Damage is caused by an exceptional occurrence, such as the Covid-19 pandemic. The entirety of the damage is not made good. Not all victims receive aid from state resources. In Cases T-378&379/20, Ryanair v Commission, it is held that it does not follow that a measure benefitting an individual company is state aid and/or discriminatory, provided that the benefit does not overcompensate and is proportionate.
Highway Safety
March 30th, 2021 by James Goudie KC in Environment, Highways and LeisureWhen determining whether planning consent should be granted to upgrade an advertising hoarding to a digital display, not only must the residential amenity of the display be considered. Specific conditions should be addressed, in the interests of highway safety, in relation to the use of moving images and both the frequency and the speed of change of advertisements on the display. So held in Calderdale Borough Council v SoS (2021) EWHC 695 (Admin).
Proprietary Estoppel
March 30th, 2021 by James Goudie KC in Land, Goods and ServicesA claim for possession of land may be defeated by a proprietary estoppel that is satisfied by an irrevocable licence for life, even when a contract for the sale of the land had been oral. The requirements of Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 probably did not affect proprietary estoppel, especially when the relief sought was not to enforce the contract. So held by Snowden J in Howe v Gossop (2021) EWHC 637 (Ch).
Duty of Care
March 30th, 2021 by James Goudie KC in Judicial Control, Liability and LitigationIn Anchor Hanover Group v Oxfordshire County Council and Others (2021) EWHC 543 (TCC) O’Farrell J at para 59 stated principles as follows: (1) Local and other public authorities do not owe any duty of care at common law simply by exercising their statutory duties and powers; (2) The absence of a duty of care extends to advice given as part of the exercise of such duties; (3) However, a common law duty to protect from harm may arise, where the principles applicable to a private party would impose that duty; and (4) Such cases include where there is an assumption of responsibility.
GPOC: Wales
March 24th, 2021 by James Goudie KC in Decision making and ContractsNote the draft General Power of Competence (Commercial Purpose) (Conditions) (Wales) Regulations 2021, pursuant to Sections 24 and 27/28 Of the Local Government and Elections (Wales) Act 2021, requiring amongst other things authorities to prepare and approve a Business Case before using the General Power to do things for a commercial purpose/trading, together with regulatory Impact Assessment, and Welsh Government Consultation Document, for response by 11 June 2021. The General Power comes into force for principal councils on 1 November 2011 and for eligible community councils on 5 May 2022.
Duty of Candour
March 19th, 2021 by James Goudie KC in Judicial Control, Liability and LitigationIn DVP v SSHD (2021) EWHC 606 (Admin) the Divisional Court emphasised the importance of the duty of candour when making applications for judicial review. Dame Victoria Sharp P said at para 9: “The duty of candour in this context means that the claimant must disclose any relevant information or material fact which either supports or undermines his case. Material facts are those facts which it is material for a judge to know when dealing with the urgent application. The duty requires the claimant to make the court aware of the issues that are likely to arise and the possible difficulties in the application or underlying claim.” She added, at para 10, that if there is a breach of the duty an order will be set aside even if it might otherwise have been justified. See also paras 73-80.
Rough Sleepers During Covid
March 11th, 2021 by James Goudie KC in HousingR (Ncube) v Brighton & Hove City Council (2021) EWHC 578 (Admin) concerned the powers available to a unitary local authority, with both housing and social care duties and powers, to provide accommodation for rough sleepers with no recourse to public funds. Section 185 of the Housing Act 1996 renders persons from abroad not eligible for housing assistance. Freedman J’s holdings include that there was power in this case for the authority to provide temporary accommodation pursuant to the emergency power under Section 138 of the Local Government Act 1972 and/or Section 2B of the National Health Service Act 2006, and neither of these routes were a circumvention of Section 185 if the unitary was acting as social services rather than housing authority. However, Section 1 of the Localism Act 2011 could not be relied upon. That would be a circumvention of Section 185.
Companies
March 9th, 2021 by James Goudie KC in Capital Finance and CompaniesThe Duomatic principle, that anything a company’s members could do by formal resolution they could also do informally if they all assented to it, does not apply where the transaction would be ultra vires: Satyam Enterprises Ltd v Burton (2021) EWCA Civ 287.
Procurement
March 4th, 2021 by James Goudie KC in Decision making and ContractsSee Bechtel Ltd v High Speed (HS 2) Ltd (2021) EWHC 448 (TCC) on judicial oversight of procurement and challenges to the outcome of procurement challenges: paras 18-28; confidentiality in litigation concerned with procurement challenges: paras 31-39; evidence from claimant witnesses: paras 135-139; manifest error: paras 256/257; transparency, keeping records, equality of treatment, giving of reasons, proportionality: paras 79, 274-277, 281-333; limitation: paras 339/340; abnormally low tender: paras 456-468; modifications: paras 482-492; and abandonment: paras 506-508.