REMOTE HEARINGS

July 11th, 2024 by James Goudie KC in Decision making and Contracts

WALK SAFE SECURITY SERVICES LTD v LEWISHAM LBC ( 2024) EWHC 1787 ( Admin) raises a pure question of law whether it is lawful for a licensing hearing before a local authority licensing committee to be held remotely. Chamberlain J holds that it is lawful, pursuant to the Licensing Act 2003 and the Licensing Act ( Hearings ) Regulations 2005. He observes that the point is of wide significance, because many local authorities conduct all or most licensing hearings remotely.

He said, at para 43, that there were 5 points relevant to interpretation that taken together favour a construction according to which remote hearings are permissible in principle. First, the term “ hearing” can be applied to both in person hearings and remote hearings. Second, the legislative context includes reference to the “ place “ at which the hearing takes place, and an online platform can properly be described as a “ place “. Third, there are “ important differences “between licensing hearings and local authority meetings. Fourth, the Regulations do not prohibit them and confer maximum procedural flexibility on licensing committees. Fifth, there is nothing in the Strasbourg Court jurisprudence to suggest that remote hearings “necessarily” gives rise to a violation of any ECHR procedural rights, albeit ( para 48 ) “ they may do so in particular cases, in which case a licensing authority would be obliged to consider alternative arrangements.”

 

PFI AGREEMENTS

July 4th, 2024 by James Goudie KC in Decision making and Contracts

In PEVENSEY COASTAL DEFENCE LTD v ENVIRONMENT AGENCY ( 2024 ) EWHC 1435 ( TCC ) it is held that, on the proper construction of a 25 year PFI agreement, for the provision of services, for the delivery of sea defences, the service provider could, retrospectively, make a claim for ADDITIONAL COST that it had incurred, as a result of a material increase in the FREQUENCY OF STORM EVENTS in the second decade of the PFI agreement, compared with its first decade. The ability to budget for a dynamic situation was a central element of the PFI agreement.

 

LIMITATION PERIODS

July 3rd, 2024 by James Goudie KC in Decision making and Contracts

In LANCASHIRE COUNTY COUNCIL v BROOKHOUSE GROUP LTD (2024) EWCA Civ 717 the Court of Appeal holds that the 30 day time limit under Regulation 95(3) of the Public Contracts Regulations, for seeking a Declaration of Ineffectiveness under Regulation 99, arising from an interested “economic operator” being given the “relevant reasons” it had been unsuccessful, did NOT apply where the Declaration was sought on the ground that NO CONTRACT NOTICE HAD BEEN PUBLISHED, despite one having been required.  In such a case, the limitation period was SIX MONTHS from the contract being entered into, unless the “contracting authority” issued a CONTRACT AWARD NOTICE. In that case the limitation period was 30 days, from when the contract was published.

 

COMPETITIVE TENDERING

July 2nd, 2024 by James Goudie KC in Decision making and Contracts

Cabinet Office Guidance relates to ( 1) contractual modifications, (2) time limits, and ( 3 ) the process for assessment of tenders, under the Procurement Act 2023.

 

LEGITIMATE EXPECTATION

June 28th, 2024 by James Goudie KC in Decision making and Contracts

Two decisions on legitimate expectation.  The first is R (BIRMINGHAM CITY COUNCIL) v SoS for TRANSPORT (2024) EWHC 1487 (Admin).  It concerned both substantive and procedural legitimate expectation.  The terms of a letter from the SoS to the Council confirming that Private Finance Initiative credits had been issued towards the capital costs of a highway project, and the Local Government PFI Project Support Guide (2009-10), had not created a legitimate expectation that if the PFI contract was terminated or varied the Government would withdraw credits only in exceptional circumstances.  However, the SoS had acted unfairly by withdrawing the credits without offering the Council a further opportunity to make representations.  On  substantive legitimate expectation, it was reasonably to be expected that the Council would rely on the guidance in the July 2010 letter and in Section G of the Guide on the topic of termination or variation of PFI contracts. The Government had intended that the claimant should rely on Section G of the Guide for that purpose.  However, the examples in Section G offered practical advice and guidance to local authorities on the application of the government’s policy to possible scenarios and were not intended to be read as an unqualified commitment by the Government as to how it would proceed in the circumstances of any actual case. The language was deliberately qualified in its terms.  The July 2010 letter and Section G para 2.1 of the Guide did not give rise to the substantive legitimate expectation for which the claimant contended.  However, as to procedural legitimate expectation/fairness, there had ben a clear shift in the Government’s position following the Council’s submission of its Full Business Case in August 2023, which had not been made known to the Council and upon which the Council had no opportunity to reflect or to engage, but which had very significantly affected the outcome of the process. In the light of what had gone before, fairness demanded that the Council should have been given the further opportunity to engage and respond.

