The Information Commissioner has issued Guidance on data protection consideration when sharing personal information for childcare purposes. The theme is that data protection law permits information sharing in a fair and proportionate way when that is required (1) in order to identify children at risk of harm and (2) safeguard them from harm. Indeed appropriate information sharing is central to safeguarding children from harm effectively and promoting their wellbeing. Read more »
UNLAWFUL PROTESTS
September 1st, 2023 by James Goudie KC in Judicial Control, Liability and LitigationEsso v Breen ( 2023 ) EWHC 2013 ( KB ) concerns an application for a permanent injunction to restrain unlawful protests. The claimant must (1) establish a specific cause of action’ (2) as regards persons unknown, satisfy the Canada Goose guidance in so far as it applies to final relief, (3) satisfy s 12(2) HRA 1998 as to service, and (4) show interference with ECHR Articles 10 and 11 is justified.
VICARIOUS LIABILITY
August 25th, 2023 by James Goudie KC in Judicial Control, Liability and LitigationIN MXX v A Secondary School ( 2023 ) EWCA Civ 996 the Court of Appeal examines the 2 stage test for vicarious liability : (1 ) Whether the relationship of the defendant and the tortfeasor is one that is capable of giving rise to vicarious liability, which is not limited to employment, and ( 2 ) , if so, whether whether the connection that links that relationship between the defendant and the tortfeasor with the act or omission of the tortfeasor is sufficiently close to give rise to vicarious liability.
HOMELESSNESS
August 14th, 2023 by James Goudie KC in HousingIn R ( Ahamed ) v Haringey LBC ( 2023 ) EWCA Civ 975 the Court of Appeal considers the relationship between Sections 189B and 193 of the Housing Act 1996. At paragraph 46 Newey LJ says that he would not exclude the “ possibility “ of a person being homeless, and so owed the main housing duty, despite having suitable accommodation available for occupation and a reasonable prospect of retaining it for at least 6 months, but that this is not a likely scenario. TYPICALLY the matters rendering the accommodation potentially suitable for at least 6 months will also “ tend to make “ it such as it would be reasonable to continue to occupy.
INCIDENTAL POWER
August 2nd, 2023 by James Goudie KC in Decision making and ContractsIn these post-GPOC days, now in Wales as well as England, source of vires issues tend to loom less large, as the localism legislation intends, but questions still crop up as to what may be authorised by the general power in Section 111 of the Local Government Act 1972, in conjunction with some other power. In R ( Ball ) v Hinckley & Bosworth BC (2023) EWHC 1922 ( Admin ) at para 73 a reminder : “ That section has a wide ambit but its scope is not unlimited. “ Where there are provisions expressly defining the way in which a local authority’s particular powers are to be exercised then Section 111 does NOT operate to enable the exercise of those powers in a different way : Sutton LBC v Morgan Grenfell. Similarly, Section 111 CANNOT be used as an “ escape route “ to act in a way that is inconsistent with other statutory provisions “Credit Suisse v Allerdale BC.
PRIVATE-HIRE VEHICLES
July 31st, 2023 by James Goudie KC in Environment, Highways and LeisureIn Uber Brittania Ltd v Sefton MBC (2023) EWHC 1975 ( JB ) the Court grants a declaration that in order to operate lawfully under the Local Government ( Miscellaneous Provisions) Act 1976 a licensed operator who accepts a booking from a passenger is required to enter as principal into a contractual obligation with the passenger to provide the journey which is the subject of the booking.
DATA PROTECTION
July 31st, 2023 by James Goudie KC in Non Judicial ControlArticle 6 of the GDPR states that processing of data shall be lawful ONLY IF AND TO THE EXTENT that at least one of 6 situations applies. These include when processing is NECESSARY for the performance of a task carried out in the PUBLIC INTEREST or in the exercise of official authority vested in the controller. In Case C-252/21, the META case, the CJEU Grand Chamber says at paras 108-112 inclusive that this means that the legitimate data protection issues pursued must not be reasonably capable of being achieved just as effectively by other means less restrictive of the rights and freedom of data subjects. A balance then requires to be struck. Particular attention must be paid when the data subject is a child.
EMISSIONS
July 28th, 2023 by James Goudie KC in Environment, Highways and LeisureIn R ( Hillingdon LBC ) v Mayor of London ( 2023 ) EWHC 1972 ( Admin ) Swift J dismisses all 3 grounds of challenge to the Mayor’s decision under the Greater London Authority Act 1999 to confirm the Greater London Low Emission Zone Charging Order, expanding, with effect from 29 August 2023, the London Ultra Low Emission Zone road charging area ( the ULEZ ).
The first ground was whether it was lawful for the Mayor to extend the ULEZ by amending the existing vehicle charging scheme and whether the 2022 Order was made consistently with all obligations arising under the 1999 Act ; paras 3-24 inc.
The second ground was whether there was sufficient and sufficiently clear information provided for the purposes of the consultation exercise: paras 25-37 inc.
The third ground was whether the Mayor’s decision was lawful on the grant payment to meet the cost of the scrappage scheme : paras 38-46 inc.
INTENTIONAL HOMELESSNESS
July 28th, 2023 by James Goudie KC in HousingHodge v Folkestone & Hythe District Council (2023) EWCA Civ 896 reaffirms that (1) whether the place which an applicant happens, or happened, to occupy is, or was, “accommodation” for the purposes of Section 191(1) of the Housing Act 1996 is a question of fact for the local housing authority, subject to Wednesbury, and (2) whether it is reasonable for an applicant to continue to occupy temporary accommodation is also a question of fact for the authority, subject to Wednesbury.
PROCUREMENT DAMAGES
July 28th, 2023 by James Goudie KC in Judicial Control, Liability and LitigationPCR 2015 confer a cause of action for damages only on commercial undertakings that had sought to obtain for themselves a relevant public contract. No right to bring proceedings is conferred on other commercial operators such as sub-contractors, or legal entities further removed, such as sub-sub contractors or related group companies. So held in the National Lottery challenge, IGT v Gambling Commission (2023) EWHC 1961 (TCC).