April 18th, 2024 by James Goudie KC in Decision making and Contracts

In R ( BMA ) v HM TREASURY ( 2024 ) EWCA Civ 355 Elisabeth Laing LJ says at paras 159 – 161 that where there is a legislative scheme that imposes substantial express duties of consultation and the legislation has expressly addressed the exact nature and precise incidence of the duty the Court should be “ very reluctant “ to supplement the scheme with extra consultation obligations unless there is a “ clear legal basis “ for their imposition. At para 160 she says that PLANTAGENET ALLIANCE at para95 is an accurate statement of the circumstances in which a duty to consult will be imposed by the common law.



April 10th, 2024 by James Goudie KC in Decision making and Contracts

In RENTOKIL v MILLER ( 2024 ) EAT 37 Judge Auerbach’s rulings on “ reasonable adjustments “ under the Equality Act 2010 included that ( 1 ) the Act referred simply to “ such steps as it is reasonable to have to take to avoid the disadvantage “ did not attempt to restrict or sub-categorise what form such steps might take in a given stage, ( 2 ) the proposed step did not have to be guaranteed to work, and ( 3 ) for the purposes of a “ reasonable adjustment “ claim it does not matter what went on in the mind of the decision-maker at the time : there is no mental element.



March 19th, 2024 by James Goudie KC in Decision making and Contracts

In R ( Police & Crime Commissioner for West Midlands ) v SSHD (2024 ) EWHC 604 ( Admin )  Swift J considers aspects of the requirements for a fair and lawful consultation. First, at paras 9-20 inc, whether the consultation was undertaken with an open mind, the 1st & 4th GUNNING principles, or. there was a real possibility of predetermination, as distinct from predisposition. Second, at paras 21-42 inc, whether, in the context in which the consultation occurred, sufficient information was given to permit intelligent and informed responses, , the second GUNNING principle.


Affirmation of Contract

November 30th, 2023 by James Goudie KC in Decision making and Contracts

If one party to a contract commits a repudiatory breach of that contract, the other party can choose one of two courses : affirm the contract, and insist on its future performance; or accept the repudiation, in which case the contract is at an end. Affirmation can be express or implied. In BROOKS v BROOKS LEISURE EMPLOYMENT SERVICES LTD ( 2023 ) EAT 137 it is restated that (1) the innocent party must, at some stage, elect between the two courses, (2) if he or she once affirms the contract, the right to accept the repudiation is at an end, (3) he or she is not bound to elect within a reasonable or any other time, (4) mere delay by itself, unaccompanied by any express or implied affirmation of the contract does not constitute affirmation, and (5) if it is prolonged it may be evidence of an implied affirmation.



November 7th, 2023 by James Goudie KC in Decision making and Contracts

The 831 paragraph Judgment in the utility case of SIEMENS v HS2 (2023) EWHC 2768 (TCC) covers amongst other matters scoring challenges, change of control consent, evaluation, including power to seek clarification, abnormally low tender (ALT) review, verification prior to negotiation, pre-contract checks, modification, conflict of interest, adequacy of reason and judicial review. Legal principles on award criteria, equal treatment and transparency, and manifest error are set out between paras 135-146 and 575-577. The power to seek clarification is addressed at paras 511-516. The applicable test for ALT appears at para 559; the legal principles applicable to ascertaining the date when an economic operator first had actual or constructive knowledge of material grounds at paragraphs 731-735; abuse of process at paras 793-797; the adequacy of reasons at paras 817/818; and judicial review claims at paras 825-829. Siemens claim failed in all respects.


