Rectification of Contracts

October 28th, 2022 by James Goudie KC in Decision making and Contracts

Individual contracts of employment between local authorities and other bodies as employers and their employees commonly incorporate provisions from collective agreements with Trade Unions. To the extent that happens individual employees can seek rectification of the provisions on usual contractual principles. However, However, the collective agreements as such will not generally provide that they are legally enforceable. Then the Trade Union will not be able to seek rectification. That is because collective agreements are not themselves legally enforceable save where they so provide : Section 179 of TULRCA 1992. The equitable remedy of rectification is available only in respect of legally enforceable agreements : the Court of Appeal in Tyne & Wear Passenger Transport Executive v RMT (2022) EWCA Civ 1408.



October 25th, 2022 by James Goudie KC in Decision making and Contracts

Who, for the purposes of a duty to consult before making a decision, is involved in or “affected by” a proposal? This was considered by Kerr J in R ( RDAG ) v Neath Port Talbot CBC (2022) 2674 (Admin). It is primarily an “evaluative factual judgment” to be made by the decision-maker: para 107. It is not for the Court to interfere with that judgment unless the authority misdirects itself or otherwise errs on established public law principles. The authority must, however, direct itself in accordance with the true meaning of “affected” when that concept is relevant. In those circumstances the meaning is for the Court tom determine, objectively.

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Equal Treatment and Transparency

October 20th, 2022 by James Goudie KC in Decision making and Contracts

In Case T-717/20, LENOVO v EuroHPC, Judgment on 19 October 2022, the EU General Court says that:-

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Fairness (R (Timson) v SoS for Work & Pensions (2022) EWHC 2392 (Admin))

September 26th, 2022 by James Goudie KC in Decision making and Contracts

In R (Timson) v SoS for Work & Pensions (2022) EWHC 2392 (Admin) Cavanagh J considered the case-law authorities on the circumstances in which written guidance to decision makers may render unlawful the exercise of statutory discretion, the test for judicial review of a policy at common law, the Padfield and Tameside obligations, and, from para 150,  the fairness obligation. He reiterated that the rule is that, BEFORE a statutory purpose is exercised, ANY person who FORESEEABLY would be SIGNIFICANTLY DETERIMENTALLY AFFECTED should be given the OPPORTUNITY TO MAKE REPRESENTATIONS IN ADVANCE unless (1) the statutory provisions concerned expressly or impliedly provide otherwise or (2) the circumstances in which the power is to be exercised would render it 9i) impossible, (ii) impractical or (iii) pointless, any argument in support of which should be VERY CLOSELY EXAMINED. A Court will be SLOW TO OLD that there is no obligation to give the opportunity, when such an obligation is not dispensed with in the relevant statute. Cavanagh J considered common law claims and ECHR rights. As to the latter, he considered whether the claimant was a “victim” for the purposes of Section 7 of the Human Rights Act 1998, and whether there was a breach of the claimant’s rights under Article 1 of the First Protocol, in the context of social security benefits. In a control of use case, just as in a deprivation or expropriation case, a FAIR BALANCE must be struck between the demands of the general interests of the community and the REQUIREMENT of the protection of the individual’s FUNDAMENTAL RIGHTS. The rules of domestic law must be sufficiently ACCESSIBLE,  PRECISE and FORESEEABLE. The fact that the case is concerned with a control of use rather than deprivation of property may be relevant, for example, if may have an impact upon the FAIR BALANCE ISSUE. The fair balance test is addressed at paras 258-261 inclusive. Cavanagh J also considered the question sof “other status”  and comparator for the purposes of Article 14 of the ECHR.


