The appeal in R (Coughlan) v Minister for the Cabinet Office (2022) UKSC 11 concerned a challenge brought by Mr Coughlan to orders made by the Minister for the Cabinet Office in respect of Braintree District Council and nine other local authorities (“the Pilot Orders”). These Pilot Orders authorised schemes to temporarily change the rules set out in secondary legislation governing local elections. These schemes, which were implemented in ten local authority areas in respect of the local government elections in May 2019, each introduced a new requirement for some form of voter identification for those local elections.
Subsidy Control / State Aid
April 21st, 2022 by James Goudie KC in Capital Finance and CompaniesIN VOLOTEA v COMMISSION, Joined Cases C-331/20P and C-343/20P, Advocate General Capeta addresses, at paras 62-114 inclusive, the Market Economy Operator Principle ( the MEO ). The applicability of the MEO test is governed by the NATURE of the activities, that is by whether the public authority intervention is through an activity comparable to what could be envisaged in the market. The test is applicable to all situations in activities are performed by the authority comparable to market activities. These include when the authority acts in a way comparable to a market operator. This is decided by an objective enquiry into HOW the authority engages with undertakings on a given market, irrespective of the form and reasons for that engagement.
Privacy
April 19th, 2022 by James Goudie KC in Judicial Control, Liability and LitigationIn Underwood v Bounty (2022) EWHC 888 ( QB ) claims for breach of the Data Protection Act Principles and for privacy/misuse of private information failed. Nicklin J reiterated at para 50 in relation to the tort of misuse of private information that liability is determined using a 2 stage test: (1) whether the claimant has “a reasonable expectation” of privacy in the relevant information; and, if so (2) whether that is outweighed by “countervailing interests”.
Constitutional Principles
April 14th, 2022 by James Goudie KC in Judicial Control, Liability and LitigationIn Somerset County Council v NHS Somerset (2022) EWFC 31 the President of the Family Division reiterates two fundamental principles of constitutional law : –
Heritage Assets
April 12th, 2022 by James Goudie KC in Planning and EnvironmentalLondon Parks & Gardens Trust v Minister of State (2022) EWHC 829 (Admin) concerns whether there will be “substantial harm” to heritage assets, and consideration of the impact of a proposed development on relevant heritage assets. The “high test” is whether potential harm will be: “substantial”, rather than “less than substantial” for the purposes of the NPPF, that is a serious degree of harm to the asset’s significance. The significance of the historic asset does not have to be “drained away”. The test is “substantial harm”, not any gloss, such as “draining away”.
Exclusion Clauses
April 6th, 2022 by James Goudie KC in Decision making and ContractsIn Soteria v IBM (2022) EWCA Civ 440 the Court of Appeal holds that an exclusion clause, in a contract of sale, which purported to exclude liability, for “indirect or consequential losses, or for loss of profit, revenue or savings”, did NOT preclude the buyer from recovering expenditure that it had incurred in anticipation of the contract, but which was wasted, as a result of the supplier’s repudiation.
PSED & ETOs
April 5th, 2022 by James Goudie KC in Human Rights and Public Sector Equality DutyIn R (SHEAKH) v LAMBETH LBC (2022) EWCA Civ 457 a challenge to the authority’s discharge of the PSED failed in relation to 3 Experimental Traffic Orders relating to Low Traffic Neighbourhoods. At para 10 the. Court of Appeal emphasized 5 points: (1) Section 149 of the Equality Act 2010 does not require a substantive result; (2) Nor does it prescribe a particular procedure; (3) It does however imply a duty of reasonable enquiry; and (4) It requires a decision-maker to understand the obvious equality impacts of a decision before adopting a policy; (5) Courts should not engage in unduly legalistic investigation of the way in which an authority has assessed the impact of the decision on the equality needs. See also paras 11-18 inc for an update on the BRACKING Principles.
Protected Characteristics
April 1st, 2022 by James Goudie KC in HousingIn Biden v Waverley BC (2022) EWCA Civ 442 the Court of Appeal is concerned with sufficiency of enquiries made to determine the suitability of accommodation offered to a homeless applicant with protected characteristics of disability and gender reassignment. At para 48 Macur LJ says that the enquiries to be made are those “necessary fairly to make a decision” regarding the suitability of accommodation for the applicant. Subject to this, the “scope and scale” of the necessary inquiries to be made by a local housing authority is a matter for them. The Court should not intervene unless satisfied that no reasonable authority could have been satisfied on the basis of the inquiries made. Asplin and Coulson LJJ agreed.
HMOs – Global 100 Ltd v Jimenez (2022) UKUT 50 (LC)
March 29th, 2022 by James Goudie KC in HousingIn Global 100 Ltd v Jimenez (2022) UKUT 50 (LC), a case on “property guardians” and the definition of Houses in Multiple Occupation in Section 254(2) of the Housing Act 2004, the Upper Tribunal says, at para 15, that: “Effective regulation and action by local housing authorities to reduce risks to the health and wellbeing of residents of repurposed or converted living accommodation is as an important an objective as it has ever been.” It is “important” that the statutory definition of HMO is not interpreted so narrowly as to frustrate the achievement of the statutory purpose. See also para 46.
Land Disposal – R (Day) v Shropshire Council
March 29th, 2022 by James Goudie KC in Land, Goods and ServicesThe Supreme Court has given permission to appeal in R (Day) v Shropshire Council about a dispute over what happens when a local authority disposes of land which is subject to a statutory trust for public recreational services without complying with the relevant statutory requirements.