In R ( NOLSON ) v STEVENAGE BOROUGH COUNCIL (2020) EWCA 379, at paragraph 18, the Court of Appeal, per Hickinbottom LJ, gives important guidance on applications, including not least applications for interim relief.
Adjudication and Fraud
March 19th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationIn PBS v BESTER (2020) EWCA 404 Coulson LJ at paragraph 23 stated principles with respect to enforcement of compulsory adjudication awards in the construction industry when there are allegations of fraud, as follows : (1) If the allegations of fraud were made, or could and should have been made, in the adjudication, that cannot subsequently amount to a reason not to enforce the decision; (2) If on the other hand (I) the adjudicator’ s decision was arguably procured by fraud or (I) where the material relied upon by the adjudicator is shown to be both (a) material and (b) arguably fraudulent and (iii) the allegation of fraud could not have been raised in the adjudication, such allegations can be a proper ground for resisting enforcement.
Rateable Occupation
March 19th, 2020 by James Goudie KC in Council Tax and RatesATOS v FYLDE BOROUGH COUNCIL (2020) EWHC 647 ( QB ) is concerned with the liability, or rather non-liability, of persons for non-domestic rates in circumstances where the person said to be liable does not occupy the entirety of the hereditament in the relevant rating list, and part is let to others. Saini J reviewed the statutory framework and case law at paras 23-68 and gave his main conclusion at paras 69-75 : essentially rateable occupation has to be exclusive occupation. The Judge approved Ryde on Rating : “ if the whole building is entered in the rating list as one hereditament, no one tenant is liable for the rate of the whole, because he is not the occupier of the whole, nor can he be compelled to pay the rate on the part he occupies…”
Confidentiality
March 19th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationOn “ Confidentiality Rings” in civil litigation, see INFDERATION Ltd v GOOGLE LLC (2020) EWHC 657(Ch) at paras 27-47 inc.
Urgent Contracts
March 19th, 2020 by James Goudie KC in Decision making and ContractsA Procurement Policy Note has been published on 18 March 2020 on responding to COVID -19, and in particular, but not only, using the urgency derogation in PCR Reg 32(2)(c) and other procurement Regs : “designed to deal with this sort of situation”; “not something that was foreseeable”. The Note emphasises that in order to use this exemption the contracting authority must be able to demonstrate genuine reasons for extreme urgency and satisfy other conditions, and keep a written record of the justification and achieve value for money.
Judicial Review Costs
March 16th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationIn R (Parreen) v Redbridge LBC (2020) EWCA Civ 194 the Court of Appeal has reiterated the principles that should be applied when dealing with the costs of judicial review proceedings which have been withdrawn or settled prior to a full hearing in circumstances where the claimant has obtained all or some of the relief claimed. It is necessary to identify the “successful party”, but success consists not only in obtaining the relief sought, but also obtaining it earlier than would otherwise have been the case. The Court of Appeal also reiterated however that investigation of such matters has to be kept within reasonable and proportionate bounds; and that the fact that the claimant obtained the relief sought did not necessarily mean that the proceedings had caused or contributed to that outcome.
Foster Family Life
March 16th, 2020 by James Goudie KC in Human Rights and Public Sector Equality DutyThe test for establishing family life for the purposes of ECHR Article 8 within the foster care context is no different to that for birth families. So stated Au v SSHD (2020) EWCA Civ 318.
Public Works Loan Board (“PWLB”)
March 16th, 2020 by James Goudie KC in Capital Finance and CompaniesHM Treasury has published a consultation document on “Future Lending Terms” fpr the PWLB. The Foreword states (emphasis added):-
Business Rates
March 16th, 2020 by James Goudie KC in Council Tax and RatesThe 11 March 2020 Budget documents include Terms of Reference for a “fundamental” Review of the Business Rates System, setting out the Review’s objectives, scope and governance, with a view to the Review reporting in Autumn 2020. An objective is to improve the current system, and to consider more fundamental changes in the medium-to-long term, including alternatives to business rates. The scope will not consider the overall level of funding for local government.
Internal Communications
March 12th, 2020 by James Goudie KC in Decision making and ContractsRegulation 12(4)(e) of the Environmental Information Regulations provides that a public authority may refuse to disclose information to the extent that the request involves the disclosure of “internal communications”. Regulation 12(5)(f) provides that a public authority may refuse to disclose information to the extent that its disclosure would “adversely affect the interests of the person who provided that information” in specified circumstances. “Would adversely affect” should be interpreted in the sense that the “adverse effect” has to be identified, and the disclosure “would” have that adverse effect, not “could” or “might”. If the conditions of 12(4)(e) and/or (5)(f) are met, then the information must be disclosed only to the extent that, in all the circumstances, the public interest in maintaining the exception outweighs the public interest in disclosure. These conditions have been considered by the FTT in Middlesborough Council v ICO, EA/2019/0108.