Procurement Damages

September 22nd, 2022 by James Goudie KC in Decision making and Contracts

In Braceurself Ltd v NHS England (2022) EWHC 2348 (Admin) there was a two-horse contract race. The outcome of the procurement competition was very close. Even minor breaches of the procurement regime by the contracting authority could have had a decisive impact on the outcome. There was an actual loss of the contract, not the mere loss of the chance of winning a contract.  There was a breach. The Claimant sought damages. It failed, notwithstanding the “powerful impact” of the breach on the outcome. The breach was held not to be “sufficiently serious” to justify an award of FRANCOVICH/BRASSERIE DU PECHEUR damages. Whether that was the case, in accordance with the House of Lords decision in FACTORTAME, the UK Supreme Court decision in ENERGY SOLUTIONS v NUCLEAR DECOMMISSIONING AUTHORITY and the decision of the Court of Appeal in DELANEY v SoS for TRANSPORT, was the issue. That depended on all the many relevant factors and the individual facts of the case, as recognized by the Court of Appeal in Ocean Outdoor v Hammersmith & Fulham LBC. The impact of the breach on the availability of public services is amongst the relevant considerations. The Judge said, at para 90, that the phrase “sufficiently serious” indicates that a “fairly high threshold” must be passed before it can be said that, in all the circumstances, the test had been satisfied. This was because (1) it was a single breach case, (2) the breach was at the excusable end of the spectrum and minor, (3)the was inadvertent and occurred in good faith, (4) the Defendant’s purpose was a laudable one, (5)  overall the procurement was carefully planned and well-organised, (6) the adverse impact from the breach was limited, and (7) the case was far removed from the multiple breach case in ENERGY SOLUTIONS.



September 5th, 2022 by James Goudie KC in Decision making and Contracts

The Coughlan principles apply within the ambit of a consultation being undertaken. They cannot be used to contend that the scope of the consultation should have been wider. So stated by Holgate J at para 196 in R (BT Pension Scheme Trustees Ltd) v UK Statistics Authority (2022) EWHC 2265 (Admin).



Exclusion from voting

August 31st, 2022 by James Goudie KC in Decision making and Contracts

Exclusion of Committee members from voting was one of the issues in R ( Spitalfields Historic Building Trust ) v Tower Hamlets LBC ( 2022 ) EWHC 2262 ( Admin ). The Judge’s analysis in relation to this begins at para 111. The starting point is that every member of a local authority council or committee has a prima facie entitlement to vote at a relevant meeting. Any restriction of the entitlement requires statutory authority. Where consideration of a planning application is deferred, the two meetings form part of a single decision-making process. A local authority is entitled, by provision in its Constitution, to say that, as far as possible, members should be present for all of that process in order to vote. Such a provision constitutes the regulation of “ proceedings and business “ of the committee, within the power in para 42 of Sch 12 to the Local Government Act 1972.


Damages for Breach of Contract

July 7th, 2022 by James Goudie KC in Decision making and Contracts

In a claim for damages for breach of contract by way of wrongful dismissal of an employee, as in Mackenzie v AA Ltd (2022) EWCA Civ 901, the least burdensome mode of performance, and the least costly method of lawfully terminating the contract, should be adopted. The Court of Appeal holds that it should, for the purpose of determining the employee claimant’s loss, be assumed that the employer would have performed its contractual obligations in the least burdensome way possible. Damages could not confer benefits which the contract did not oblige the employer to confer.


The Procurement Bill

May 25th, 2022 by James Goudie KC in Decision making and Contracts

The Procurement Bill has 13 Parts and 11 Schedules, and runs to 122 pages. Part 1 contains key definitions. Part 2 sets out principles and objectives.

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Exclusion Clauses

April 6th, 2022 by James Goudie KC in Decision making and Contracts

In Soteria v IBM (2022) EWCA Civ 440 the Court of Appeal holds that an exclusion clause, in a contract of sale, which purported to exclude liability, for “indirect or consequential losses, or for loss of profit, revenue or savings”, did NOT preclude the buyer from recovering expenditure that it had incurred in anticipation of the contract, but which was wasted, as a result of the supplier’s repudiation.