The 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.
Talking in public
March 3rd, 2020 by James Goudie KC in StandardsA press conference given by senior politicians is not to be regarded as an occasion for casual statements. On the contrary, “there is a clear public interest that politicians talking in public should observe high accuracy and fairness”. This is because “the public need to know the position” and are inevitably influenced by what politicians say. See paragraph 36 in Ramadhar v Ramadhar (2020) UKPC 7.
On the other hand (paragraph 37), those who are themselves engaged in public life and courted the media, cannot expect to be free from scrutiny or criticism in public. “Politicians cannot expect to be free from banter and ridicule, good-humoured or otherwise, or from scrutiny of their motives”. If politicians were entitled to be protected (by the law of defamation) against mere criticism, that might have a “chilling effect on democratic debate”. As Brendeis J said in the UK Supreme Court, “sunlight is said to be the best of disinfectants”. Lady Arden added, at paragraph 43: “Politicians are not expected to be shrinking violets when answering their critics or giving their opinion as to what is in the public interest”; and, at paragraph 54, “The need for politicians to follow high standards in political debate and the expectation that politicians should be open to reasonable criticism are universal features of a democratic society”.
Inducing Breach of Contract
February 28th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationThe issue in Allen v Dodd (2020) EWCA Civ 258 was what amounts to a sufficient state of mind to make a person liable in tort for inducing a breach of contract and causing loss by unlawful means. To be liable for inducing a breach of contract, you must know that you are inducing a breach. Negligence, even gross negligence, is not enough. Mere suspicion is not enough. The touchstone is knowledge.