Disclosure of Information

November 3rd, 2023 by James Goudie KC in Decision making and Contracts

Disclosure by an authority of information that is requested under FoIA does not apply if the information is “exempt information” under Part 2 of FoIA if or to the extent that it is an absolute exemption or “in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.”  A number of exemptions involve assessing prejudice.  The approach to assessing prejudice is revisited in FANTA v INFORMATION COMMISSIONER (2023) UK FTT 00908 (GRC).  First, the applicable interests within the relevant exemption must be identified.  Second, the nature of the prejudice being claimed must be considered.  It is for the decision maker to show that there is some causal relationship between the potential disclosure and the prejudice, and that the prejudice is “real, actual or of substance”.  Third, the likelihood of occurrence of prejudice must be considered.  The degree of risk must be such that there is a “real and significant risk” of prejudice, or there “may very well” be prejudice, even if this falls short of being more probable than not.



August 2nd, 2023 by James Goudie KC in Decision making and Contracts

In these post-GPOC days, now in Wales as well as England, source of vires issues tend to loom less large, as the localism legislation intends, but questions still crop up as to what may be authorised by the general power in Section 111 of the Local Government Act 1972, in conjunction with some other power. In R ( Ball ) v Hinckley & Bosworth BC (2023) EWHC 1922 ( Admin ) at para 73 a reminder : “ That section has a wide ambit but its scope is not unlimited. “ Where there are provisions expressly defining the way in which a local authority’s particular powers are to be exercised then Section 111 does NOT operate to enable the exercise of those powers in a different way : Sutton LBC v Morgan Grenfell. Similarly, Section 111 CANNOT be used as an “ escape route “ to act in a way that is inconsistent with other statutory provisions “Credit Suisse v Allerdale BC.



July 5th, 2023 by James Goudie KC in Decision making and Contracts

What constitutes a concession? When does a contract come within the Concession Contracts Regulations 2016 rather than the Public Contracts Regulations 2015? Why may it matter? These were issues covered in OCEAN OUTDOOR v HAMMERSMITH & FULHAM LONDON BOROUGH COUNCIL (2019) EWCA Civ 1642 and DUKES BAILIFFS v BRECKLAND COUNCIL (2023) EWHC 1569 (TCC). There are different financial thresholds. There are different procurement procedures. There are different permissible selection criteria.

In the context of a services contract, there are 5 main elements of a concession contract within the 2016 Regulations.

FIRST: the contract concluded in writing must be identified; and not excluded by the land exemption.

SECOND: this contract must be one where a contracting authority entrust to an economic operator for “pecuniary interest” the legally enforceable obligation to provide and manage services to or for the public which the authority would otherwise provide itself for its residents (or someone else).

THIRD: the consideration for the contract must consist either solely in the right to exploit the services or in that right together with payment.

FOURTH: a transfer of “operating risk” must be involved.

FIFTHLY: a real risk of potential loss must be involved.



June 6th, 2023 by James Goudie KC in Decision making and Contracts

The Working Time Regulations 1998 do not rule out all flexibility and modifications. In some circumstances agreements may be concluded to cover a situation. This may be a collective agreement or a workforce agreement and/or it may be a written “ relevant agreement “ or part of the written terms of a contract of employment. Regulation 13 of the WTR relates to entitlement to annual leave, Regulation 13A to additional annual leave, and Regulation 14 to compensation related to entitlement to leave. In CONNOR v CHIEF CONSTABLE OF SOUTH YORKSHIRE (2023) EAT 42 it is held that a “ relevant agreement “ as to the calculation of final holiday pay cannot be an agreement which would permit the employer to pay less under Regulations 13 & 13A in the case of an incomplete leave year than that which would be required under Regulation 14.



May 26th, 2023 by James Goudie KC in Decision making and Contracts

Basic contractual and estoppel principles are reaffirmed by Lewison LJ in McCARTHY v JONES (2023) EWCA Civ 589 at paras 17 and 36 : –

  1. Where a contract is contained in a written document the document will be interpreted without regard to the parties’ subjective understanding of what they had agree.
  2. By contrast, where there is an alleged oral contract, that understanding is admissible, at least to the extent of deciding (i) whether or not the parties had reached a concluded agreement, and (ii) if so, what its terms are.
  3. The principles applicable to the assertion of an estoppel by convention arising out of non-contractual dealings include that there must be words or conduct from which the necessary sharing of a common intention may be inferred.