GPOC: Wales

March 24th, 2021 by James Goudie QC in Decision making and Contracts

Note the draft General Power of Competence (Commercial Purpose) (Conditions) (Wales) Regulations 2021, pursuant to Sections 24 and 27/28 Of the Local Government and Elections (Wales) Act 2021, requiring amongst other things authorities to prepare and approve a Business Case before using the General Power to do things for a commercial purpose/trading, together with regulatory Impact Assessment, and Welsh Government Consultation Document, for response by 11 June 2021. The General Power comes into force for principal councils on 1 November 2011 and for eligible community councils on 5 May 2022.

 

Procurement

March 4th, 2021 by James Goudie QC in Decision making and Contracts

See Bechtel Ltd v High Speed (HS 2) Ltd (2021) EWHC 448 (TCC) on judicial oversight of procurement and challenges to the outcome of procurement challenges: paras 18-28; confidentiality in litigation concerned with procurement challenges: paras 31-39; evidence from claimant witnesses: paras 135-139; manifest error: paras 256/257; transparency, keeping records, equality of treatment, giving of reasons, proportionality: paras 79, 274-277, 281-333; limitation: paras 339/340; abnormally low tender: paras 456-468; modifications: paras 482-492; and abandonment: paras 506-508.

 

Misrepresentation

February 22nd, 2021 by James Goudie QC in Decision making and Contracts

In Leeds City Council v Barclays Bank (2021) EWHC 363 (Comm) claims for rescission of loans were struck out. The claims arose out of the LIBOR rigging affair of 2012. They were struck out because the claimant local authorities could not show that they relied on the representations which they allege were made. Cockerill J ruled, at paras 65 and 102, that proof of “understanding” of the representation in the sense of which complaint is later made, is a constituent part of a misrepresentation claim.

 

Transparency

February 22nd, 2021 by James Goudie QC in Decision making and Contracts

R (Good Law Project) v SoS for Health and Social Care (2021) EWHC 346 (Admin) concerned the award of contracts relating to Covid-19. The SoS was in breach of the PCR 2015 Regulation 50 obligation to publish a Contract Award Notice. Chamberlain J said at para 140 that this obligation “serves a vital public function”. It is no less important during a pandemic. It is particularly important where contracts have been awarded without an open advertised tender process.

 

Workers

February 19th, 2021 by James Goudie QC in Decision making and Contracts

The Supreme Court has confirmed, in Uber v Aslam (2021) UKSC 5, at para 133, that time spent “on call “counts as “working time “if the worker is required to be at or near their place of work. The leading case remains Case C-518/15, Ville de Nivelles: retained firefighters’ standby time at home is working time: (2018) IRLR 457. On the national minimum wage Judgment is still awaited from the Supreme Court in Royal Mencap Society v Tomlinson- Blake.

 

 

Legitimate Expectation

January 26th, 2021 by James Goudie QC in Decision making and Contracts

In order for a practice to give rise to a legitimate expectation the practice must be tantamount to a clear and unambiguous representation. It must be so unambiguous, so widespread, so well-established and so well-recognised as to carry within it a commitment to a relevant group of treatment in accordance with it. It must be impliedly tantamount to a promise and the practice must be consistent. So reaffirmed by Fordham J in Havant Biogas Ltd v Gas and Electricity Markets Authority (2021) EWHC 84 (Admin) at para 60.

 

COVID-19 and Contracts

January 25th, 2021 by James Goudie QC in Decision making and Contracts

Westminster City Council v Sports and Leisure Management Ltd (2021):EWHC 98(TCC) concerns the contractual allocation of risk in respect of losses under a leisure services contract arising from the covid-19 pandemic lockdowns. There was for the purposes of the contract a “ specific change in law”. The issue was as to to the consequences. Kerr j gave a detailed Judgment and granted declarations.

 

Miscellaneous

January 20th, 2021 by James Goudie QC in Decision making and Contracts

See United Trade Action Group v TfL (2021) EWHC 72 ( Admin ), a case concerned with taxis as a form of public transport, at paras 94-99 and 165/166 on the exercise of traffic management powers, at paras 102-107 on relevant considerations and policies, at paras 175-177 on the PSED, at paras 197-207 on ECHR Art1/1, and at paras 219-226 and 249-251 on legitimate expectation.

 

Public Procurement

December 29th, 2020 by James Goudie QC in Decision making and Contracts

The 1246 pages Brexit deal has some procurement rules. The UK’s initial offer was to reaffirm its existing commitments in the WTO’s Government Procurement Agreement. The eventual trade deal builds on the GPA rules and extends the coverage of sectors beyond the GPA, including education. The deal sets out basic rules on competitive tendering that are simpler and less prescriptive than EU Directives, and includes a requirement for there to be an impartial authority to assess challenges to contract awards.

 

Consultation

December 3rd, 2020 by James Goudie QC in Decision making and Contracts

In R ( MP ) v SoS for Health and Social Care (2020) EWCA Civ 1634, dismissing an appeal from Lewis J, as he then was, the Court of Appeal observed :-

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