution in the context of accommodation, is relevant to section 17 CA 1989, the difference between the purposes of the two statutory schemes must be borne in mind. The latter scheme is to be applied to those persons who would otherwise be ineligible for recourse to public funds in order to avoid a breach of their Convention rights. Furthermore, the section 17 scheme, unlike the IAA schemes, is not the subject of regulations that make provision for the support which is to be made available to the defined group for a specific purpose.”

The Court came to the conclusion that there was no basis to challenge the Council’s  decisions based upon a flawed policy or practice that the Council inflexibly fixed its support payments. It did not base its decisions on such things. The Court was equally clear that it would have been inappropriate for the Council to have benchmarked its payments under Section 17 CA 1989 to any other statutory scheme including that applicable under the IAA 1999. Accordingly, the Court did not accept that there had been a breach of Article 8 founding an entitlement to damages.

 

Housing

July 13th, 2016 by James Goudie KC in Housing

A person can rid of himself or herself of the status of being intentionally homeless. The question often is whether this is what has happened.  The main circumstances in which the status will cease is if “settled” accommodation is found which is subsequently lost.  The question whether accommodation is “settled” is one of fact and degree to be determined objectively and without reference to the subjective motives or beliefs of either the homeless person or the local authority.

In Huda v Redbridge LBC [2016] EWCA Civ 709 the person contended that “settled” accommodation was constituted by the fact that he had been occupying, with his family, a property under licence from a third party (L), which was procured by Redbridge Council (R) for his benefit in performance of its limited housing duty under Sections 190 of the Housing Act 1996 to persons who are in priority need but are also found to be intentionally homeless.

The Court of Appeal held that all relevant facts had to be considered. In particular, no distinction could be drawn between those factors evident from the licence agreement and factors that arose from outside the agreement, including that he had been told that no greater housing duty was owed to him. Given that his right to occupy was precarious, and that he could not have any reasonable expectation of continuing in occupation for a significant period of time, R’s reviewing officer had been entitled to find that the accommodation was not settled.

 

Contracts

July 4th, 2016 by James Goudie KC in Decision making and Contracts

There have been a number of important recent Court of Appeal decisions on the law of contract, including in relation to the following propositions: (1) if a party to an agreement promises to make extra payment in order to secure the other party’s promise to perform his existing contractual obligation to provide services and, as a result, secures a benefit, then the benefit is capable of constituting consideration for the promise: MWB Business Exchange Centres v Rock Advertising (2016) EWCA Civ 553 (“MWB”); (2) the fact that a contract contains a clause requiring any amendment to be in writing and signed by both parties does not prevent them from later making a new contract varying the contract by an oral agreement, or by conduct: Globe Motors v TRW Lucas Varity Electric Steering [2016] EWCA Civ 396, MWB; (3) a contract may be concluded where there is acceptance by the claimant by conduct of a written agreement signed by the defendant stated to be binding only after signature by the claimant: Reveille Independent LLC v Anotech International (2016) EWCA Civ 443.

 

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