EMISSIONS

July 28th, 2023 by James Goudie KC in Environment, Highways and Leisure

In 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 Housing

Hodge 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 Litigation

PCR 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).

 

PROPORTIONALITY

July 21st, 2023 by James Goudie KC in Human Rights and Public Sector Equality Duty

DALSTON PROJECTS LTD V SoS for TRANSPORT ( 2023 ) EWHC 1885 ( Admin ) considered proportionality in the context of interference with property rights from para 78. A proportionality challenge is ultimately a matter for the Court to determine and to do so with reference to all the information before it. That involves considering the substance of the decision, not the process of its making. Moreover, in coming to a judgment on proportionality, a court is not limited to assessing the decision-maker’s process, thinking or assessment at the time the decisions were made but can consider the matter in more general terms. However, although the Court itself determines proportionality objectively on the basis of its own assessment, a margin of discretion will be afforded to the decision-maker, to the extent that it has itself considered the relevant issues at the time of the challenged decision.

 

HUMAN RIGHTS ASSESSMENTS

July 20th, 2023 by James Goudie KC in Human Rights and Public Sector Equality Duty

In R ( DK ) v LONDON BOROUGH OF CROYDON ( 2023 ) EWHC 1833 ( Admin ) the claimant came came to the Uk and claimed asylum as an unaccompanied child. The Council duly accommodated and looked after him as a child in need. However, when he reached 21 and his asylum claim had been rejected the Council refused to support him any further. They relied upon Schedule 3 to NIAA 2002. He claimed that the Council should have carried out a human rights assessment.

Sir Ross Cranston ruled at paras 57-61 inc that what a local authority is required to do is to consider a request for the exercise of a power, or the performance of a duty, when support is requested by a person who but for NIAA Schedule 3 would be entitled to support. In applying the Schedule 3 prohibition the authority must consider that this does not breach ECHR rights. That may or may not involve a human rights assessment. A blanket refusal will not do.

 

Duty of Candour

July 19th, 2023 by James Goudie KC in Judicial Control, Liability and Litigation

In R ( Police Superintendents” Association ) v Police Remuneration Review Body ( 2023 ) EWHC. 1838 ( Admin ) Fordham J sets out 10 Principles governing the duty of candid disclosure in public law proceedings.

 

ECHR ARTICLE 6

July 19th, 2023 by James Goudie KC in Human Rights and Public Sector Equality Duty

In JONES v BIRMINGHAM CITY COUNCIL (2023) UKSC 27 a 7 Justice Supreme Court holds (1) that Article 6 does not require the criminal standard of proof to be satisfied in respect of proof that a person has engaged in or has encouraged or assisted gang-related violence or gang-related drug dealing activity or proof that a person has engaged or threatens to engage in anti-social behaviour, and (2) that Parliament has devised statutory schemes which conform with the requirements of a fair hearing under Article 6 under Section 34 0f the Policing and Crime Act 2009 and Part 1 of the Anti-Social Behaviour etc Act 2014.

 

RELIGIOUS BELIEFS

July 13th, 2023 by James Goudie KC in Human Rights and Public Sector Equality Duty

The freedom to (1) manifest religious belief AND (2) express views relating to that belief are essential rights in a democracy and are protected by the ECHR and the Equality Act 2010. The question on manifestation is whether there is a sufficiently close or direct nexus between an individual religious beliefs and any particular expression of views. In HIGGS v FARMOR’S SCHOOL (2023) EAT 89 the President of the EAT, from paragraph 79 in the Judgment reaffirms that in considering disciplinary action against the individual it is necessary to determine whether the reason for taking the action is (1) because of, or related to, the manifestation of beliefs, which renders the action prohibited, OR (2) because the manner of the manifestation was objectionable, which may make the action permissible. The freedom to manifest belief is not absolute. It is a qualified right. It can be limited to the extent that the limitation is prescribed by law, in pursuit of a legitimate aim, and necessary in a democratic society. A proportionate balance has to be struck between an interference with fundamental rights and the legitimate interests of others.

 

CONSERVATION OF HABITATS

July 6th, 2023 by James Goudie KC in Planning and Environmental

The Habitats Directive (notwithstanding Brexit) and domestic Regulations mandate that an appropriate assessment be undertaken before planning consent is given for a development. That is irrespective of what stage in the planning process has been reached according to domestic law. In C G Fry and Son Ltd v SoS for Levelling Up, etc (2023) EWHL 1622 (Admin) Sir Ross Cranston holds that application of Article 6(3) of the Directive and a broad and purposive approach to the interpretation of Regulations 63 and 70 of the Regulations requires the application of the assessment provisions to the discharge of conditions. The strict precautionary approach required for the whole development would be undermined if those provisions were limited to the initial, permission, stage of a multi-stage process.

 

MISUSE OF PRIVATE INFORMATION

July 6th, 2023 by James Goudie KC in Judicial Control, Liability and Litigation

BEKOE v ISLINGTON LBC (2023) EWHC 1668 (KB) is concerned with a claim against the Council that succeeded for the common law tort of misuse of the claimant’s private financial information and reasonable expectation of privacy in respect of it, and breach of his rights under Articles 5, 12, 15, 23 and 82 of the GDPR, including in relation to inadequate and delayed response to a Subject Access Request, under Article 8 of ECHR, and under the Data Protection Act 2018.

On Misuse of Private Information, the Judge concluded:-
“48. There is ample authority that financial information can be categorised as “private information” for the purposes of the tort of misuse of private information … There is therefore a reasonable expectation that this kind of information would be kept private. A reasonable person with ordinary sensibilities placed in the same position as the claimant would expect that a comprehensive snapshot of their general financial information would be kept private.”
“51. In this case, the combination of financial information relating to several bank accounts and mortgage accounts including balances with the comprehensive view it gave of Mr Bekoe’s financial situation is clearly private information. In addition, from the evidence before me, it would appear that it is not only Mr Bekoe’s private information that has been compromised but also that of his son.”
“56. …I find that the defendant did misuse private information belonging to Mr Bekoe by accessing details relating to a collection of bank accounts and mortgage accounts associated with Mr Bekoe (and others) in July 2015 without lawful authority.”

On the GDPR, the Judge found that the Council had violated the claimant’s rights under Articles 5, 12 and 15 of the GDPR.

On quantum, the Judge observed:-
“65. Compensation is available in the tort of misuse of private information on a wider basis than under the GDPR. In particular, a successful claimant is entitled to damages to compensate them for the loss or diminution of the right to control the use of their private information independently of any distress caused …”
“69. I find that … the subsequent conduct of the defendant, in this case, is sufficient to trigger aggravated damages. The way that the trial and the litigation as a whole has been conducted by the defendant has revealed a lack of respect for legal requirements related to privacy and data protection. Repeated failure to disclose key information, disclosure at the final hour, two working days before the trial, and the absence of any clear evidence to support or substantiate Defence submissions relating to alleged fraud have clearly aggravated the distress caused to the claimant. To be clear, it is not the assertion of a Defence in this case which triggers aggravated damages but rather the absolute failure to evidence it along with the continued unjustified shape shifting of the basis of the defence which continued right up until Mr Cunliffe’s final submissions at trial.
70. …I find that the aggravated nature of the damages should be wrapped up in one overall figure.”
“73. In this case, taking account of the misuse of private information, the loss of the right to control the information and the level of distress caused by the GDPR breaches along with the aggravating factors, I award an overall figure of £6,000 for damages.”