Consultation

July 12th, 2019 by James Goudie QC in Decision making and Contracts

In R (LF) v Buckinghamshire County Council (2019) EWHC 1817 (Admin) a judicial review challenge failed to a decision by the Council, by its Cabinet, to close 19, and retain 16, of its Children’s Centres, whilst ensuring the continuing use of the closed Centres for early years and community benefit. Andrews J was satisfied that the Council had carried out a fair Consultation before Cabinet made its decision, that it took the responses properly into account, and that it complied with all its relevant statutory duties.

There was an obligation on the Council under Section 5D of the Childcare Act 2006 to “secure that such consultation as they think appropriate” was carried out before any change was made in the services to be provided through a Children’s Centre or before the closure of any such Centre.  Andrews J said (paragraph 34) that gave the Council “a wide discretion as to what the consultation should comprise”, subject only to the requirements of statutory Guidance. Read more »

 

Executive Functions

June 26th, 2019 by James Goudie QC in Decision making and Contracts

In Williams v Caerphilly County Borough Council (2019) EWHC 1618 (Admin) the Claimant challenged two decisions taken by the Council, which operates executive arrangements: a Cabinet decision to adopt a Sports and Active Recreation Strategy for 2019-2020 (“the Sports Strategy” and “the Strategy Decision”); and a further and later Cabinet decision to close a Leisure Centre (“the Closure Decision”).

As regards the Strategy Decision, the first ground of challenge was that the Strategy Decision was unlawful because it was taken by Cabinet, when it should have been taken by Full Council, pursuant to the Local Authorities (Executive Arrangements) (Functions and Responsibilities) (Wales) Regulations 2007 (“the 2007 Regulations”). Read more »

 

Abandonment of Procurement

June 4th, 2019 by James Goudie QC in Decision making and Contracts

One of the issues in Amey Highways Ltd v West Sussex Council (2019) EWHC 1291 (TCC) was whether or not the Council had lawfully abandoned a procurement.  Stuart-Smith J stated relevant general principles as follows:

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Suspension of Contract

May 22nd, 2019 by James Goudie QC in Decision making and Contracts

Kenson Contractors v Haringey LBC (2019) EWHC 1230 (Admin) was an application made by the Claimant contractor, for an interim injunction against the Council to suspend its decision to award or execute a road-improvement contract to the Interested Party, Marlborough Highways Limited (“MHL”). Kenson came second in the procurement exercise for that contract and MHL came first. Because of the value of the contract (some £630,000 plus VAT) this procurement exercise was well below the threshold for the operation of the otherwise relevant parts of the Public Contracts Regulations 2015.  The underlying claim was brought by way of judicial review (“JR”) of the Council’s decision to award the contract to MHL rather than Kenson.

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Procedural Fairness/Tameside Duty

April 18th, 2019 by James Goudie QC in Decision making and Contracts

When a decision-maker is minded to make a decision adverse to someone on the basis of their dishonesty or other reprehensible conduct he is required as a matter of procedural fairness to indicate that suspicion clearly and give the applicant an opportunity to respond. This principle has been reaffirmed in Balajigari v SSHD (2019) EWCA Civ 673, from paragraph 46, where the Court of Appeal said:-

“46.    … the question of whether there has been procedural fairness or not is an objective question for the court to decide for itself. The question is not whether the decision-maker has acted reasonably, still less whether there was some fault on the part of the public authority concerned.”

“59.    … although sometimes the duty to act fairly may not require a fair process to be followed before a decision is reached … fairness will usually require that to be done where that is feasible for practical and other reasons. … Read more »

 

Local authority budgets

April 16th, 2019 by James Goudie QC in Decision making and Contracts

Following the Divisional Court decision in Hollow v Surrey County Council (2019) EWHC 618 (Admin) on local authority budgets and decisions to reduce expenditure, Supperstone J has decided R (AD) v Hackney LBC (2019) EWHC 943 (Admin), in which, again, the challenge was dismissed, and all the various grounds of challenge rejected. As regards alleged “systemic unlawfulness”, it was not the case that Hackney’s approach inherently would produce failures to comply with the relevant absolute, statutory duty (Section 42 of the Children and Families Act 2014). The impact of the reduction upon SEN children and Education and Health Care Plans could be mitigated in individual cases. Nor was a banded system an intrinsically unlawful way to discharge that duty. Further, there was no breach of Section 27 of the 2014 Act, of the PSED, of Section 175 of the Education Act 2002, or of Section 11 of the Children Act 2004. Moreover, no public law consultation was required under Section 27, or the PSED or at common law. There was no legitimate expectation of consultation. It was not required in order to avoid “conspicuous unfairness”. There was compliance with the Tameside duty to equip oneself with adequate information.

 

 

 

Consultation

April 16th, 2019 by James Goudie QC in Decision making and Contracts

Keep the Horton General v Oxfordshire CCG and Cherwell District Council (2019) EWCA Civ 646 concerns one aspect of the first part of a two-phase consultation exercise upon five proposals. McCombe LJ said:-

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Procedural Propriety

April 9th, 2019 by James Goudie QC in Decision making and Contracts

On acting as a judge in one’s own cause, legitimate expectation, and ECHR Article 8, see the Divisional Court Judgment in R (Sargeant) v First Minister of Wales (2019) EWHC 739 (Admin). A Press Statement issued by the First Minister stating that there would be an Independent Inquiry into actions of his was held to give rise to an enforceable legitimate expectation that he would himself have no involvement in the preparatory work for the Inquiry.   That expectation was breached by him by setting the remit for the drafting of the Operational Protocol governing the Inquiry and by his control over the final form of that Protocol.

 

Participation in public contract

April 1st, 2019 by James Goudie QC in Decision making and Contracts

Case C-101/18, Idi v Arcadis, CJEU Judgment on 28 March 2019, concerns the exclusion of Idi from participating in a tendering procedure for a public services contract.

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Contractual Interpretation

April 1st, 2019 by James Goudie QC in Decision making and Contracts

The issue before the Court of Appeal (Longmore, David Richards and Leggatt LJJ) in Merthyr (South Wales) Ltd v Merthyr Tydfil County Borough Council (2019) EWCA Civ 526 was one of interpretation of a contract to establish an escrow account.

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