In Husson v SSHD (2020) EWCA Civ 329 Simler LJ stated, at paragraph 42, that:-
Actionable Duty of Care
March 12th, 2020 by James Goudie KC in Judicial Control, Liability and Litigation
Expert Witnesses
March 12th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationThe duties and conduct of expert witnesses are the subject matter of Blackpool Borough Council v Volkerfitzpatrick Ltd (2020) EWHC 387 (TCC). In a construction dispute, concerned with design and build contracts for a new tram depot, the defendant contractor applied for orders that (a) the claimant should not be permitted to rely on the evidence of two of its experts (D and C) on the basis that they had shown a lack of independence and (b) the claimant’s claims should be struck out on the basis that without such expert evidence they were bound to fail. The Judge held that D and C had not been guilty of any wrongdoing, and dismissed the application.
Interim Relief
March 9th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationThe Court of Appeal in dismissing the appeal in Canada Goose v Persons Unknown (2020) EWCA Civ 303 has enunciated procedural guidelines applicable to proceedings for interim relief in protestor cases against “Persons Unknown”, at paragraph 82 of the Judgment, as follows:-
Principle in ex parte James
March 6th, 2020 by James Goudie KC in Decision making and ContractsThe celebrated decision of the House of Lords in R v Tower Hamlets LBC, ex parte Chetnik Developments Limited (1988) AC 858 is justifiably well known for its robust affirmation of the principle that there is no such thing in public law as an unlimited or unrestricted discretion. Linked to this was the endorsement, at pages 874H-877Q, of the principle in Ex parte James (1874) L.R.9 Ch. App. 609 that a public body must act in a “straightforward”, “high-minded”, and “high-principled” way.
The principle in Ex parte James has now been considered by the Court of Appeal in Lehman Brothers Austria Ltd (In Liquidation) v Macnamara (2020) EWCA Civ 321. The threshold test for the invocation of the principle, on an objective basis, is “fairness”, procedural and substantive, rather than unconscionability, on the particular facts of a case; and the principle applies to reliance upon legal rights, including contractual rights: paragraphs 38, 64-69 inclusive, 87-90 inclusive, and 105/106.
Legal Professional Privilege (“LPP”)
March 5th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationIn Addlesee v Dentons Europe [2020] EWHC 238 (Ch) concerns the iniquity exception to LPP. The applicable legal principles were summarised (paragraphs 28-35 inclusive) as follows:-
(1) LPP does not attach to communications between lawyer and client if the lawyer is instructed for the purpose of furthering crime, fraud or iniquity;
(2) Instructions given for such a purpose fall outside the ordinary scope of a lawyer/client relationship, and are an abuse of that relationship;
(3) This exception from LPP may apply equally to communications after the wrongdoing itself, where the lawyer is still instructed for the purpose of furthering the wrongdoing, for example by concealing the wrongdoing or its proceeds;
(4) The exception applies whether or not the solicitor is aware of the wrongful purpose; and
(5) The exception applies where the client is unaware of the wrongful purpose, if the client is being used as an unwitting tool or mechanism by a third party to further the third party’s fraud.
The Court addressed issues as to the burden and standard of proof.
Business Improvement District
March 5th, 2020 by James Goudie KC in Council Tax and RatesIn McGrath v Camden LBC (2020) EWHC 369 (Admin) a Divisional Court held that the Council’s omission to serve on ratepayers information specified by Schedule 4 to the Business Improvement Districts (England) Regulations 2004, S.I. 2004/2443, made under Section 49 of the Local Government Act 2003, at the same time as serving a demand notice for payment of a BID levy in Hampstead Village did not render the demand invalid. The statutory liability to pay the levy is not qualified by reference to any legislative requirement other than service of a demand notice. Moreover, there is a distinction in Schedule 4 between what is required to be “contained in” a demand notice and what is required to be “supplied with” a demand notice.
Abandonment of Contract
March 5th, 2020 by James Goudie KC in Decision making and ContractsRyhurst Ltd v Whittington Health Trust (2020) EWHC 448 (TCC) is a procurement case in which the Claimant challenged a decision by the Trust to abandon a procurement exercise for a 10 year strategic estates partnership contract, in circumstances where the Trust had previously made a decision to award this contract to the Claimant. The challenge failed.
Misfeasance in public office
March 5th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationYoung v Chief Constable of Warwickshire (2020) EWHC 308 (QB) recites the applicable principles in relation to the tort (and crime) of misfeasance in public office. There are four ingredients: (1) the defendant must be a public officer; (2) the conduct complained of must be in the exercise of public functions; (3) malice; and (4) damage.
Malice, the requisite state of mind, is either “targeted malice” or “untargeted malice”.
For “targeted malice”, the conduct is specifically intended to injure a person or persons. This type of case involves bad faith, in the sense of the exercise of a public power for an improper or ulterior motive.
For “untargeted malice”, the public officer acts knowing that he/she has no power to do the act complained of, or acts with “reckless indifference” as to the lack of such power and knows that the act will probably injure the claimant. Read more »
Executive Functions
March 3rd, 2020 by James Goudie KC in Decision making and ContractsThe decision of Swift J in Williams v Caerphilly Council, noted in this Bulletin on 29 June 2019, has been upheld by the Court of Appeal: (2020) EWCA (Civ 296). Cabinet had the power to adopt a Sports and Recreation Strategy. This was not a decision that had to be taken by Full Council. The default position applied. A distinction is to be drawn between approval of a plan and its implementation. The adoption of the 10 year Strategy was not concerned with the Council’s annual budget or its capital expenditure plan. Future closure and other decisions would be distinct matters that would need to be considered on their own merits. There was nothing in the Strategy to say that the closure of any existing facility would inevitably happen, let alone that it would happen in the then current financial year.