Contract Procurement

January 17th, 2022 by James Goudie QC in Decision making and Contracts

The topics considered, in the context of a public health crisis, by O’Farrell J. in a 519 paragraph Judgment in R (Good Law Project) v SoS for Health and Social Care (2022) EWHC 46 (TCC) include principles in relation to (1) confidentiality and open justice, (2) equal treatment and transparency, and (3) irrationality.

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Contract Procurement

January 14th, 2022 by James Goudie QC in Decision making and Contracts

The topics considered, in the context of a public health crisis, by O’Farrell J. in a 519 paragraph Judgment in R (Good Law Project) v SoS for Health and Social Care (2022) EWHC 46 (TCC) include principles in relation to (1) confidentiality and open justice, (2) equal treatment and transparency, and (3) irrationality.

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Fundamental Principles

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

In R (Police Superintendents Association) v Her Majesty’s Treasury (2021) EWHC 3389 (Admin) the Judge sets out the principles relating to Consultation at paras 122-130, relating to the PSED at paras 131-138, and relating to Substantive Legitimate Expectation at paras 139-144.

 

Fairness

December 1st, 2021 by James Goudie QC in Decision making and Contracts

There may be a general implied duty upon an employer to act procedurally fairly in the context of disciplinary processes. However, fairness does not impose a general disclosure obligation. See Burn v Alder Hey NHS Trust (2021) EWCA Civ 1791.

 

Derivative Contracts

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

A transaction will not be speculative, and beyond a local authority’s capacity on that account, merely because the value or final outcome is uncertain. A decision to borrow at a floating rate instead of a fixed rate, or vice versa, or to enter into a derivative contract, by way of hedging, is capable of being lawful. See Deutsche Bank v Comune di Busto Arsizio (2021)EWHC 2706 (Comm) at paras 1-3, 84-103, especially 100, 294 and 306.

 

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.