R (Hollow) v Surrey County Council (2019) EWHC 618 (Admin) is now the leading case on challenges to local authority budgets. The challenge failed on all grounds. It was particularly focussed on savings in relation to special educational needs and disabilities (“SSEND”).
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Budget Decision-Making
March 19th, 2019 by James Goudie KC in Decision making and Contracts
Legitimate Expectation
March 19th, 2019 by James Goudie KC in Decision making and ContractsIn R (Alliance of Turkish Businesspeople Ltd) v SSHD (2019) EWHC 603 (Admin) issues were raised about a substantive legitimate expectation derived from published guidance and a change of policy by SSHD. The claim for judicial review was dismissed. The Judge did find both that there was a “clear and unambiguous”
Employment Contracts
March 19th, 2019 by James Goudie KC in Decision making and ContractsIn North West Anglia NHS Foundation Trust v Dr Andrew Gregg (2019) EWCA Civ 387 it was held that the employer was not entitled to withhold pay during a period of suspension not imposed by way of sanction. Coulson LJ said, at paragraphs 69 and 71, that, in a situation where the contract does not address the issue of pay deduction during suspension, the default position should be that, in the ordinary case, where allegations are disputed, suspension should not attract the deduction of pay.
Consultation
March 13th, 2019 by James Goudie KC in Decision making and ContractsIn Stephenson v SoS for MHCLG (2019) EWHC 519 (Admin) Dove J, from paragraph 35 to paragraph 62, applied familiar principles as to the requirements to be satisfied by a lawful consultation exercise, the parameters which need to be observed in order to ensure that the consultation is one which is lawful. He found the
Elected Representatives
March 12th, 2019 by James Goudie KC in Elections and BylawsCurrently all controllers for the purposes of the Data Protection Act 2018 (“DPA 2018”) are required to provide certain information to the Information Commissioner’s Office (“the ICO”) and pay a charge, unless a relevant exemption applies. There are a number of exemptions from paying the charges for certain types of data controller and processing. The exemptions are intended to form part of a fair and flexible framework of paying charges to the ICO, and provide for scenarios where payment of a charge would not be appropriate, for example because payment of the charge would give rise to significant negative impact. Read more »
Ratification
March 12th, 2019 by James Goudie KC in Decision making and ContractsCauswell v General Legal Council (2019) UKPC 9 concerns whether disciplinary proceedings commenced by a person purporting to do so as agent for the complainant, but without the complainant’s authority, are capable of being made good by ratification by the complainant, or whether they are a complete nullity incapable of ratification. The question turns upon the principles of the law of agency relating to ratification and the true construction of relevant legislation. Read more »
Future Loss
March 12th, 2019 by James Goudie KC in Judicial Control, Liability and LitigationIn Qu v Landis & Gyr Ltd, (2019) UKEAT/0016/19/0803, a case about remedy for disability discrimination, and the difficult exercise of assessing what is likely to have happened absent a discriminatory dismissal, Simler J said as to the approach to the question of assessing future loss (emphasis added):-
“28. The authorities show that it is a rare case where it is appropriate for a Tribunal to assess compensation over a Claimant’s career lifetime, as the Claimant invited the Employment Tribunal to do. The usual approach is to assess loss up to a point where a Tribunal is satisfied, having regard to all the uncertainties and vagaries of life, that the individual is likely to get an equivalent job. The speculative nature of the exercise means that it is possible that the individual will in fact get an equivalent job sooner or might be unlucky and take longer to do so. Thus, the Tribunal’s prediction will not necessarily be right, but those outcomes are inevitably factored into its assessment. Since the calculation of compensation for future loss is both speculative and predictive, there is no certainty about what will happen, but rather a range of possibilities and chances of different things occurring. The assessment is not a question of fact but a question of carrying out an assessment on the basis of the Tribunal’s best estimate about the future. Read more »
Bias
March 11th, 2019 by James Goudie KC in Decision making and ContractsA Professional Conduct Panel (“the PCP”) of the Teaching Regulation Agency (“the TRA”) conducted a hearing to consider events and whether they required consideration by the Secretary of State for Education (“the SoS”) of a Prohibition Order preventing a teacher from pursuing his career. The PCP recommended such prohibition. The SoS followed that recommendation. It was his decision to make a Prohibition Order.
In Lone v SoS (2019) EWHC 531 (Admin) the teacher appealed. One of his grounds of appeal was alleged procedural irregularity, not on the part of the PCP or of the SoS, but rather on the basis that the Chief Executive of the TRA (“the CEO”) was acting as a judge in his own cause, and was automatically disqualified, in accordance with the Pinochet case, or that his position created an appearance of bias such as to vitiate the decision. This ground failed. Read more »
Avoidance Schemes
March 8th, 2019 by James Goudie KC in Council Tax and RatesIn Rossendale BC v Hurstwood Properties and Wigan Council v Property Alliance Group (2019) EWCA Civ 364 actions by local authorities seeking to recover National Non-Domestic Rates from property developers in respect of unoccupied hereditaments were struck out where the developers had set up schemes to avoid the payments involving transferring leases of the properties to special purpose vehicle companies. The Ramsey principle of purposive interpretation of the statutory scheme did not apply and there was no reason to pierce the corporate veil.
These appeals concerned two schemes. Both schemes involved the grant of leases of properties to SPVS without assets or liabilities which, as part of the scheme in question, were then placed in voluntary liquidation or were allowed to be struck off the register of companies as dormant companies and thus dissolved. Read more »
Rejection of a tenderer’s bid
March 6th, 2019 by James Goudie KC in Decision making and ContractsIn Cases T-439/17 and T-450/17, Yellow Window v EIGE and Eurosupport v EIGE, the EU General Court gave Judgment on 5 March 2019 in relation to a tender procedure for the provision of a public service. The cases arose out of the obligation to state reasons for the rejection of tenderers’ bids. The Court reiterated that the duty to state reasons is an “essential” procedural requirement. It is distinct from the question whether the grounds given are correct. The Court said:-
“… the obligation to state reasons laid down in Article 296 TFEU presupposes that the reference to the strengths and weaknesses of a tender enables the tenderer concerned to understand the marks awarded in the light of the criteria and sub-criteria of the specifications … A correlation must therefore exist between comments identifying strengths and weaknesses, on the one hand, and the marks awarded in relation to those criteria and sub-criteria, on the other hand. Moreover, the statement of reasons must show clearly and unequivocally the reasoning of the author of the act, in such a way as to allow (i) interested parties to know the justifications for the measure taken in order to assert their rights and (ii) to enable the Court to exercise its power of review … More specifically, Article 113(2) of the Financial Regulation requires the contracting authority to provide the tenderer with the real reasons for the rejection of its tender. A statement of reasons which does not identify the true basis of the decision rejecting a tender and which does not faithfully reflect the manner in which the rejected tender was assessed is not transparent and does not satisfy the obligation to state reasons laid down by the latter provision …
It follows from the foregoing that, failing a justification which is neither consistent nor unequivocal nor transparent, the mark awarded to a tender on the basis of which it will be classified must, as a matter of principle, be a reflection of the strengths and weaknesses identified by the evaluators in their comments.”