MERGER

February 21st, 2025 by James Goudie KC in Judicial Control, Liability and Litigation

The appeal in NASIR v ZAVARCO plc (2025) UKSC 5 concerned the scope of the longstanding English law doctrine of merger. In short, the question is whether the doctrine, by which a cause of action merges with a judgment in the action, applies to a declaratory judgment. The Supreme Court held that it does not.

The doctrine of merger was developed as a means to promote finality in litigation and to prevent duplicative and vexatious litigation. Unlike the standard defence of res judicata in the form of cause of action estoppel, which prevents the contradiction of an earlier judgment as to the existence or non-existence of a cause of action, merger was designed to make a litigant seek his or her remedies in one action by extinguishing a cause of action when judgment has been given on it. Read more »

 

ANTI-SOCIAL BEHAVIOUR

February 19th, 2025 by James Goudie KC in Local Authority Powers

TROWER v ELMBRIDGE BOROUGH COUNCIL ( 2025 ) EWHC 314 ( Admin ) concerns a challenge to a PUBLIC SPACES PROTECTION ORDER under the ANTI-SOCIAL BEHAVIOUR etc ACT 2014 restricting the unauthorised mooring of riverboats in certain areas.  It had been reasonable for the authority to conclude that littering and noise from boat users was anti-social behaviour and to associate the behaviour with unauthorised mooring. It was a legitimate factor that boats in neighbouring areas might be displaced into the authority’s area.

 

CHILDREN IN NEED

February 19th, 2025 by James Goudie KC in Social Care

Local authorities are required to deliver necessary support to a child in need under the Children Act 1989. In WEST SUSSEX COUNTY COUNCIL v AB ( 2025 ) EWCA Civ 132the Court of Appeal says that a court order should not be used solely to encourage an authority to do that which it is already statutorily obliged to do. Once a full care order is made the Court would not have jurisdiction to review the operation of a care plan or require the authority to adhere to the key elements of any care plan; and the authority could amend or fundamentally alter a Court approved care plan.

 

PUBLIC PROCUREMENT

February 18th, 2025 by James Goudie KC in Decision making and Contracts

The Procurement Act 2023 (Consequential and other Amendments) Regulations 2025, S.I. 2025/163, make substantive amendments to the Procurement Act 2023 (PA 2023) and the Procurement Regulations 2024 (PR 2024), as well as consequential amendments arising from the coming into force of the PA 2023.  They: update certain specified threshold amounts; reflect additions and amendments to the UK’s international obligations in respect of procurement; make consequential amendments to primary legislation rendered necessary by the coming into force of the PA 2023; make amendments to the PR 2024 that address a small number of matters for which provision was not made in those Regulations; contain consequential amendments to secondary legislation and assimilated law which are rendered necessary by the coming into force of the PA 2023; make repeals and revocations rendered necessary by the coming into force of the PA 2023; and contain transitional provisions.

A collection of updated Cabinet Office Procurement Policy Notes include: PPN 001: Small and Medium-Sized Enterprises (SME) and Voluntary, Community and Social Enterprises (VCSE) procurement spend targets; PPN 002: Taking account of social value in the award of contracts; PPN 003: the Public Services (Social Value) Act 2012; PPN 004: Open Book Contract Management; PPN 005: Reserving below threshold procurements; PPN 006: Taking account of Carbon Reduction Plans in the procurement of major government contracts; PPN 007: Contracts with Russia and Belarus; PPN 008: Armed Forces Covenant; PPN 009: Tackling modern slavery in government supply chains; PPN 010: Procuring steel in government contracts; PPN 011: The Commercial Playbooks; PPN 012: Security Classifications Policy; PPN 013: Using standard contracts; PPN 015: How to take account of a supplier’s approach to payment in the procurement of major contract; PPN 016: Carbon Reduction Contract Schedule; PPN 017: Improving transparency of AI use in procurement; and PPN 018: How to take account of a supplier’s approach to payment in the procurement of major contracts.

 

CHARGEABLE DWELLINGS

February 18th, 2025 by James Goudie KC in Council Tax and Rates

In the common situation of a house in MULTIPLE OCCUPATION where each of the bedrooms is ( 1 ) lockable and ( 2 ) EXCLUSIVELY OCCUPIED by a separate tenant, who shares the common parts, STANUSZEK v BUNYAN ( Listing Officer ) ( No 2 ) ( 2025 ) EWHC 255 ( Admin ) holds that each falls to be assessed for council tax purposes under the Local Government Finance Act 1992 as a SEPARATE DWELLING/hereditament. It is irrelevant that the tenants share the common areas of the house, which include a kitchen and a living room. A single hereditament cannot contain discrete parts occupied by different persons. “ Occupation “ of a space in rating law as defined by the Court of Appeal in JS LAING v KINGSWOOD ASSESSMENT COMMITTEE requires exclusive possession of that space. Applying the geographical WOOLWAY v MAZARS Supreme Court test on the identification of an hereditament each bedroom in the HMO was “ capable “ of being a separate and discrete hereditament, AND it was separately occupied.

