Article 7 of the ECHR relates to no punishment without law. It provides that no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence at the time that it was committed. In Norman v UK (2021) ECHR 601 the ECtHR holds that the common law offence of misconduct in public office carrying a maximum sentence of life imprisonment and not defined in statute, and subject to a Law Commission recommendation for abolition, does not infringe Article 7.
Misconduct in Public Office
July 7th, 2021 by James Goudie KC in Human Rights and Public Sector Equality Duty
Unlawful Means Tort
July 6th, 2021 by James Goudie KC in Judicial Control, Liability and LitigationIn SoS for Health v Servier (2021) UKSC 24 a seven Justices Supreme Court holds that it is a requirement of the unlawful means economic tort that the unlawful means must have affected the third party’s freedom to deal with the claimant, the dealing requirement.
Subsidy Control
July 1st, 2021 by James Goudie KC in Capital Finance and CompaniesSubsidy Control replaced State Aid six months ago. A Subsidy Control Bill has now been published.
Injunctions
July 1st, 2021 by James Goudie KC in Judicial Control, Liability and LitigationValbonne Estates v Cityvalue Estates (2021) EWCA Civ 973 concerns the proper exercise of the Court’s discretion to continue an interim injunction or to re-grant it notwithstanding serious non-disclosure by the applicant when seeking the interim injunction on a without notice basis. At para 47 and following the Court of Appeal sets out the relevant principles. There are no hard and fast rules which must be applied. The Court should take into account all relevant circumstances.
Where there are breaches of the duty of full and fair disclosure on a without notice application, the general rule is that the order should be discharged and the Court should refuse to re-grant it. That is the starting point, especially if the non-disclosure/inaccurate representations are neither inadvertent nor accidental.
Certificate of Lawful Use or Development
July 1st, 2021 by James Goudie KC in Planning and EnvironmentalIn McGaw v Welsh Ministers (2021) EWCA Civ 976 the Court of Appeal states that the General Permitted Development Order exists in order to relieve developers of the regulatory burden of applying for planning permission in categories of case defined in such a way that it can be seen that such permission ought to be granted, and to relieve planning authorities of the burden of dealing with such applications. The classes of cases to which the GPD Order applies are defined so as to set out the parameters for the grant of general permissions while protecting various concerns relevant to planning concerns, including height restrictions and visual amenity and restrictions to limit what can be seen from the highway. The Court of Appeal says, at para 17, that the GDP Order should be approached in the light of its statutory purpose.
Both the words that set out what is permitted and those that limit the scope of the permission should be read in a “broad and common sense way” according to the “ordinary meaning” of the language used.
Environmental Information
June 30th, 2021 by James Goudie KC in Environment, Highways and LeisureThe operator of Heathrow Airport is not a public authority for the purposes of the Environmental Information Regulations. So held by the FTT in Heathrow Airport Ltd v Information Commissioner, EA/2020/0101, Judgment on 18;June 2021. Although the Airport had operated as a function of the State prior to its privatisation, and is closely regulated by the Civil Aviation Authority, it is a commercial enterprise. It competes with similar businesses. It is not akin to the provision of a public service.
PSED
June 28th, 2021 by James Goudie KC in Human Rights and Public Sector Equality DutyR ( SHEAKH ) v LAMBETH LBC (2021) EWHC 1745 (Admin) concerns an unsuccessful challenge to Orders under the Road Traffic Regulation Act 1984 ( the ROTRA ) restricting the movement of traffic within Low Traffic Neighbourhoods (LTNs). The challenges that failed included that the Orders were not experimental, Tameside, failure to have regard to matters set out in Section 122 of the ROTRA, inadequate consultation, and the PSED. AS regards the PSED, Kerr J said : the function being exercised was the function of initiating an experiment, not introducing the LTNs on a permanent basis : para 145; the duty is to have regard to the need to fulfil the ambitions set out in Section 149 of the Equality Act 2010 to eliminate unlawful discrimination, advance equality of opportunity and foster good relations between the relevant groups : para 146; if the equality objectives are properly considered and put in the balance, it is for the decision-maker to decide how much weight they should carry : para 147; the duty is not a duty to carry out an assessment, assessment is the tool used to create the evidence base to show performance of the duty, it is not the performance of the duty itself, there is no necessary breach of the duty where no formal assessment has been done : para 148; there is noting in section 149 which prevents, in an appropriate case, performance of the duty by means of a conscious decision to undertake equality assessment on a “rolling” basis : para 163; the more “evolutionary” the function being exercised, the more readily a rolling assessment may be justified : para 164; where the function being exercised is to initiate an experiment, as in the case of a decision to make an Experimental Traffic Order, it may or may not be sufficient, depending upon the facts, to conduct the equality impact assessment on a rolling basis : para 165.
Economic Loss
June 18th, 2021 by James Goudie KC in Judicial Control, Liability and LitigationManchester Building Society v Grant Thornton (2021) UKSC 20 is concerned with the scope of the duty of care in negligence in relation to the recovery of damages for the economic loss, and the liability of professional advisers. One looks to see what risk the duty was supposed to guard against and then look to see whether the loss suffered represented the fruition of that risk. The focus should be on identifying the purpose to be served by the duty of care assumed by the advisers.
Interim Relief
June 11th, 2021 by James Goudie KC in Human Rights and Public Sector Equality DutyIn Steer v Stormsure Ltd (2021) EWCA CIv 887 the Court of Appeal holds that the lack of provision in the Equality Act 2010 for interim relief in discrimination or victimisation claims, as compared with dismissed whistleblower claims, does not breach Article 14 of the ECHR in conjunction with any of Article 6 on procedural fairness (paras 31-33), Article 8 or Article A1P1. The status of being a litigant in a particular type of case is not a protected status: paras 36-42.