In Electronic Collar Manufacturers Association v SoS for DEFRA (2019) EWHC 2813 (Admin) Morris J considered a number of consultation and other challenges. He summarised general principles on consultation at paragraph 27. From paragraph 109 he addressed together consultation and appearance of pre-determination. He said as to the law:-
Concession Contracts
October 8th, 2019 by James Goudie KC in Decision making and ContractsIn OCEAN OUTDOOR UK LTD v LONDON BOROUGH OF HAMMERSMITH AND FULHAM (2019) EWCA Civ 1642 the Court of Appeal has dismissed Ocean’s appeal from O’Farrell J’s Judgment dismissing Ocean’s claim that the Concession Contracts Directive and Regulations applied to two leases of land owned by the Council either side of the Hammersmith Flyover on which are situated substantial structures which support large digital advertising screens. The Court of Appeal confirmed (1) that the leases were not “services” concessions contracts, (2) that they were not contracts “for pecuniary interest”, and (3) that in any event the land exemption applied. As to (1), the Directive and Regulations relate to services which are for the benefit of the contracting authority or its residents, in furtherance of the authority’s strategic objectives or to satisfy their statutory obligations. As to (2), an essential requirement of a contract for pecuniary interest is that the contractor assumes a legally enforceable obligation to carry out the services. As to (3), the land exemption is wide: the leases were genuine leases and agreements for the rental of land.
GPOC
October 7th, 2019 by James Goudie KC in Decision making and ContractsIn QUALTER v PRESTON CROWN COURT AND CHESHIRE WEST AND CHESTER COUNCIL (2019) EWHC 2563 (Admin) a Divisional Court emphasised the breadth of the General Power of Competence under Section 1 of the Localism Act 2011 as compared with the well-being power under Section 2 of the Local Government Act 2000. GPOC authorised a trading standards investigation into energy brokers. Investigations into fraudulent activity are not subject to the expediency test in Section 222(1) of the Local Government Act 1972 : they are different in this respect from a prosecution. The Court said that it is clear from the terms of Section 1 of the Localism Act that Parliament intended that the powers of local authorities should be “ widened” ( but not unfettered ). “ Any Court must be very slow to interfere with a local authority’s exercise of their general power. “
Closure of Children Centres
August 22nd, 2019 by James Goudie KC in Decision making and ContractsOn 19 August 2019 Hickinbottom LJ refused the Claimant permission to appeal from the decision of Andrews J in R ( LF ) v BUCKINGHAMSHIRE COUNTY COUNCIL (2019) EWHC 1817 ( Admin), Local Government Bulletin 12 July 2019. Section 5D of the Childcare Act 2006 does not diminish the entitlement of a local authority to consult only on options it proposes.
Remedies for Breach
August 2nd, 2019 by James Goudie KC in Decision making and ContractsIn AEW Europe Ltd v Basingstoke & Deane BC (2019) EWHC 2050 (TCC) it was held that a declaration of ineffectiveness was not available in the circumstances. In Stagecoach v SoS for Transport (EWHC) 2047 (TCC) the Court considered limitation for private and public law claims and abuse of process.
Remedies for Breach
August 2nd, 2019 by James Goudie KC in Decision making and ContractsIn AEW Europe Ltd v Basingstoke & Deane BC (2019) EWHC 2050 (TCC) it was held that a declaration of ineffectiveness was not available in the circumstances. In Stagecoach v SoS for Transport (EWHC) 2047 (TCC) the Court considered limitation for private and public law claims and abuse of process.
Consultation
July 12th, 2019 by James Goudie KC in Decision making and ContractsIn R (LF) v Buckinghamshire County Council (2019) EWHC 1817 (Admin) a judicial review challenge failed to a decision by the Council, by its Cabinet, to close 19, and retain 16, of its Children’s Centres, whilst ensuring the continuing use of the closed Centres for early years and community benefit. Andrews J was satisfied that the Council had carried out a fair Consultation before Cabinet made its decision, that it took the responses properly into account, and that it complied with all its relevant statutory duties.
There was an obligation on the Council under Section 5D of the Childcare Act 2006 to “secure that such consultation as they think appropriate” was carried out before any change was made in the services to be provided through a Children’s Centre or before the closure of any such Centre. Andrews J said (paragraph 34) that gave the Council “a wide discretion as to what the consultation should comprise”, subject only to the requirements of statutory Guidance. Read more »
Executive Functions
June 26th, 2019 by James Goudie KC in Decision making and ContractsIn Williams v Caerphilly County Borough Council (2019) EWHC 1618 (Admin) the Claimant challenged two decisions taken by the Council, which operates executive arrangements: a Cabinet decision to adopt a Sports and Active Recreation Strategy for 2019-2020 (“the Sports Strategy” and “the Strategy Decision”); and a further and later Cabinet decision to close a Leisure Centre (“the Closure Decision”).
As regards the Strategy Decision, the first ground of challenge was that the Strategy Decision was unlawful because it was taken by Cabinet, when it should have been taken by Full Council, pursuant to the Local Authorities (Executive Arrangements) (Functions and Responsibilities) (Wales) Regulations 2007 (“the 2007 Regulations”). Read more »
Abandonment of Procurement
June 4th, 2019 by James Goudie KC in Decision making and ContractsOne of the issues in Amey Highways Ltd v West Sussex Council (2019) EWHC 1291 (TCC) was whether or not the Council had lawfully abandoned a procurement. Stuart-Smith J stated relevant general principles as follows:
Suspension of Contract
May 22nd, 2019 by James Goudie KC in Decision making and ContractsKenson Contractors v Haringey LBC (2019) EWHC 1230 (Admin) was an application made by the Claimant contractor, for an interim injunction against the Council to suspend its decision to award or execute a road-improvement contract to the Interested Party, Marlborough Highways Limited (“MHL”). Kenson came second in the procurement exercise for that contract and MHL came first. Because of the value of the contract (some £630,000 plus VAT) this procurement exercise was well below the threshold for the operation of the otherwise relevant parts of the Public Contracts Regulations 2015. The underlying claim was brought by way of judicial review (“JR”) of the Council’s decision to award the contract to MHL rather than Kenson.