Familiar principles in relation to consultation are restated in R (BETTER STREETS FOR KENSINGTON AND CHELSEA) v KENSINGTON AND CHELSEA RLBC (2023) EWHC 536 (Admin), in which it is held that there was no duty on the local authority to consult before deciding whether to reinstate temporary cycle lanes that it had removed.

The Court would be cautious about inferring that a duty to consult had arisen in the case of a democratically elected public authority (para 37). A duty to consult might arise where there had been an established practice of consultation, or where, in exceptional circumstances, not consulting would lead to conspicuous unfairness (para 38).

Even where, in a rare case, a common law duty to consult arose, the authority would have considerable leeway to decide the nature of the consultation exercise (para 39). A finding that a consultation exercise was unlawful by reason of unfairness would be based on a finding that something had gone clearly and radically wrong (para 40). An action founded on alleged breach of promise had to demonstrate not just a broken promise but also unfairness amounting to an abuse of power (para 44).

In deciding whether anything had gone wrong, a Court would have regard to the GUNNING/COUGHLAN/MOSELEY criteria (paras 41-43 inc and 47).

BOXXE Ltd v SoS for JUSTICE ( 2023 ) EWHC 533 ( TCC ) is useful in relation to the adequacy of damages and applications to lift automatic sanctions, and in relation to the approach tp calculating the limitation period in procurement disputes and when it is that knowledge of the grounds of challenge arises.

In R (Blacker) v Chelmsford City Council (2023) EWCA Civ 25 the Court of Appeal holds that a local authority’s Planning Committee had not breached the “ principle of consistency” in decision-making by refusing to grant planning permission for a development despite having previously indicated that it was “minded” to grant permission. The initial indication was just that. It was not a substantive decision. Having given it, the Committee’s decision was to defer the application for consideration at a subsequent Meeting. All options were left open.

The Committee had acted in accordance with the authority’s statutory Constitution. The Constitution required deferment because approval involved rejecting the Planning Officer’s Recommendation.

The importance of consistency in decision-making means that when there has been a previous decision to grant or refuse planning permission in respect of the same site that is capable of being a material consideration on a later application; and if the decision-maker is minded to depart from the previous decision it has to engage with the reasons for that decision and explain its departure from them.

However, the principle of consistency was not engaged. That was because there had been no earlier substantive decision.

The deferral requirement in the Constitution aimed to give the decision-making Committee the opportunity to stand back and think twice about the implications of rejecting an Officer Recommendation. That was the process that the Committee had duly followed.

In MALIK v HUSSAIN (2023) EWCA Civ 2, concerned with exchange of land contracts, at paras 40 &42 the Court of Appeal affirms that the question of interpretation of a contract is, and must be kept, distinct from the issue of whether terms are to be implied into the contract. The process of implication involves a rather different exercise than that of interpretation.  The express terms must be interpreted before one can consider the question of implication. The appropriate course is first to interpret the express provision , carrying out the unitary exercise and adopting the iterative approach identified and explained in the Supreme Court in WOOD v CAPITA, it being unimportant whether one starts with the factual background and the consequences of rival constructions or a close examination of the relevant language in the contract. constructions

The Procurement Bill completed its Lords Stages on 13 December 2022. Its Second Reading in the House of Commons is scheduled for 9 January 2022. The House of Commons Library has on 20 December 2022 issued a Research Briefing on the Bill.

The Procurement Bill has reached its Report Stage in the House of Lords. The Government has tabled further amendments. These include : –

• A new duty on the face of the Bill to require contracting authorities to have regard to the participation of SMEs.
• Making it clear that CAs may not generally require audited accounts to test the financial standing of bidders as part of the conditions of participation, or insurance relating to the performance of the contract to be in place before the award of the contract.
• A new statutory duty on the Government to provide a central digital platform, free of charge.
• Raising contract thresholds for publication of information.
• Changing the test for conflicts of interest.
• Implementing Recommendations of the Delegated Powers and Regulatory Reform Committee Report on 14 June 2022.

An employment contract contains an express term conferring a contractual right for the employee to appeal against disciplinary action by the employer including dismissal. If the appeal is successful the dismissal is treated as of no effect. There has been a vanishing dismissal. Both employer and employee are contractually bound to treat the dismissal as having no effect and the employment relationship as having remained in existence throughout. The employee cannot claim that there has been an unfair dismissal and does not have an option whether to return to work or not.

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The extent to which an existing contract can be varied and the same contract continue as varied and when the purported variation or modification will amount to there being a new contract is a question that arises in at least two contexts.  One situation is in relation to the procurement of contracts and the EU driven public procurement regime. That is governed by that statutory regime. The other situation is when the question is governed by the common law of contract. It was the latter with which the Court of Appeal were concerned in Cobalt Data Centre v HMRC (2022) EWCA Civ 1422.

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Individual contracts of employment between local authorities and other bodies as employers and their employees commonly incorporate provisions from collective agreements with Trade Unions. To the extent that happens individual employees can seek rectification of the provisions on usual contractual principles. However, However, the collective agreements as such will not generally provide that they are legally enforceable. Then the Trade Union will not be able to seek rectification. That is because collective agreements are not themselves legally enforceable save where they so provide : Section 179 of TULRCA 1992. The equitable remedy of rectification is available only in respect of legally enforceable agreements : the Court of Appeal in Tyne & Wear Passenger Transport Executive v RMT (2022) EWCA Civ 1408.

Who, for the purposes of a duty to consult before making a decision, is involved in or “affected by” a proposal? This was considered by Kerr J in R ( RDAG ) v Neath Port Talbot CBC (2022) 2674 (Admin). It is primarily an “evaluative factual judgment” to be made by the decision-maker: para 107. It is not for the Court to interfere with that judgment unless the authority misdirects itself or otherwise errs on established public law principles. The authority must, however, direct itself in accordance with the true meaning of “affected” when that concept is relevant. In those circumstances the meaning is for the Court tom determine, objectively.

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