A Professional Conduct Panel (“the PCP”) of the Teaching Regulation Agency (“the TRA”) conducted a hearing to consider events and whether they required consideration by the Secretary of State for Education (“the SoS”) of a Prohibition Order preventing a teacher from pursuing his career. The PCP recommended such prohibition.  The SoS followed that recommendation.  It was his decision to make a Prohibition Order.

In Lone v SoS (2019) EWHC 531 (Admin) the teacher appealed. One of his grounds of appeal was alleged procedural irregularity, not on the part of the PCP or of the SoS, but rather on the basis that the Chief Executive of the TRA (“the CEO”) was acting as a judge in his own cause, and was automatically disqualified, in accordance with the Pinochet case, or that his position created an appearance of bias such as to vitiate the decision.  This ground failed. Read more »

In Cases T-439/17 and T-450/17, Yellow Window v EIGE and Eurosupport v EIGE, the EU General Court gave Judgment on 5 March 2019 in relation to a tender procedure for the provision of a public service.  The cases arose out of the obligation to state reasons for the rejection of tenderers’ bids. The Court reiterated that the duty to state reasons is an “essential” procedural requirement.  It is distinct from the question whether the grounds given are correct.  The Court said:-

“… the obligation to state reasons laid down in Article 296 TFEU presupposes that the reference to the strengths and weaknesses of a tender enables the tenderer concerned to understand the marks awarded in the light of the criteria and sub-criteria of the specifications … A correlation must therefore exist between comments identifying strengths and weaknesses, on the one hand, and the marks awarded in relation to those criteria and sub-criteria, on the other hand. Moreover, the statement of reasons must show clearly and unequivocally the reasoning of the author of the act, in such a way as to allow (i) interested parties to know the justifications for the measure taken in order to assert their rights and (ii) to enable the Court to exercise its power of review … More specifically, Article 113(2) of the Financial Regulation requires the contracting authority to provide the tenderer with the real reasons for the rejection of its tender. A statement of reasons which does not identify the true basis of the decision rejecting a tender and which does not faithfully reflect the manner in which the rejected tender was assessed is not transparent and does not satisfy the obligation to state reasons laid down by the latter provision …

 It follows from the foregoing that, failing a justification which is neither consistent nor unequivocal nor transparent, the mark awarded to a tender on the basis of which it will be classified must, as a matter of principle, be a reflection of the strengths and weaknesses identified by the evaluators in their comments.”

In R (RD) v Worcestershire County Council (2019) EWHC 449 (Admin), Nicklin J, dealt with the law on legitimate expectation from paragraph 75 of his Judgment.  He found that frustration of a legitimate expectation was not lawful.  He said:-

Paragraph 77: It may be difficult to decide whether a promise should be considered as inducing a procedural legitimate expectation or a substantive legitimate expectation;

Ibid:  In both cases, if the legitimate expectation is established, the Court will require the promise to be fulfilled, unless there is an “overriding reason” to resile from it;

Ibid: The question is whether the frustration of the expectation is “so unfair that it amounts to an abuse of power”; Read more »

In the matter of an application by Geraldine Finucane for Judicial Review (Northern Ireland) (2019) UKSC 7 considers substantive legitimate expectation from paragraph 55.  Lord Kerr on behalf of the Supreme Court concluded:-

“62.     From these authorities it can be deduced that where a clear and unambiguous undertaking has been made, the authority giving the undertaking will not be allowed to depart from it unless it is shown that it is fair to do so. The court is the arbiter of fairness in this context. And a matter sounding on the question of fairness is whether the alteration in policy frustrates any reliance which the person or group has placed on it. This is quite different, in my opinion, from saying that it is a prerequisite of a substantive legitimate expectation claim that the person relying on it must show that he or she has suffered a detriment.”

