TUPE

December 11th, 2017 by James Goudie QC in Decision making and Contracts

Case C-472/16, Siguenza v Ayuntamiento de Valledolid, in which Advocate General Tanchev delivered his Opinion on 6 December 2017, concerns a music teacher previously employed by a company that had been running a municipal music school, following the school having been run by the municipality directly.  The case raised yet again the question under what such circumstances the loss of a service contract to a competitor following a tendering exercise is to be regarded as the transfer of an economic entity so as to require the new contractor to take over staff of the previous contractor.  The specific features of the particular case were (1) a concession that expired before the competitor took over, (2) a delay of 5 months before the competitor resumed the activity and (3) the fact that none of the 26 persons employed by the previous employer were taken over, albeit the tangible assets were taken over. The Advocate General concluded that there was no transfer.

There was no economic entity: at the time the school resumed it had ceased to exist as an entity.  If there was an economic entity, it did not retain its identity: most of the factors which indicate whether the old and the new entity are identical militated against there being a transfer.

 

Legitimate Expectation

December 4th, 2017 by James Goudie QC in Decision making and Contracts

In Save Britain’s Heritage v SoS for CLG and Westminster City Council (2017) EWHC 3059 (Admin) Lang J held that there was no duty on the SoS to give reasons for a decision not to call in the controversial planning application for the Paddington Cube development.  There had been a practice that could well have given rise to a procedural legitimate expectation that reasons would be given for non-intervention. However, that practice had ceased.  There was no longer an established practice to that effect. On the contrary, the established practice had become that reasons would not be given. The earlier practice and statements sought to be relied upon had been superseded.  They could no longer found a legitimate expectation that reasons would be given.  No misleading representation had been made at the relevant time.  Anyone active in planning matters should have been aware of the well-publicised change. If any expectation remained, it had ceased to be a legitimate one. There was no legal requirement to issue a formal statement of the change.  Practice and policy are subject to change.

 

Consultation

November 13th, 2017 by James Goudie QC in Decision making and Contracts

In R (Help Refugees Ltd) v SSHD (2017) EWHC 2727 (Admin) a Divisional Court held that there had been no unfairness in the SSHD’s statutory consultation with local authorities on the requirements relating to the relocation of Unaccompanied Asylum Seeking Children.  The test was not whether the consultation process was free from all blemish, but whether the consultation was so unfair as to be unlawful, i.e. whether it reached an appropriate level of fairness, judged in the light of the criteria for a fair consultation.  The target audience was knowledgeable, sophisticated, and familiar with refugee issues. There was no reasonable expectation that late responses would be considered. Read more »

 

Award of contracts

November 1st, 2017 by James Goudie QC in Decision making and Contracts

R (Hersi & Co) v Lord Chancellor (2017) EWHC 2667 (TCC) is concerned with the defendant’s conduct of a public procurement exercise for the award of contracts to provide publicly-funded legal services relating to immigration and asylum and mental health work.

As part of the tender, there were 7 particular questions, grouped under the heading ‘Selection Criteria’, which all applicants were required to answer. The claimant answered the first three, but then left blank the answers to Questions 4, 5, 6 and 7. In consequence, the defendant awarded the claimant no points for its answers to those questions and the claimant’s tender failed to gain the required points to justify the award of a contract. The claimant now argues, either that the defendant should have sought clarification of their non-answers, and/or that the answers to the questions were plain from other parts of the claimant’s tender and should have been scored accordingly. In addition, the claimant has a wider case in which it seeks to compare the defendant’s treatment of numerous other applicants on other aspects of their tenders, so as to allege inequality of treatment. Read more »

 

Remedy for breach

November 1st, 2017 by James Goudie QC in Decision making and Contracts

In Case E-16/16, Fosen-Linjen AS v AtB AS, the EFTA Court has said, in a Judgment on 31 October 2017, that damages are available as a remedy for breach of the procurement rules where there is a sufficient causal link between the breach and the damage irrespective of the gravity of the breach.  A simple breach of procurement law is in itself says the Court sufficient to trigger the liability of the contracting authority to compensate for damage incurred: paragraph 82.  This contrasts with the Supreme Court Judgement in Energy Solutions v NDA (2017) UKSC 34.

 

Principles and policies

November 1st, 2017 by James Goudie QC in Decision making and Contracts

Lewis J in R (Lupepe) v SSHD (2017) EWHC 2690 (Admin) considers (paragraphs 48/49) the principle that it is unreasonable, in the public law sense, to disagree with a factual conclusion of an adjudicator who has heard the evidence unless the adjudicator’s conclusion is itself unlawful as a matter of public law (or unless fresh material has become available since the hearing).  An illustration of the principle is the decision of the Court of Appeal in R v Warwickshire County Council ex p Powergen (1996) 97 LGR 617 where the Court of Appeal held that a highway authority could not depart from the decision of a planning inspector on a planning appeal that a particular development did not give rise to highway safety issues and it could not act on the basis that the proposed development would create highway dangers.

Lewis J also considered (paragraphs 61-66 inclusive) the position with respect to unpublished policies and (paragraphs 67-69 inclusive) procedural fairness (opportunity to make representations). The law governing the application of unpublished policies was considered by the Supreme Court in R (Lumba) v Secretary of State for the Home Department (JUSTICE intervening) [2012] 1 AC 245. The Supreme Court concluded that what must be published “is that which a person who is affected by a policy needs to know in order to make informed and meaningful representations to the decision-maker before a decision is made”. Where there is a policy in existence, and its provisions are material to the exercise of a discretion in a particular case, those provisions must be made public.

 

Procurement

October 6th, 2017 by James Goudie QC in Decision making and Contracts

The Judgment of Coulson J in Cemex v Network Rail [2017] EWHC 2392 (TCC) is of interest on a number of aspects of procurement challenges.  On applications for an extension of time to serve the Particulars of Claim the Judge said:- Read more »

 

Avoiding Service Disruption

September 7th, 2017 by James Goudie QC in Decision making and Contracts

The best possible service to the public, without disruption, and with minimal risk to service recipients, is a factor in favour of allowing a public contract award to be implemented. In Sysmex (UK) Ltd v Imperial College Healthcare NHS Trust [2017] EWHC 1824 (TCC) Coulson J was concerned with a procurement challenge to the Trust’s award of a managed services contract (“the MSC”) in respect of pathology services. Read more »

 

Suspension

August 16th, 2017 by James Goudie QC in Decision making and Contracts

Agoreyo v Lambeth LBC (2017) EWHC (2019) QB reaffirms that suspension ( of a teacher ) is not a ” neutral act ” ( para 24 ) and should not be considered a routine response to the need for an investigation ( para 27 ) and that alternatives must be considered ( para 29 ).

 

Employment Contract

August 7th, 2017 by James Goudie QC in Decision making and Contracts

In Dudley MBC v Willetts, UKEAT/0334/16/JOJ, the President of the EAT, Simler J, held that payment for voluntary overtime which is regularly worked is normal remuneration for the purposes of calculating holiday pay notwithstanding that there is no obligation in the employment contract itself to perform the work.