The 1246 pages Brexit deal has some procurement rules. The UK’s initial offer was to reaffirm its existing commitments in the WTO’s Government Procurement Agreement. The eventual trade deal builds on the GPA rules and extends the coverage of sectors beyond the GPA, including education. The deal sets out basic rules on competitive tendering that are simpler and less prescriptive than EU Directives, and includes a requirement for there to be an impartial authority to assess challenges to contract awards.
Unjust Enrichment
December 24th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationSurrey County Council v NHS Lincolnshire CGC (2020) EWHC 3550 (QB) concerns a restitution claim by a local authority against an NHS body in the context of healthcare and community care services. Issues include whether the claim is a public law claim that should be brought by judicial review or can be brought as a private law claim( paras 72-84), limitation ( paras 85-91), a novel category of unjust enrichment ( paras 92-121), and change of position defence ( paras 122-129).
PSED
December 24th, 2020 by James Goudie KC in Human Rights and Public Sector Equality DutyThe PSED applies to all aspects of a local authority’s housing function. This includes decisions to commence, pursue and enforce possession proceedings. However, it is held in Taylor v Slough BC (2020) EWHC 3520 (Ch) at paras 24-26, 29-30 and 33-43, that a breach of the PSED at an early stage of individual possession proceedings is capable of being cured by subsequent full compliance.
Land Subject to Trust
December 23rd, 2020 by James Goudie KC in Land, Goods and ServicesLocal authority open space land is held for the purposes of public recreation, public access and public enjoyment pursuant to the Public Health Act 1875 and the Open Spaces Act 1906. The land is held subject to a statutory trust for those purposes. It is not however a trust in the usual private law sense. The land and the trust are inseparable.
ECHR Article 14
December 23rd, 2020 by James Goudie KC in Human Rights and Public Sector Equality DutySevere disability is a “ status” for Article 14 purposes. They can be compared to disabled people for discrimination purposes. So held in R (SH) v Norfolk County Council (2020) EWHC 3436 ( Admin).
ETOs
December 15th, 2020 by James Goudie KC in Environment, Highways and LeisureThe validity of a temporary Experimental Traffic Order, restricting access through a London street to zero omission vehicles, was upheld Tomkins v City of London (2020) EWHC 3357 (Admin). It was found that there had been no duty to carry out a non-statutory consultation. There was no legitimate expectation to that effect. However, declarations were granted in relation to failings to comply with procedural requirements and statutory requirements in relation to statement of reasons.
Misconduct
December 4th, 2020 by James Goudie KC in StandardsA 118 page Law Commission Report, No. 397, with 22 Recommendations, recommends substantive and procedural reform of the common law offence of misconduct in public office, which operates in parallel with the tort of misfeasance in public office. The Report proposes two replacement offences, not to be applicable to the provision of education and health services. They are “ corruption in public office”, with a test of what a reasonable person will think is “ seriously improper”; and “ breach of duty in public office”, to prevent death or serious injury. The Report also recommends a statutory list, to be capable of amendment by SI, of positions that constitute “ public office”, to which a functional test would be applied.
Liability for Accident in Public Park
December 4th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationIn Lewis v Wandsworth LBC (2020) EWHC 3205 (QB) it is held that the local authority had been under no legal duty to warn those using a path in a public park that a game of cricket with a hard ball was in progress and that the boundary of the cricket pitch was alongside the path. Bolton v Stone (1951) AC 850 was considered. Reasonable foreseeability of an accident is not sufficient to found liability. The Court has to consider not only the potential seriousness of an accident but also the chances of an accident happening and the measures which could be taken to minimise or avoid an accident.
Consultation
December 3rd, 2020 by James Goudie KC in Decision making and ContractsIn R ( MP ) v SoS for Health and Social Care (2020) EWCA Civ 1634, dismissing an appeal from Lewis J, as he then was, the Court of Appeal observed :-