In Mohammad v SSHD (2021) EWHC 240 (Admin) Chamberlain J stated principles in relation to mandatory injunctions against public authorities. They include :-
Mandatory Injunctions
February 12th, 2021 by James Goudie KC in Judicial Control, Liability and Litigation
Company Directors
February 9th, 2021 by James Goudie KC in Capital Finance and CompaniesOn disclosure by the director of a company of a conflict of interest, see Fairford Water Ski Club Ltd v Cohoon (2021) EWCA Civ 143. The disclosable interest may be of any kind, direct or indirect : para 43. What is then required is a clear declaration of the interest : para 45.
Legitimate Expectation
January 26th, 2021 by James Goudie KC in Decision making and ContractsIn order for a practice to give rise to a legitimate expectation the practice must be tantamount to a clear and unambiguous representation. It must be so unambiguous, so widespread, so well-established and so well-recognised as to carry within it a commitment to a relevant group of treatment in accordance with it. It must be impliedly tantamount to a promise and the practice must be consistent. So reaffirmed by Fordham J in Havant Biogas Ltd v Gas and Electricity Markets Authority (2021) EWHC 84 (Admin) at para 60.
ECHR Discrimination
January 26th, 2021 by James Goudie KC in Human Rights and Public Sector Equality DutyThe ambit of an ECHR right is wider than its “ scope”. Treatment will fall within “ scope “ if it potentially infringes an ECHR right. In an Article 14 discrimination case however the treatment will fall within the “ambit” of another Article provided that the treatment merely has a more than tenuous link with the core values protected by the other Article(s). This is a less exacting test. So reaffirmed by Bourne J in R (IJ) v SSHD (2020):EWHC 3487 ( Admin) at para 82.
COVID-19 and Contracts
January 25th, 2021 by James Goudie KC in Decision making and ContractsWestminster City Council v Sports and Leisure Management Ltd (2021):EWHC 98(TCC) concerns the contractual allocation of risk in respect of losses under a leisure services contract arising from the covid-19 pandemic lockdowns. There was for the purposes of the contract a “ specific change in law”. The issue was as to to the consequences. Kerr j gave a detailed Judgment and granted declarations.
Miscellaneous
January 20th, 2021 by James Goudie KC in Decision making and ContractsSee United Trade Action Group v TfL (2021) EWHC 72 ( Admin ), a case concerned with taxis as a form of public transport, at paras 94-99 and 165/166 on the exercise of traffic management powers, at paras 102-107 on relevant considerations and policies, at paras 175-177 on the PSED, at paras 197-207 on ECHR Art1/1, and at paras 219-226 and 249-251 on legitimate expectation.
Statutory Interpretation
January 13th, 2021 by James Goudie KC in Judicial Control, Liability and LitigationIn Privacy International v Investigatory Powers Tribunal (2021) EWHC 27 ( Admin ) Bean LJ stated relevant principles of statutory interpretation as follows :-
Without Prejudice
January 11th, 2021 by James Goudie KC in Judicial Control, Liability and LitigationMotorola v Hytera (2021) CA Civ 11 concerned when without prejudice privilege is displaced by the “unambiguous impropriety” exception. Males LJ reviewed the authorities at paras 24-56 inclusive, and states at para 57: “From this review of the cases I would conclude that the courts have consistently emphasised the importance of allowing parties to speak freely in the course of settlement negotiations, have jealously guarded any incursion into or erosion of the without prejudice rule, and have carefully scrutinised evidence which is asserted to justify an exception to the rule.” Although the “unambiguous impropriety” exception has been recognised, the cases in which it has been applied have been “truly exceptional”.
State Aid
December 29th, 2020 by James Goudie KC in Capital Finance and CompaniesThe Brexit deal agreement is accompanied by Declarations. These include a non-binding Joint Declaration of the UK and the EU on Subsidy Control Policies. These are described as “ guidance”. They may be “ taken into consideration” in the respective systems of subsidy controls.
The guidance is concerned with subsidies for (1) the development of disadvantaged and deprived areas or regions, (2) transport, and (3) research and development.
When determining the amount of subsidy for such areas, there may be taken into account (1) the socio-economic situation of the area, (2) the size of the beneficiary, and (3) the size of the investment project. However, (1) the beneficiary should provide its own “ substantial contribution” to the investment costs, and (2) the subsidy should not have as its “ main purpose or effect” to incentivise the beneficiary to transfer the same or a similar activity across borders.
Transport covers (1) airports, (2) roads, and (3) ports. Subsidies to road infrastructure projects may be granted if they are not designed “ selectively”, but provide benefits to society at large. It must be “ ensured” that open access to infrastructure is available to “ all” users on a “ on-discriminatory “ basis.
State Aid
December 29th, 2020 by James Goudie KC in Capital Finance and CompaniesThe UK will continue to have after 1 January 2021 a subsidy control system that will be legally enforceable. The subsidy provisions in the 1246 pages Brexit deal are however weaker than the EU’s initial proposals. These had been for the UK to align with EU state aid law. They are nonetheless stronger than the provisions of the EU’s free trade agreements with Canada and Japan. Indeed, many of the definitions and principles in the Brexit deal are similar to the EU State Aid system. There are features that the UK’s subsidy control system must include.
The Brexit deal sets out a definition of a subsidy, basically selective advantage, a list of common principles, and exemptions from prohibitions. The deal also addresses enforcement. There will have to be a Court or Tribunal for subsidy cases, and specified common remedies for breach, including recovery of a payment.