 

The second decision is R (DONALD) v SSHD (2024) EWHC 1492 (Admin), again concerned with both substantive and procedural legitimate expectation, amongst other matters.  A decision by the SoS not to implement two of the 30 recommendations made in the “Windrush Lessons Learned Review”, an independent assessment of the events leading up to the “Windrush” scandal, was unlawful. The decision breached a legitimate expectation that the Home Office would not decline to implement any of the recommendations without first consulting relevant stakeholders; breached the public sector equality duty; and indirectly discriminated against the Windrush community.  As to substantive legitimate expectation, the Home Office had published a plan of future action in relation to a policy that was to be kept under review and would continue to develop.  It contained no explicit statement that all 30 recommendations would be implemented, and nor was that implied.  Although its focus was on how, and not whether, the recommendations would be implemented, that did not amount to a sufficiently clear, unambiguous and unqualified representation as to give rise to a substantive legal expectation that all of the representations would be implemented.  Indeed, it indicated that some of the Recommendations would be the subject of further investigation and deliberation.  Moreover, it had been published to the world at large.  While a substantive legitimate expectation could arise from a promise made to the world at large, the cases in which that happened were ones in which the main beneficiaries of the promises formed a relatively small group.  It was difficult to envisage a case in which the Government would be bound by a representation made generally or to a diverse class.  As to procedural legitimate expectation, there was a legitimate procedural expectation that the SoS would consult with relevant stakeholders, including the Windrush community.  Although there was no explicit statement to that effect, the prospect of a lack of consultation was so conspicuously unfair as to give rise to a legitimate expectation that there would be consultation.

 

EMPLOYMENT

June 27th, 2024 by James Goudie KC in Decision making and Contracts

In TAYLORS SERVICE LTD v HMRC (2024) EAT 102 the appellants are employers of workers on zero hours contracts. They provide transport by minibus for their workers from and too home. Judge Stout holds that the travel time is not “ time work “ for the purposes of the National Minimum Wage.

 

CONTRACTUAL INTERPRETATION

June 24th, 2024 by James Goudie KC in Decision making and Contracts

In CANTOR FITZGERALD v YES BANK ( 2024 ) EWCA Civ 695 the Court of Appeal, at paras 33 and 34, reaffirms the principles to apply in construing a contract, in that case an engagement letter. The Court is required to consider the ordinary meaning of the words used in the context of (1) the words used in the context of the contract as a whole and (2) the relevant (i) factual and (ii) commercial background. This excludes prior negotiations. The objective is to identify the parties, but in an objective sense, That is what (i) a reasonable person (ii) having all the background knowledge which would have been available to the parties would have understood them to be using in the contract to mean. Interpretation is an iterative process. Rival interpretations should be tested against (i) the provisions of the contract and its commercial consequences.

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FAIRNESS

May 22nd, 2024 by James Goudie KC in Decision making and Contracts

In ESCOBAR v SSHD ( “)”$ ) EWHC 1097 ( Admin ) it is held that whereas an administrative decision cannot have legal effect unless and until it has been communicated to the individual in question, a decision could have effect where notification had been provided, but the individual, for whatever reason, had not read it.

 

CONSULTATION

May 22nd, 2024 by James Goudie KC in Decision making and Contracts

In R (NCCL) v SSHD (2024) EWHC 1181 (Admin) a Divisional Court (Green LJ and Kerr J) address a consultation issue from para 131, state the basic principles as follows:-

“152. The law governing the obligation to undertake public consultation is now reasonably well settled. A public body or decision maker owes no general duty in all cases to consult interested persons before deciding upon a measure. But the decision maker may become subject to such a duty in certain circumstances. A duty to consult may be enacted by a statutory provision. If the duty is statutory, the scope of the obligation is determined primarily by the terms of the statute. The process ordained in the statute must be followed and must, in addition, be undertaken in a fair manner.

