The issue in Matthew v Selman (2021) UKSC 19 was whether, where a cause of action accrues at, or on the expiry of the midnight hour at the end of a day, the following day counts towards the calculation of the limitation period. The Supreme Court holds that, in a midnight deadline case, such as an action brought in tort, contract or breach of trust, subject to respectively Sections 2, 5 and 21 of the Limitation Act 1980, there is a complete undivided day following the expiry of the deadline, which should be included when calculating the limitation period. This is different from the situation where a cause of action accrues part-way through a day, and the general rule excludes that day for limitation purposes.
Calculation of Limitation Period
May 21st, 2021 by James Goudie KC in Judicial Control, Liability and Litigation
Green Belt
May 20th, 2021 by James Goudie KC in Planning and EnvironmentalIn Sefton MBC v SoS (2021) EWHC 1082 (;Admin) the Court interpreted paras 143 and 144 of the NPPF. Read together, they emphasised the seriousness of harm to the green belt. That is to ensure that the decision-maker has in mind the nature of the “very special circumstances” requirement before development is approved. They do not however mandate a mathematical exercise in relation to each element of harm. There is a single exercise of planning judgment to assess whether there are very special circumstances which justify the grant of planning permission notwithstanding the particular importance of the green belt.
Director Duties
May 19th, 2021 by James Goudie KC in Capital Finance and CompaniesA fiduciary, such as a company director, must not act in a position where his interest and his duty conflict or may possibly conflict. An exception is when there is fully informed consent, the burden of proving which is upon the fiduciary. As to informed consent, including implied consent, see John Reader v Spie Ltd (2021) EWHC 1221 (QB), in the context of an enhanced bonus on a TUPE transfer.
Child Protection
May 19th, 2021 by James Goudie KC in Human Rights and Public Sector Equality DutyEven in relation to child protection and safeguarding,, the European Convention of Human Rights does not give rise to any exception to the immunity of members of a diplomatic mission where their children are concerned. Diplomatic privilege limits what a local authority can do and prevents a Court from acting. So held in Barnet LBC v AG (2021) EWHC 1253 (Fam) by a Divisional Court.
Neighbourhood Development Plans and Orders
May 14th, 2021 by James Goudie KC in Planning and EnvironmentalIn Fylde Coast Farms v Fylde BC (2021) UKSC 18 the Supreme Court considers administrative processes comprising a series of successive steps, seven in the case of the above. The challenge under Section 61N of TCPA 1990 was out of time.
Liability for Rates
May 14th, 2021 by James Goudie KC in Council Tax and RatesHurstwood Properties v Rossendale BC (2021) UKSC 16 relates to the attempted avoidance of liabilities for business rates on unoccupied properties. The Supreme Court concludes (para 49) that the persons entitled to possession of an unoccupied property on whom the liability for rates is imposed does not encompass a company “which has no real or practical ability to exercise its legal right to possession” and “:on which that legal right has been conferred for no purpose other than the avoidance of liability for rates.”
Public Access to Meetings
May 4th, 2021 by James Goudie KC in Decision making and ContractsLast week as already noted in this Bulletin a Divisional Court held that a meeting under the Local Government Act 1972 must take place at a single, specified geographical location, that attending a meeting involves physically going to it, and that being present at such a meeting involves physical presence at the location. This week the Court gives a further Judgment, (2021) EWHC 1145 (Admin), in the same case, on public access to meetings which are required to be held in public or open to the public. The Court holds, at para 6, that members of the public must be admitted in person to the place where the meeting is being held, and, at para 8, that the mode by which the public is to have access is by physical attendance at the meeting.
Remote Meetings
April 28th, 2021 by James Goudie KC in Decision making and ContractsIn Hertfordshire County Council v SoS (2021) EWHC 1093 (;Admin ) a Divisional Court holds, at para 89, that primary legislation would be required to allow local authority meetings under the Local Government Act 1972 to take place “remotely”. Such meetings must take place in a (1) single, (2) specified (3) geographical location. Attending a meeting at such a location means “physically going to it”. Being “present” at such a meeting involves “physical presence” at “that” location.
The decision whether to allow some or all local authority meetings to be conducted remotely, and, if so, how, is a matter for Parliament, not the Courts: para 90.
Protected Species
April 27th, 2021 by James Goudie KC in Planning and EnvironmentalThere are protected species under Regulation 42 of and Schedule 2 to the Conservation of Habits and Species Regulations 2017. Under Regulation 43 it is an offence deliberately to disturb, damage or destroy a breeding site or resting place of any wild animal of such a species, unless there is a derogation licence. By Regulation 55(9) such a licence cannot be granted unless the licensing body is satisfied that there is no satisfactory alternative and that the action authorised will not be detrimental to the maintenance of the species concerned at a favourable conservation status at their natural range. In Kier v Natural England (2021) EWHC 1059 ( Admin ) Holgate J said : (1) the word “ detrimental” is all of a piece with the precautionary principle : para 42; (2) the judgment required involves consideration not just of the impact of the activities to be authorised, but also the mitigation and compensation measures to be secured by the licence : ibid; (3) the Court affords an enhanced margin of appreciation to a judgment of a scientific expert deciding issues of the kind raised: para 43. Holgate J also summarised, at para 44, the principles determining when fresh and expert evidence may be received in proceedings for judicial review, at para 45, the approach which should be taken to the grant of an injunction, and, at para 46,:how Decision Letters of Planning Inspectors are to be read.
AUDIT
April 23rd, 2021 by James Goudie KC in Non Judicial ControlIn Moss v Kingston RLBC (2021) EWHC 1032 ( Admin ) Thornton J stated that (1) a public’s right to inspect a local authority’s accounts is a long standing right : para 61; (2) the statutory right of inspection does not lie in policies of transparency and openness, but in financial and democratic accountability of public authorities for the use of public money and the conduct of public business : para 62; (3) The main purposes of the rights to inspect, question the auditor and object to the accounts are to enable electors and other persons interested to assist the auditor in his audit, in advance of its completion : para 63; (4) The auditor must satisfy himself that the authority has made proper arrangements for the 3Es, economy, efficiency and effectiveness : para 64; (5) The right of inspection is subject to the gateways that a sufficient interest must be demonstrated and it must be the right time in the audit timetable : para 67; .and (6) The potential exemptions from the right to inspect are limited and do not include the audited body’s time or cost of compliance : paras 69-76 inc.