 

CLARIFICATIONS DURING A TENDER PROCESS

February 18th, 2025 by James Goudie KC in Decision making and Contracts

In WORKING ON WELLBEING LTD v SoS (2025) EWCA Civ 127 Coulson LJ (with whom Frazer and Zacaroli LJJ agree) summarises the relevant principles as follows:-

“82.     I consider that the authorities demonstrate that there are three stages to consider when addressing whether or not, in the particular circumstances of any given case, a contracting authority has the discretion to seek clarification, when that discretion becomes a duty, and what the permissible limits are to any response to a request for clarification.

Stage One

  1. The first stage arises only where the error or ambiguity is obvious to the contracting authority and is material to the outcome of the competition. That will be rare, which explains why any duty to seek clarification will only arise in exceptional cases … the only question is whether the error or ambiguity was obvious to the contracting authority: it is not a question of the error or ambiguity being “objectively verifiable”.
  2. All of the cases stress that the error of ambiguity must be “serious” and “manifest”… The error or ambiguity must also be “material” or “significant”: it must be relevant to the “outcome” of the tender process… If the error or ambiguity is immaterial or irrelevant to the final outcome of the competition, no further action is necessary.

Read more »

 

PRE-SCHOOL CHILDREN

February 11th, 2025 by James Goudie KC in Social Care

Under the Government’s FREE EARLY EDUCATION ENTITLEMENT  Scheme ( FEEE ) local authorities have a duty to secure the provision of 570 hours in any year of free early years CHILDCARE PROVISION for eligible children. The primary statutory on local authorities, under Section  7 ( 1 )  of the CHILDCARE ACT 2006 is to ensure that FEEE hours are available to all qualifying parents of pre-school children on a “ free of charge “ basis. Under Section 7 ( 2 )  each local authority has to “ have regard to “ STATUTORY GUIDANCE on “ Early Education and Childcare “. This indicates that authorities have to ensure that childcare providers do not charge parents “ top-up “ fees. These provisions, and the Local Authority ( Duty to Secure Early Years Provision Free of Charge ) Regulations 2014, are considered in R ( BOURNEMOUTH< POOLE and CHRISTCHURCH COUNCIL ) v LOCAL GOVERNMENT AND SOCIAL CARE OMBUDSMAN  ( 2025 )  EWHC 224 ( Admin ) If nurseries were permitted to impose compulsory charges on parents as a condition of accessing FEEE hours, the childcare would not be free of charge. Any proposed charges for FEEE hours have to be voluntary. Arrangements have to be structured so that parents are able to refuse to pay any proposed charges for additional goods or services.

 

WHETHER INFORMATION HELD

February 11th, 2025 by James Goudie KC in Environment, Highways and Leisure

A local authority had not been entitled under Regulation 12(4)(a) of the ENVIRONMENTAL INFORMATION REGULATIONS to decline an Information Request for a List or Map of which roads would be subject to a new 20 mph speed limit on the ground that it did not “ hold “ the information. So held in ROBERTS v INFORMATION COMMISSIONER ( 2025 ) UK FTT 111 ( GRC ). The authority held the necessary information, albeit in a different format. Producing a list or map would not require any particular skill or judgment outside that found within its staff. Where information requested under the EIR or the FoIA could be produced only from raw data or building blocks through some processing or other operation, whether the information is “ held “ depends upon the complexity of the operations needing to be performed and the degree of skill and judgment necessary to if a particular building block should be regarded as contributing to the requested information.

 

WHEN DUTY CEASES

February 10th, 2025 by James Goudie KC in Housing

In R ( BANO ) v WALTHAM FOREST LBC ( 2025 ) EWCA Civ 92 the Court of Appeal holds that a local housing authority’s main housing duty, under Section 193(2) of the Housing Act 1996, comes to an end automatically upon refusal by the applicant of a private rented sector offer. The authority’s duty under Section 193 ceases as soon as a formal offer of accommodation under Part 6 of the Act  is refused or a private rented sector offer in respect of which the requisite information has been supplied is accepted or refused. The authority does not have to make a a decision that it considers its duty to have ceased or inform the applicant that its duty has ceased.

 

ENVIRONMENTAL INFORMATION REGULATIONS ( EIR )

February 7th, 2025 by James Goudie KC in Environment, Highways and Leisure

A draft report relating to the Council’s environmental LOW TRAFFIC NEIGHBOURHOOD scheme was the subject matter of GREENWICH RLBC v INFORMATION COMMISSIONER ( 2025 ) UK FTT 85 ( GRC ). This remained a live and contentious issue at the time of the information request. There was the real possibility of litigation. It is held that a document does not have to be legally privileged to qualify for exemption from disclosure under EIR Reg 12(5)(b). The test is whether disclosure would adversely affect the course of justice ( paras 41 & 53 ). Moreover, LPP attaches to documents where the sole purpose is to seek legal advice, including such a document created before legal advice is sought ( paras 37-40 ). Also, Reg 12(4)(d) applied ( paras 44-53 inc  ), the purpose of which is to allow public authorities to think in private.

 

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