In R (RD) v Worcestershire County Council (2019) EWHC 449 (Admin), Nicklin J, dealt with the law on legitimate expectation from paragraph 75 of his Judgment.  He found that frustration of a legitimate expectation was not lawful.  He said:-

Paragraph 77: It may be difficult to decide whether a promise should be considered as inducing a procedural legitimate expectation or a substantive legitimate expectation;

Ibid:  In both cases, if the legitimate expectation is established, the Court will require the promise to be fulfilled, unless there is an “overriding reason” to resile from it;

Ibid: The question is whether the frustration of the expectation is “so unfair that it amounts to an abuse of power”; Read more »

In the matter of an application by Geraldine Finucane for Judicial Review (Northern Ireland) (2019) UKSC 7 considers substantive legitimate expectation from paragraph 55.  Lord Kerr on behalf of the Supreme Court concluded:-

“62.     From these authorities it can be deduced that where a clear and unambiguous undertaking has been made, the authority giving the undertaking will not be allowed to depart from it unless it is shown that it is fair to do so. The court is the arbiter of fairness in this context. And a matter sounding on the question of fairness is whether the alteration in policy frustrates any reliance which the person or group has placed on it. This is quite different, in my opinion, from saying that it is a prerequisite of a substantive legitimate expectation claim that the person relying on it must show that he or she has suffered a detriment.”

“64.    The onus of establishing that a sufficiently clear and unambiguous promise or undertaking, sufficient to give rise to a legitimate expectation, is cast on the party claiming it …” Read more »

In R (United Cabbies Group (London) Ltd v Westminster Magistrates Court (2019) EWHC 409 (Admin) a Divisional Court reiterated principles relating to two categories of bias: presumed bias; and apparent bias. The Court said:-

36. The applicable principles are not in doubt.

Presumed Bias

i) Where a judge has a direct pecuniary or proprietary interest in the outcome of a case, he or she is automatically disqualified, whether or not that interest gives rise to a reasonable apprehension of bias …

ii) The rationale of the rule is that “a man cannot be a judge in his own cause”. That being so, the rationale disqualifying a judge applies just as much if the judge’s decision will lead to the promotion of a cause in which the judge is involved together with one of the parties …

Read more »

On 22 February 2019, the Cabinet Office has issued a Procurement Policy Note (“PPN”) on “Applying Exclusions in Public Procurement, Managing Conflicts of Interest and Whistleblowing” to “deepen understanding” and “supplement and strengthen existing practices”.

An accompanying Information Note explains:-

“When the UK leaves the EU the public procurement regulations will remain broadly unchanged. If the UK leaves the EU with a deal, the existing scheme of UK procurement rules, which implement the EU public procurement directives, will be preserved under the European Union (Withdrawal) Act 2018. If the UK leaves the EU without a deal, the current regulations will be amended to ensure they remain operable and functional on exit.”

The PPN itself addresses Mandatory Exclusion (paragraphs 3-7 inclusive, PCR Regulation 57), Discretionary Exclusion (paragraphs 8-10 inclusive, Regulation 57), Self-declaration of status against the exclusion grounds (paragraphs 11-14 inclusive, Regulation 59), Verification (paragraphs 15-18 inclusive, Regulations 57, 59 and 60), “self-cleaning” (paragraphs 19-21 inclusive, paragraph 57) Conflicts of Interest (paragraphs 22-27 inclusive, Regulations 24, 41, 57 and 84), and “Whistleblowing” (paragraphs 28 and 29).

Paragraph 17 of the PPN emphasizes as follows:-

“In-scope Organisations must request up to date evidence from the winning bidder before award of the contract. If the supplier fails to provide the required evidence within set timeframes, or the evidence demonstrates that a mandatory exclusion ground applies, the award of the contract should not proceed.”