Numerous statutory powers are expressed in terms of what is “ expedient “ or “ necessary or expedient “. What is meant by “ expedient”? The use of the word “ expedient” suggests that “ a broad balance or judgment is to be made by the decision-maker”. So said Lieven J at para 43 in Open Spaces Society v SoS for DEFRA (2020) EWHC 1085 ( Admin ), a case on diversion of a public footpath, in accordance with Section 119 of the Highways Act 1980.
State Aid
May 13th, 2020 by James Goudie KC in Capital Finance and CompaniesCase T-8/18, easy jet Airline Co Ltd v EU Commission, General Court Judgment, about airports in Sardinia, addresses a range of features of State Aid law, including state resources, selective advantage, distortion of competition, affecting trade between member states, and compatibility with the internal market, and, from para 169, especially at paras 185, 200-203, 212 and 218, the Market Economy Operator Principle.
Interim Injunctions
May 12th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationA School’s appeal against the refusal of an interim injunction was dismissed in R ( Governing Body of X ) v OFSTED (2020) EWCA Civ 594. The injunction sought was to restrain OFSTED from publishing a Report. The Report graded the School as inadequate. The Court of Appeal addressed the approach to interim injunctions in public law proceedings.
Ultra Vires
May 7th, 2020 by James Goudie KC in Decision making and ContractsOn the application of the ultra vires doctrine to contracts with public bodies, see SFM v Christ the King College and Isle of Wight Council (2020) EWHC 1118 (Comm). The Judge held that the contract in question was a finance lease rather than an operating lease, I.e. a form of borrowing, and beyond the College’s capacity and ultra vires.
Disclosure
May 6th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationIt is fundamental to disclosure obligations in litigation that it must not be the client who makes the selection of which documents are relevant and disclosable. That is the responsibility of the solicitor.
Policies and Consistency
May 4th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationWhen there is a statutory discretion is there a requirement to have and publish a policy on the exercise of that discretion? No, says the Northern Ireland Court of Appeal in the context of the discretion of the Secretary of State for Northern Ireland, under the Northern Ireland Act 1998, implementing the Belfast Agreement, to hold a border poll : Application by Raymond McCord for Judicial Review (2020) NICA 23. The case is of general interest on policies, on the rule of law, and on general administrative law principles of consistency, equal treatment, transparency and accountability.
Habitats
May 1st, 2020 by James Goudie KC in Planning and EnvironmentalIn Case C-254/19, Friends of the Irish Environment v Irish Planning Board, Advocate-General Kokott has on 30 April 2020 delivered her Opinion in relation to the extension of a development consent for the construction of a liquefied natural gas regasification terminal next to two Special Areas of Conservation. The consent was for 10 years. The works had not started. The extension would be for a further 5 years. The primary question was whether the extension was a plan or project within Article 6 of the Habitats Directive. Yes, says the A-G. Therefore it is subject to an appropriate assessment of the implications for wild flora and fauna.
Remote Hearings
May 1st, 2020 by James Goudie KC in Judicial Control, Liability and LitigationThree Court of Appeal Judgments on one day, from an identically constituted Court, on local authorities and remote coronavirus hearings. L (Adoption) (2020) EWCA Civ 577 on covert sibling tests and ECHR Article 8. A (Children) (2020) EWCA Civ 583 providing general guidance. B (Children) (2020) EWCA Civ 584 on procedural principles.