Contractual Interpretation

April 1st, 2019 by James Goudie QC in Decision making and Contracts

The issue before the Court of Appeal (Longmore, David Richards and Leggatt LJJ) in Merthyr (South Wales) Ltd v Merthyr Tydfil County Borough Council (2019) EWCA Civ 526 was one of interpretation of a contract to establish an escrow account.

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Officer reports to committee

March 27th, 2019 by James Goudie QC in Decision making and Contracts

In Thompson v Conwy County Borough Council (2019) EWHC 746 (Admin) Dove J addressed at paragraphs 20-22 inclusive the law relating to the discretion whether or not to grant planning permission, and at paragraph 24 the legal principles governing an allegation that members have been misled by the advice which they have received from their officers.  In that latter connection Dove J said:-

“Firstly, the case-law has made clear that it is a reasonable inference where members follow the recommendation of their officers that they can be taken to have adopted the reasoning and explanation provided in the Committee report and any other presentation to them by officers. When approaching the examination of the Committee report the courts have made clear that criticisms will not merit consideration unless the overall effect of the report has been to significantly mislead the Committee about the material considerations bearing on their decision. Reports should also be approached on the basis that they are being read by a knowledgeable readership in the form of a Planning Committee of trained council members, with a substantial local background knowledge of the area which they represent and a broad familiarity with local development plan policies. Thus officer reports should be read as a whole and in a common sense manner, bearing in mind they are addressed to an informed readership rather than construed as a statute or other similar legal instrument, and that they were intended to be a practical decision-taking tool.”

 

Employment Contracts

March 19th, 2019 by James Goudie QC in Decision making and Contracts

In North West Anglia NHS Foundation Trust v Dr Andrew Gregg (2019) EWCA Civ 387 it was held that the employer was not entitled to withhold pay during a period of suspension not imposed by way of sanction. Coulson LJ said, at paragraphs 69 and 71, that, in a situation where the contract does not address the issue of pay deduction during suspension, the default position should be that, in the ordinary case, where allegations are disputed, suspension should not attract the deduction of pay.

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Legitimate Expectation

March 19th, 2019 by James Goudie QC in Decision making and Contracts

In R (Alliance of Turkish Businesspeople Ltd) v SSHD (2019) EWHC 603 (Admin) issues were raised about a substantive legitimate expectation derived from published guidance and a change of policy by SSHD. The claim for judicial review was dismissed. The Judge did find both that there was a “clear and unambiguous”

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Budget Decision-Making

March 19th, 2019 by James Goudie QC in Decision making and Contracts

R (Hollow) v Surrey County Council (2019) EWHC 618 (Admin) is now the leading case on challenges to local authority budgets. The challenge failed on all grounds. It was particularly focussed on savings in relation to special educational needs and disabilities (“SSEND”).
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Consultation

March 13th, 2019 by James Goudie QC in Decision making and Contracts

In Stephenson v SoS for MHCLG (2019) EWHC 519 (Admin) Dove J, from paragraph 35 to paragraph 62, applied familiar principles as to the requirements to be satisfied by a lawful consultation exercise, the parameters which need to be observed in order to ensure that the consultation is one which is lawful. He found the

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Ratification

March 12th, 2019 by James Goudie QC in Decision making and Contracts

Causwell v General Legal Council (2019) UKPC 9 concerns whether disciplinary proceedings commenced by a person purporting to do so as agent for the complainant, but without the complainant’s authority, are capable of being made good by ratification by the complainant, or whether they are a complete nullity incapable of ratification. The question turns upon the principles of the law of agency relating to ratification and the true construction of relevant legislation. Read more »

 

Bias

March 11th, 2019 by James Goudie QC in Decision making and Contracts

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 »

 

Rejection of a tenderer’s bid

March 6th, 2019 by James Goudie QC in Decision making and Contracts

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.”

 

Legitimate Expectation

March 1st, 2019 by James Goudie QC in Decision making and Contracts

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 »