153. A duty to consult may arise at common law in the second, third and fourth cases identified in the judgment of the Court in R (on the application of Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 (Admin), at paragraph [98(2)] where: (i) there has been a promise to consult; (ii) there has been an established practice of consultation; and (iii) where exceptionally a failure to consult would lead to conspicuous unfairness…

154. It is however common ground that where a consultation exercise is carried out voluntarily, it must be carried out “properly and fairly” …

155. Not every process of communication and discussion by a public body with chosen interlocutors engages an obligation to carry out a full consultation exercise meeting the requirements of the Gunning criteria …”

“159. It is important to recognise the purpose of public consultation … its purpose “has various strands”: first, to improve the quality of decision making; secondly, to ensure fairness is accorded to those who may be affected by a regulatory change and to avoid the sense of injustice they may feel if they are not consulted; and thirdly, as “part of a wider democratic process” …

160. Thus, the purpose of consulting goes beyond merely informing the reasoning in support of the eventual decision. Consultation should ensure that the decision is both of high quality and justly reached. Fairness in carrying out a consultation is part of procedural fairness in decision making more generally. In Plantagenet, the Divisional Court treated the common law duty to consult as part of a wider common law duty of fairness, sitting alongside the two other common law duties …: to make sufficient enquiry and to have regard to relevant considerations.

161. As in other contexts where procedural fairness is at issue, what fairness demands will depend on the facts of the case and the context. Whether those demands have been satisfied in a particular case is a matter for the court, not the decision maker.”

“170. The Gunning criteria [do not] necessarily embody the totality of the requirements in all cases where consultation is undertaken on a voluntary basis. The criteria are valuable and might cover very many cases but the test is ultimately one of fairness, a “protean concept”…

171. We start with a question: who must be consulted? The answer to this is context sensitive, in a statutory consultation, the legislation may provide the answer, which may be such persons as the decision maker considers appropriate, or some similar formulation. In such cases, it is for the decision maker to decide, subject to rationality, who is appropriate to be consulted. The Court would not interfere merely because other persons not selected, could have been found appropriate.

172. In other cases, there might be no statutory duty to consult or even no duty to consult at all. …”

“181. … we take the law to be as stated by Elias LJ in the Milton Keynes case: there may be circumstances where a voluntary but selective consultation exercise will render a decision taker pursuant to it unlawful. Such cases might be relatively rare. The Court will tread with care in characterising as a consultation a process of Government engagement with those from whom it seeks advice.”

“184. Ground IV succeeds. A voluntary consultation was undertaken. It was however one-sided and not fairly carried out. For this reason it was procedurally unfair and unlawful.”

The interest of the case is not confined to consultation. At paragraph 115 the Court said:-

“The principles of Parliamentary sovereignty and the separation of powers have their genesis in the common law and it the duty of the courts to protect those principles…

The issue … is whether those constitutional principles are violated when the Executive uses a statutory power to make subordinate legislation for an object and purpose which it has earlier failed to achieve by primary legislation.”

The answer (paragraph 118) was: “No”.

 

NATIONAL PROCUREMENT POLICY STATEMENT

May 16th, 2024 by James Goudie KC in Decision making and Contracts

The Cabinet Office has issued and presented to Parliament at National Procurement Statement (the NPPS), setting out “the strategic priorities for public procurement and how contracting authorities can support their delivery”.  It is due to come into effect on 28 October 2024.  That will be alongside the introduction of the Procurement Act 2023.  The NPPS identifies national priorities to which contracting authorities should have regard in exercising their functions relating to procurement.  These relate to value for money, social value, SMEs, commercial and procurement delivery, and skills and capability for procurement.

Value for money must be placed at the forefront of all procurement activities: para 8.

As regards Social Value the NPPS states:-

“10.     All contracting authorities should have regard to the following outcomes in their procurement activities, alongside any additional local priorities, where it is relevant to the subject matter of the contract and proportionate to do so:

  • Creating resilient businesses and opportunities for quality employment and skills development.
  • Improving innovation, supply chain resilience and security of supply.
  • Tackling climate change and reducing waste.
  1. There are a number of ways that contracting authorities can implement these outcomes, for example, changes to the way the procurement is structured or the process carried out, the specification of the goods, services or works to be purchased, or the award criteria which will determine the most advantageous tender.
  2. Whilst it can be beneficial to consider such additional benefits, achieving them without overburdening suppliers is crucial. Contracting authorities should ensure that they do not place onerous requirements on suppliers, or use disproportionate clauses in tenders and contracts.  For example, contracting authorities should not ‘gold-plate’ the Equality Act 2010 by setting unnecessary diversity reporting or ‘equality, diversity and inclusion’ requirements for the private and voluntary sectors.”

As regards SMEs, the NPPS states:-

“13.     Small and medium-sized enterprises (SMEs) are the backbone of our economy. It is vital contracting authorities support businesses to achieve sustainable growth and open up public procurement opportunities to more SMEs, voluntary, community and social enterprises (VCSEs) creating a thriving, competitive marketplace.  SMEs not only play a key role in communities by providing a local service and employment but can also offer innovative solutions to public service delivery.

14.       Contracting authorities should ensure that they level the playing field for SMEs, VCSEs and start-ups to compete in public procurement by reducing and removing barriers in the procurement process.”