“64.    The onus of establishing that a sufficiently clear and unambiguous promise or undertaking, sufficient to give rise to a legitimate expectation, is cast on the party claiming it …” Read more »

In R (United Cabbies Group (London) Ltd v Westminster Magistrates Court (2019) EWHC 409 (Admin) a Divisional Court reiterated principles relating to two categories of bias: presumed bias; and apparent bias. The Court said:-

36. The applicable principles are not in doubt.

Presumed Bias

i) Where a judge has a direct pecuniary or proprietary interest in the outcome of a case, he or she is automatically disqualified, whether or not that interest gives rise to a reasonable apprehension of bias …

ii) The rationale of the rule is that “a man cannot be a judge in his own cause”. That being so, the rationale disqualifying a judge applies just as much if the judge’s decision will lead to the promotion of a cause in which the judge is involved together with one of the parties …

Read more »

On 22 February 2019, the Cabinet Office has issued a Procurement Policy Note (“PPN”) on “Applying Exclusions in Public Procurement, Managing Conflicts of Interest and Whistleblowing” to “deepen understanding” and “supplement and strengthen existing practices”.

An accompanying Information Note explains:-

“When the UK leaves the EU the public procurement regulations will remain broadly unchanged. If the UK leaves the EU with a deal, the existing scheme of UK procurement rules, which implement the EU public procurement directives, will be preserved under the European Union (Withdrawal) Act 2018. If the UK leaves the EU without a deal, the current regulations will be amended to ensure they remain operable and functional on exit.”

The PPN itself addresses Mandatory Exclusion (paragraphs 3-7 inclusive, PCR Regulation 57), Discretionary Exclusion (paragraphs 8-10 inclusive, Regulation 57), Self-declaration of status against the exclusion grounds (paragraphs 11-14 inclusive, Regulation 59), Verification (paragraphs 15-18 inclusive, Regulations 57, 59 and 60), “self-cleaning” (paragraphs 19-21 inclusive, paragraph 57) Conflicts of Interest (paragraphs 22-27 inclusive, Regulations 24, 41, 57 and 84), and “Whistleblowing” (paragraphs 28 and 29).

Paragraph 17 of the PPN emphasizes as follows:-

“In-scope Organisations must request up to date evidence from the winning bidder before award of the contract. If the supplier fails to provide the required evidence within set timeframes, or the evidence demonstrates that a mandatory exclusion ground applies, the award of the contract should not proceed.”

Whether an agreement was complete and enforceable despite there being no express identification of the event which would trigger the payment obligation was one of the issues before the Supreme Court in Wells v Devani (2019) UKSC 4.  This gave rise to questions whether there was a binding contract and as to whether there was an implied term.

The Supreme Court said as regards whether there was a binding contract:-

“17.    The question whether there was a binding contract between Mr Devani and Mr Wells required a consideration of what was communicated between them by their words and their conduct and whether, objectively assessed, that led to the conclusion that they intended to create a legally binding relationship and that they had agreed all the terms that the law requires as essential for that purpose….

18. It may be the case that the words and conduct relied upon are so vague and lacking in specificity that the court is unable to identify the terms on which the parties have reached agreement or to attribute to the parties any contractual intention. But the courts are reluctant to find an agreement is too vague or uncertain to be enforced where it is found that the parties had the intention of being contractually bound and have acted on their agreement. …”

Read more »

The prohibition of discrimination based on nationality is enshrined in Article 18 TFEU and Article 21(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’). The broader non-discrimination principle of which it is an expression is among the fundamental values of the EU (Article 2 TFEU), and among the rights protected by the Charter (Article 21). The principle of non-discrimination is a manifestation of the principle of equality of individuals before the law.  The principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way.  Read more »

Dymoke v Association for Dance Movement (2019) EWHC 94 (QB) was a private law contractual action. Nonetheless, an implied duty of procedural fairness was found to exist, in relation to termination of membership of a company, and in particular that the claimant would be informed of complaints or concerns in sufficient detail to enable her to respond to them, and would be given a reasonable opportunity to respond.  That applied not only to the complaints or concerns, but also to the question of whether they justified the sanction of termination of membership: paragraph 65.

In R (MAS) v SoS for DEFRA (2019) EWHC 158 (Admin), Morris J, at paragraphs 53/54, stated the principles of proportionality as follows:-

(1)      Proportionality is a general principle of EU law;

(2)      Its application in any particular case is always highly fact-sensitive;

(3)      It applies to national measures falling within the scope of EU law;

(4)      It applies only to measures interfering with protected interests;

(5)      Protected interests include the fundamental freedoms governed by the EU Treaties;

(6)      Where the issue is the validity of a national measure, it is for the national Court to reach its own conclusion on proportionality; Read more »