Bias

February 27th, 2019 by James Goudie KC in Decision making and Contracts

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:-

  1. 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 …

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Defective Premises

February 27th, 2019 by James Goudie KC in Judicial Control, Liability and Litigation

In Rogerson v Bolsover District Council (2019) EWCA Civ 226 the appellant was the tenant of a council house.  She suffered injury as the result of an accident.  The issue was whether the Council could be liable under Section 4 of the Defective Premises Act 1972.  The relevant defect would have been discovered if the Council had implemented a system of regular inspection.  Did the Council as landlord have a duty to inspect? Read more »

 

Public Procurement

February 26th, 2019 by James Goudie KC in Decision making and Contracts

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.”

 

 

Site Reverter

February 25th, 2019 by James Goudie KC in Land, Goods and Services

The School Sites Act 1841 (“the 1841 Act”) was passed in order to encourage and facilitate the provision of up to one acre of land for use as “a site for a school for the education of poor persons, or for the residence of the schoolmaster or schoolmistress, or otherwise for the purposes of the education of such poor persons in religious and useful knowledge”. In the majority of cases it was used to provide land for local Church of England elementary (or what we now call primary) schools. The purposes set out in the 1841 Act are charitable educational purposes all of which specify a particular use of the land conveyed. The grantor is entitled to select between the statutory purposes as the terms of the trust on which the land is conveyed and may even supplement or modify the statutory purposes with provisions of his own choosing. But, it is the statutory purposes specified in Section 2 of the 1841 Act which determine the duration of the grant. If the land ceases to be used for the statutory purposes selected in the conveyance then title to it reverts to the estate of the grantor. Read more »

 

Equality Act

February 25th, 2019 by James Goudie KC in Environment, Highways and Leisure

McNutt v Transport for London [2019] EWHC 365 (Admin) was an appeal by way of case stated against a decision of Hendon Magistrates Court to find Mr McNutt, guilty of the offence contrary to Section 165(7) of the Equality Act 2010 (“the EA 2010”). It raised an important point of statutory construction in relation to the duty, pursuant to Section 165(1)(a) and Section 165(4)(b) of the EA 2010 on the driver of a taxi which has been hired by or for a disabled person in a wheelchair “not to make any additional charge for doing so”. By Section 165(7), it is a criminal offence to make such an additional charge.

A taxi is defined by Section 173(1)(a) to be a vehicle which is licensed under Section 37 of the Town Police Clauses Act 1847 or Section 6 of the Metropolitan Public Carriage Act 1869 (“the 1869 Act”). In simple terms, it means a vehicle plying for hire. Read more »

 

BREXIT

February 19th, 2019 by James Goudie KC in Non Judicial Control

The Local Audit (England and Wales) (Amendment) (EU Exit) Regulations 2019 will enable EU qualified auditors currently auditing local public bodies to continue to work in the UK, for a transitional period, in the event of a “no deal”. The Regulations are pursuant to powers in Section 8 of the European Union (Withdrawal) Act 2018, and are subject to the negative resolution procedure. There are now 238 Withdrawal Act Statutory Instruments.

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Street Works

February 19th, 2019 by James Goudie KC in Environment, Highways and Leisure

Section 50 of the New Roads Street Works Act 1991 provides a power for a street or highway authority to grant a licence, subject to Schedule 3 conditions, to permit a person to undertake street works. The power has been considered by Dove J in Calor Gas Ltd v Norfolk County Council (2019) EWHC 308 (Admin). The claimant’s case proceeded, firstly, on the basis that the policy operated by the Council in relation to Section 50 licences was contrary to the statutory scheme. Dove J said:-

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Permitted development

February 14th, 2019 by James Goudie KC in Planning and Environmental

In Westminster City Council v SoS (2019) EWHC 176 (Admin) Ouseley J held that under the GPDO, the whole development for which prior approval as permitted development was sought had to fall within the Class of development relied on. If part fell outside the Class, it was not a permitted development.  Under Schedule 2 Part 16 Class A, a proposed telephone kiosk had to be “for the purpose” of the telephone network.  A kiosk with a large digital advertising panel was not entirely for that purpose and did not fall within the Class.  It was not permitted development.

 

Functions of a Public Nature

February 13th, 2019 by James Goudie KC in Human Rights and Public Sector Equality Duty

Fearn and Others v Board of Trustees of the Tate Gallery (2019) EWHC 246 (Ch) is an injunction case brought in nuisance and under the Human Rights Act 1998 (“the HRA”) to protect what are said to be Article 8 rights of privacy in flats in a development on the south side of the Thames adjacent to the Tate Modern. One issue, under Section 6(3)(b) of the HRA, was whether the Tate, given Section 2(2) of the Museums and Galleries Act 1992, significant public funding, and controls by state officials, is a “hybrid” public authority against whom the HRA can be directly enforced.

Mann J addressed the law on “hybrid” public authorities from paragraph 108 of his Judgment, and the question whether the Tate is such an authority from paragraph 121. At paragraph 123 he said that the Tate displayed, to some degree, some of the factors which are said in the authorities to be relevant to the question whether the Tate is exercising public functions. None of them, however, were determinative. Read more »

 

Whether there is a binding contract

February 13th, 2019 by James Goudie KC in Decision making and Contracts

Whether an agreement was complete and enforceable despite there being no express identification of the event which would trigger the payment obligation was one of the issues before the Supreme Court in Wells v Devani (2019) UKSC 4.  This gave rise to questions whether there was a binding contract and as to whether there was an implied term.

The Supreme Court said as regards whether there was a binding contract:-

“17.    The question whether there was a binding contract between Mr Devani and Mr Wells required a consideration of what was communicated between them by their words and their conduct and whether, objectively assessed, that led to the conclusion that they intended to create a legally binding relationship and that they had agreed all the terms that the law requires as essential for that purpose….

  1. It may be the case that the words and conduct relied upon are so vague and lacking in specificity that the court is unable to identify the terms on which the parties have reached agreement or to attribute to the parties any contractual intention. But the courts are reluctant to find an agreement is too vague or uncertain to be enforced where it is found that the parties had the intention of being contractually bound and have acted on their agreement. …”

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