On systemic claims, whether a decision (to cut funding on EHCPs) gives rise to an unacceptable risk of unlawful outcomes, and on whether a strategic statutory duty (under Section 27 of the Children and Families Act 2014) to keep provision “under review” is triggered, see R (M and IR) v Waltham Forest LBC (2021) EWHC 281 (Admin).
Judicial Review and Cuts
February 15th, 2021 by James Goudie KC in Judicial Control, Liability and Litigation
TVG
February 12th, 2021 by James Goudie KC in Land, Goods and ServicesTW Logistics Ltd v Essex County Council (2021) UKSC 4 raised important issues about the law relating to Town and Village Greens under the Commons Act 2006, a much wider concept (para1) than the traditional village green, with registration having (para 2) important legal consequences. The central question on the unsuccessful appeal was whether registration in this case, under Section 15 of the Act, would have the consequence that the continuation of the landowner’s pre-existing commercial activities would be criminalised.
Mandatory Injunctions
February 12th, 2021 by James Goudie KC in Judicial Control, Liability and LitigationIn Mohammad v SSHD (2021) EWHC 240 (Admin) Chamberlain J stated principles in relation to mandatory injunctions against public authorities. They include :-
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”.