The commencement of proceedings challenging the procurement of a contract brings into effect an automatic stay upon entering into the contract. Should the Court lift the stay? If there is a serious issue to be tried, and there is doubt as to the adequacy of damages for either of the parties, the issue turns on balance of convenience. In Draeger v London Fire Commissioner (2021) EWHC 2221 (TCC) O’Farrell J, at para 48, states that the balance of convenience test requires the Court to consider all the circumstances of the case. The question is what course of action is likely to carry the least risk of injustice. She restates the factors: (1) how long might the suspension have to be kept in force if an expedited trial could be ordered; (2) the public interest; and (3) the interests of all parties, including the successful bidder. If these factors do not point in one direction then the prudent course will usually be to lift the suspension and allow the contract to be entered into.
Flexible Tenancies
August 9th, 2021 by James Goudie KC in HousingA local housing authority has no power or discretion to accept a request for a review of their proposal not to grant another tenancy on the expiry of the fixed-term of the tenant’s existing flexible tenancy, if that request is made more than 21 days after the service of a notice pursuant to Section 107D(3) of the Housing Act 1985; but when there can be a review the underlying merits may be relevant. So held by Cavanagh J in R (Kalonga) v Croydon LBC (2021) EWHC 2174 (Admin).
Legal Professional Privilege
August 5th, 2021 by James Goudie KC in Judicial Control, Liability and LitigationIn assessing a FoIA request the in-built “significant weight” to be afforded to LPP is something to be considered in any event. It is not necessary for the party claiming LPP to demonstrate any specific prejudice or harm from the specific disclosure of the documents in question, or to establish either that Council officials would be inhibited from seeking advice if disclosure were made in the case or that advisers would be less likely to provide frank advice. Significant weight needs to be given to the public interest in maintaining LPP. This does not mean that the LPP exemption is absolute. All will depend on the public interest factors weighed in the balance. Disclosure is always a possibility which depends on public interest factors which are not in the control of decision-makers and their advisers, but an authority will most often be entitled to obtain legal advice on an issue and to rely on LPP to withhold it even when a request is made under FoIA. That is because of the built-in public interest in maintaining LPP. See FTT at paragraphs 31-35 inclusive in Murray-Smith v Information Commissioner, EA/2021/0039V, 4 August 2021.
ECHR
August 4th, 2021 by James Goudie KC in Human Rights and Public Sector Equality DutyProtocol 15 to the ECHR has entered into force. It amends the Preamble to the ECHR, to include references to (1) the subsidiarity principle and (2) the margin of appreciation doctrine. The Protocol also makes procedural changes.
Policy Challenges
August 2nd, 2021 by James Goudie KC in Judicial Control, Liability and LitigationIn R (A) v SSHD (2021) UKSC 13 the Supreme Court sets out the test for assessing the lawfulness of a policy. That is whether the policy authorises or approves unlawful conduct by those to whom it is directed. There is no requirement for a policy to constitute a comprehensive statement of the law. It may be sufficient to identify broad categories of cases. It is not necessary to Eli I ate every potential legal certainty arising from the detailed application of the guidance. What matters is that the content is not misleading.
The Supreme Court also states that there is no free-standing ground of challenge of unacceptable risk of illegality.
Tendering Process
July 28th, 2021 by James Goudie KC in Decision making and ContractsIn Church v Information Commissioner, EA/2020/0187V, the FTT (GRC) holds that on a Request for Information about a local authority’s tendering process, for the provision of a new School, the exemptions for personal information and commercial confidentiality in FoIA did not entitle the authority to withhold (1) the names of the members of its Selection Panel, (2) the Applications made by the rival bidders, (3) the scores awarded to the winning bidder, or (4) documents detailing the Selection Panel’s assessment of the winning bid.