Pension Scheme Governance

September 21st, 2021 by James Goudie QC in Decision making and Contracts

The Taskforce on Pension Scheme Voting Implementation has set out its Recommendations to the DWP on voting system issues and the respective roles of pension trustees and asset managers and communication between them. Currently, when pension schemes invest in pooled funds, they surrender their rights to vote at the AGMs of the companies they invest in. The asset managers in charge of these pooled funds are not always prepared to engage with their clients’ voting preferences, on issues such as climate risk management, diversity, and pay.

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Setting Aside a Contract

August 18th, 2021 by James Goudie QC in Decision making and Contracts

The issue before the Supreme Court in Pakistan International Airline Corporation v Times Travel (2021) UKSC 40 was whether, and, if so, in what circumstances, a party can set aside a contract on the ground that it was entered into as a result of the other party threatening to do a lawful act. The Supreme Court examines the elements of the doctrine of lawful act economic duress.

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Legitimate Expectation

August 16th, 2021 by James Goudie QC in Decision making and Contracts

The requirement for the existence of a legitimate expectation that an assurance was “clear, ambiguous and devoid of relevant qualification” means that it’s creation will arise only where the claimant proves “the clearest of assurances”. The same test applies whether or not the case involves the removal of an existing right. So held in R (Mitchell) v SoS for Justice (2021) EWHC 2248 (Admin).

 

Balance of Convenience

August 9th, 2021 by James Goudie QC in Decision making and Contracts

The commencement of proceedings challenging the procurement of a contract brings into effect an automatic stay upon entering into the contract. Should the Court lift the stay? If there is a serious issue to be tried, and there is doubt as to the adequacy of damages for either of the parties, the issue turns on balance of convenience. In Draeger v London Fire Commissioner (2021) EWHC 2221 (TCC) O’Farrell J, at para 48, states that the balance of convenience test requires the Court to consider all the circumstances of the case. The question is what course of action is likely to carry the least risk of injustice. She restates the factors: (1) how long might the suspension have to be kept in force if an expedited trial could be ordered; (2) the public interest; and (3) the interests of all parties, including the successful bidder. If these factors do not point in one direction then the prudent course will usually be to lift the suspension and allow the contract to be entered into.

 

Tendering Process

July 28th, 2021 by James Goudie QC in Decision making and Contracts

In Church v Information Commissioner, EA/2020/0187V, the FTT (GRC) holds that on a Request for Information about a local authority’s tendering process, for the provision of a new School, the exemptions for personal information and commercial confidentiality in FoIA did not entitle the authority to withhold (1) the names of the members of its Selection Panel, (2) the Applications made by the rival bidders, (3) the scores awarded to the winning bidder, or (4) documents detailing the Selection Panel’s assessment of the winning bid.

 

Restraint of Trade

July 23rd, 2021 by James Goudie QC in Decision making and Contracts

In Harcus Sinclair LLP v Your Lawyers Ltd (2021) UKSC 32 the Supreme Court holds that (1) In determining the legitimate interests of the promisee in a restraint of trade case account can be taken not only of the contract terms but also what the parties objectively intended or contemplated consequent on the contract; and (2) the Court’s supervisory jurisdiction with respect to a solicitor’s undertaking does not apply in the case of a LLP.

 

Transparency

July 6th, 2021 by sophiep in Decision making and Contracts

In Biffa Waste Services v Leicestershire County Council (2021) EWHC 1764 ( TCC ) Joanna Smith J addresses the scope of the Principle of Transparency in regulated public contract procurements, and also the requirement to establish causation of loss or damage. At para 44 the Judge declined to make new law seeking to impose an enforceable legal obligation on contracting authorities to inform bidders each time one or other anonymised rival bidder withdraws or is readmitted to a procurement process.

 

 

Direct Award of Contract

June 9th, 2021 by James Goudie QC in Decision making and Contracts

Regulation 32 (2) (c) of the Public Contracts Regulations 2015 allows negotiation of a contract without prior advertisement insofar as it is “strictly necessary”. This is provided that is so by reasons of “extreme urgency”. Moreover, the extreme urgency must be brought about by events “unforeseeable” by the contracting authority and it must not be possible for the time limits for other procedures to be complied with. In R ( Good Law Project) v Minister for the Cabinet Office (2021) EWHC 1569 (TCC) O’Farrell J observed, at para 82, that use of the Regulation 32(2)(c) procedure is a departure from the “normal requirement” that public contracts ( above the relevant thresholds) “ must” be subject to an “open, transparent and competitive process.” As such, it should be reserved for “exceptional circumstances”. At para 89 she observed that the burden of proving the requisite circumstances is on the contracting authority and that the derogation must be “interpreted strictly”; at para 90 that in each case it is a question of fact, objectively ascertained, as to whether the necessary circumstances existed at the time the decision was made.; at para 91 that in considering whether there was sufficient time to carry out an expedited procurement exercise the Court may take into account evidence as to the minimum time needed in practice, for preparing tender documentation, evaluating tenders, etc; and at para 93 that even if the derogation is engaged the “scope and duration” of the procurement “must be limited” to what is strictly necessary.

At para 124 the Judge held that the extreme urgency,  for immediately needed public health protection services, caused by the Covid-19 pandemic was unforeseeable, unpredictable, and not attributable to the Defendant.

 

Procurement Policy

June 3rd, 2021 by James Goudie QC in Decision making and Contracts

The Cabinet Office has issued a National Procurement Policy Statement with immediate effect. This amongst other matters requires contracting authorities to have regard to  national strategic priorities for public procurement when exercising their functions relating to procurement.  These are (1) creating new businesses, new jobs and new skills, (2) tackling climate change and reducing waste, including contributing to the target to reduce greenhouse gas emissions to net zero by 2050 and delivering environmental benefits,

and (3) improving supplier diversity, innovation and resilience. Authorities should take a “broad view” of value for money that includes the improvement of social welfare or wellbeing, balanced with delivery of the core purpose of the contract.

 

Delegation

June 2nd, 2021 by James Goudie QC in Decision making and Contracts

The Planning Committee of a local authority resolves to grant planning permission for a mixed use development. It does so subject to the developer entering into: “an appropriate legal agreement.” Council officers entered into a s 106 agreement which made affordable housing provision. They did not return to the Committee. Did they act beyond their delegated authority? No, says the Court of Appeal in R (Flynn) v Southwark LBC (2021) EWCA Civ 827, at paras 39-63 inc & 95-97.