In Perry v Raleys (2019) UKSC 5 the Supreme Court said that loss of chance damages have been developed by the Courts to deal with the difficulties arising from the assessment of counter-factual and future events. In both types of situation, the Courts, at times, depart from the ordinary burden on a claimant to prove the facts required for a successful claim on the balance of probabilities (i.e. more likely than not) standard. However, this does not mean that the basic requirement that a negligence claim requires proof that loss has been caused by the breach of duty is abandoned. The correct approach is to require a claimant to prove what he or she would have done on the balance of probabilities, while what others would have done (if relevant) depends on a loss of chance evaluation. These principles apply equally to negligence claims based on loss of the opportunity to achieve a better outcome in a negotiated transaction and ones, as in this case, based on loss of the chance to bring a legal claim.
Loss of a chance
February 13th, 2019 by James Goudie KC in Judicial Control, Liability and Litigation
Discrimination
February 11th, 2019 by James Goudie KC in Decision making and ContractsThe prohibition of discrimination based on nationality is enshrined in Article 18 TFEU and Article 21(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’). The broader non-discrimination principle of which it is an expression is among the fundamental values of the EU (Article 2 TFEU), and among the rights protected by the Charter (Article 21). The principle of non-discrimination is a manifestation of the principle of equality of individuals before the law. The principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way. Read more »
Allocation Policy
February 11th, 2019 by James Goudie KC in HousingHillingdon LBC’s 2016 housing allocation policy, pursuant to Section 166A of the Housing Act 1996, was found in some respects to be unlawful in TW v Hillingdon LBC (No. 1) (2018) PTSR 1678. Lawfulness requires compliance not only with the provisions of that Act, but also compliance with the Equality Act 2010, and with obligations under Section 11 of the Children Act 2004. In particular, in TW (No. 1) Supperstone J declared Hillingdon’s 10 year residence qualification to be
Homelessness
February 6th, 2019 by James Goudie KC in HousingKannan v Newham LBC (2019) EWCA Civ 57 is a case of unintentional homelessness and priority need where the “full housing duty” applies, under Section 193 of the Housing Act 1996, and is dischargeable in accordance with Section 206, the Homelessness (Suitability of Accommodation) Order 2012, and Guidance. The issue was whether accommodation provided by the Council for Mr Kannan was “suitable”. Read more »
Procedural Fairness
February 6th, 2019 by James Goudie KC in Decision making and ContractsDymoke v Association for Dance Movement (2019) EWHC 94 (QB) was a private law contractual action. Nonetheless, an implied duty of procedural fairness was found to exist, in relation to termination of membership of a company, and in particular that the claimant would be informed of complaints or concerns in sufficient detail to enable her to respond to them, and would be given a reasonable opportunity to respond. That applied not only to the complaints or concerns, but also to the question of whether they justified the sanction of termination of membership: paragraph 65.
Proportionality
February 6th, 2019 by James Goudie KC in Decision making and ContractsIn R (MAS) v SoS for DEFRA (2019) EWHC 158 (Admin), Morris J, at paragraphs 53/54, stated the principles of proportionality as follows:-
(1) Proportionality is a general principle of EU law;
(2) Its application in any particular case is always highly fact-sensitive;
(3) It applies to national measures falling within the scope of EU law;
(4) It applies only to measures interfering with protected interests;
(5) Protected interests include the fundamental freedoms governed by the EU Treaties;
(6) Where the issue is the validity of a national measure, it is for the national Court to reach its own conclusion on proportionality; Read more »
Scheme for allocation of social housing
February 6th, 2019 by James Goudie KC in HousingR (Z and others) v Hackney LBC and Agudas Israel Housing Association (2019) EWHC 139 (Admin) challenged the arrangements made by AIHA for the allocation of social housing properties owned or controlled by AIHA, which in present circumstances in effect preclude any persons who are not members of the Orthodox Jewish community from becoming tenants of such properties. The claim also challenges the lawfulness of Hackney’s arrangements as a local housing authority for the nomination of applicants to these properties, which again in present circumstances in effect precludes any persons who are not members of the Orthodox Jewish community from receiving nominations for the properties owned by AIHA. In short, the claimants contended that these arrangements discriminated against them because they are not members of the Orthodox Jewish community, and are unlawful, principally, under the Equality Act 2010. Read more »
Planning Enforcement
February 4th, 2019 by James Goudie KC in Planning and EnvironmentalJohnson v Windsor and Maidenhead RBC (2019) EWHC 160 (Admin) is concerned with enforcement proceedings in relation to land, pursuant to the Town and Country Planning Act 1990 (“the TCPA”). Justine Thornton QC, sitting as a Deputy High Court Judge, described the legal framework as follows:-
(1) Planning permission is required for the carrying out of development of land;
(2) The making of a material change in the use of land is development;
(3) Carrying out development without the required planning permission, or failing to comply with any condition or limitation pursuant to which the planning permission has been granted, constitutes a breach of planning control; Read more »