The Cabinet Office has published a note entitled “Procurement Policy Note – Responding to COVID-19”, PPN 01/10.  It says

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A Procurement Policy Note has been published on 18 March 2020 on responding to COVID -19, and in particular, but not only, using the urgency derogation in PCR Reg 32(2)(c) and other procurement Regs : “designed to deal with this sort of situation”; “not something that was foreseeable”. The Note emphasises that in order to use this exemption the contracting authority must be able to demonstrate genuine reasons for extreme urgency and satisfy other conditions, and keep a written record of the justification and achieve value for money.

Regulation 12(4)(e) of the Environmental Information Regulations provides that a public authority may refuse to disclose information to the extent that the request involves the disclosure of “internal communications”.  Regulation 12(5)(f) provides that a public authority may refuse to disclose information to the extent that its disclosure would “adversely affect the interests of the person who provided that information” in specified circumstances.  “Would adversely affect” should be interpreted in the sense that the “adverse effect” has to be identified, and the disclosure “would” have that adverse effect, not “could” or “might”.  If the conditions of 12(4)(e) and/or (5)(f) are met, then the information must be disclosed only to the extent that, in all the circumstances, the public interest in maintaining the exception outweighs the public interest in disclosure.  These conditions have been considered by the FTT in Middlesborough Council v ICO, EA/2019/0108.

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The celebrated decision of the House of Lords in R v Tower Hamlets LBC, ex parte Chetnik Developments Limited (1988) AC 858 is justifiably well known for its robust affirmation of the principle that there is no such thing in public law as an unlimited or unrestricted discretion. Linked to this was the endorsement, at pages 874H-877Q, of the principle in Ex parte James (1874) L.R.9 Ch. App. 609 that a public body must act in a “straightforward”, “high-minded”, and “high-principled” way.

The principle in Ex parte James has now been considered by the Court of Appeal in Lehman Brothers Austria Ltd (In Liquidation) v Macnamara (2020) EWCA Civ 321. The threshold test for the invocation of the principle, on an objective basis, is “fairness”, procedural and substantive, rather than unconscionability, on the particular facts of a case; and the principle applies to reliance upon legal rights, including contractual rights: paragraphs 38, 64-69 inclusive, 87-90 inclusive, and 105/106.

Ryhurst Ltd v Whittington Health Trust (2020) EWHC 448 (TCC) is a procurement case in which the Claimant challenged a decision by the Trust to abandon a procurement exercise for a 10 year strategic estates partnership contract, in circumstances where the Trust had previously made a decision to award this contract to the Claimant.  The challenge failed.

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The decision of Swift J in Williams v Caerphilly Council, noted in this Bulletin on 29 June 2019, has been upheld by the Court of Appeal: (2020) EWCA (Civ 296).  Cabinet had the power to adopt a Sports and Recreation Strategy. This was not a decision that had to be taken by Full Council. The default position applied. A distinction is to be drawn between approval of a plan and its implementation. The adoption of the 10 year Strategy was not concerned with the Council’s annual budget or its capital expenditure plan. Future closure and other decisions would be distinct matters that would need to be considered on their own merits.  There was nothing in the Strategy to say that the closure of any existing facility would inevitably happen, let alone that it would happen in the then current financial year.

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In order for there to be a substantive or procedural legitimate expectation based on a practice, what is required is that there must be a practice which is impliedly tantamount to a practice.

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Uddin v London Borough of Ealing, UKEAT/0165/19/RN, concerned the dismissal of the Claimant by reason of misconduct.   One of the issues arose from the fact that the complainant who alleged inappropriate sexual behaviour towards her by the Claimant had withdrawn a complaint to the police, but the Council’s manager, who took the decision to dismiss, who knew that the complaint had been made, was not told by the Council’s investigating officer that the complaint had been withdrawn.  The EAT held that the fact that the investigating officer, who did know the complaint had been withdrawn, did not pass this on to the disciplinary decision maker, rendered the dismissal unfair, applying Royal Mail v Jhuti (2019) UKSC 55, on the reason for the dismissal, to the reasonableness of the dismissal decision: see Judge Auerbach in the  Ealing case at paragraphs 71-78, concluding, with respect to Jhuti in the Supreme Court:-

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Ishola v Transport for London (2020) EWCA Civ 112 is concerned with the meaning of “provision, criterion or practice” (“PCP”) in Sections 20 and 21 of the Equality Act 2010, one of the three requirements in the creation of a duty to make “reasonable adjustments” in respect of a disabled person. A PCP is also part of the definition of “indirect discrimination” in Section 19 of the Act, but is not defined in the Act, or in its predecessory legislation.

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