In MLS (Overseas) Ltd v SoS for Defence (2017) EWHC 3389 (TCC) O’Farrell J restated the principles as follows:-
(1) Any procurement must be conducted in accordance with the obligations of (i) transparency. (ii) equality of treatment, (iii) procedural fairness, (iv) good administration, and (v) fairness: paragraphs 55 and 58;
(2) Any decision is required to be (i) rational and (ii) free from manifest error: paragraph 58; Read more »
In R (Hutchison 3G UK Ltd) v Telefonica UK Ltd (2017) EWHC 3376 (Admin) Green J said:-
“238. In my judgment the Sedley criteria are not hard and fast rules that can be mechanistically applied so as to lead to a rigid and certain result. They are lodestars guiding the overall assessment that must be made of the facts to see whether addressees of a consultation had, in a real and practical sense, been accorded a fair opportunity to express their views and opinions. The Sedley criteria, by their nature, are not capable of serving as definitive rules; they amount to four broad tests to be applied to the facts of each case. They concern: (i) the point in time at which the consultation must occur; (ii) the sufficiency of the reasons enabling the addressee to understand how to respond; (iii) the sufficiency of the time granted to enable proper responses; and (iv), the taking into account of the facts and matters submitted by consultees. The ultimate litmus test is simply fairness; so how the application of the criteria play out in a particular case will depend upon all of the surrounding circumstances.
The House of Commons Overview and Scrutiny Committee has issued a Report on the “Effectiveness of local authority overview and scrutiny committees”, which proposes revisions to Government Guidance on such committees and makes recommendations.
In Attorney General v River Dorée Holdings Ltd, concerned with a Lease, the Privy Council stated as follows, (2017) UKPC 39.
A recital may in appropriate circumstances serve as background or an introduction informing or assisting the interpretation of a substantive provision in the contract. But the two must at least be capable of being read consistently. No ambiguity can be created from a mere recital which cannot consistently be read together with the substantive and operative parts of the contract concerned. (Paragraph 48).
It is not for any Court to remake the contract of the parties under the guise of interpretation. (Paragraph 51).
Negotiations are not admissible for the purpose of interpretation. (Ibid).
It is significant if there is no claim for rectification, as there might be if there is good evidence available that an interpretation contended for had in fact been the prior agreement of the parties during negotiations and that such agreement had been in existence down to the execution of the contract. (Paragraph 55).
Case C-472/16, Siguenza v Ayuntamiento de Valledolid, in which Advocate General Tanchev delivered his Opinion on 6 December 2017, concerns a music teacher previously employed by a company that had been running a municipal music school, following the school having been run by the municipality directly. The case raised yet again the question under what such circumstances the loss of a service contract to a competitor following a tendering exercise is to be regarded as the transfer of an economic entity so as to require the new contractor to take over staff of the previous contractor. The specific features of the particular case were (1) a concession that expired before the competitor took over, (2) a delay of 5 months before the competitor resumed the activity and (3) the fact that none of the 26 persons employed by the previous employer were taken over, albeit the tangible assets were taken over. The Advocate General concluded that there was no transfer.
There was no economic entity: at the time the school resumed it had ceased to exist as an entity. If there was an economic entity, it did not retain its identity: most of the factors which indicate whether the old and the new entity are identical militated against there being a transfer.
The contract in Dynniq UK Ltd v Lancashire County Council (2017) EWHC 3173 (TCC) concerns the maintenance of traffic signal installations and associated equipment, and the construction of new or replacement traffic signal installations and equipment, in Lancashire. The parties were in dispute as to the proper interpretation of the contract.
Coulson J stated:-
“10. The rules of construction are now well-known: there has been a plethora of cases in the House of Lords and the Supreme Court in recent years in which the relevant rules have been repeatedly set out, including Chartbrook Limited v Persimmon Homes Limited [2009] UKHL 38; Rainy Sky SA v Kookmin Bank [2011] UKSC 50; Arnold v Britton [2015] UKSC 36; and Woods v Capita Insurance Service Limited [2017] UKSC 24. As I have pointed out elsewhere, some practitioners and legal commentators, with nothing better to do, have sought to exploit certain fine linguistic differences between the various judgments in those cases but, in my view, they all point in the same general direction. What matters is the objective meaning of the language used, to be derived from the natural usual meaning of the words in the contract, when seen against the background/context of the contract. Where there are rival interpretations, one test is to consider which interpretation is more consistent with business common sense.”
“12. … It is a well-established principle that the court should endeavour to give effect to all parts of the contract and to treat no part of it as inoperative or surplus: …”
“31. … There is no lack of clarity in the words, and the bespoke amendments will (if there is a clash, which I doubt) take precedence over the standard form of the Method of Measurement …”
In Save Britain’s Heritage v SoS for CLG and Westminster City Council (2017) EWHC 3059 (Admin) Lang J held that there was no duty on the SoS to give reasons for a decision not to call in the controversial planning application for the Paddington Cube development. There had been a practice that could well have given rise to a procedural legitimate expectation that reasons would be given for non-intervention. However, that practice had ceased. There was no longer an established practice to that effect. On the contrary, the established practice had become that reasons would not be given. The earlier practice and statements sought to be relied upon had been superseded. They could no longer found a legitimate expectation that reasons would be given. No misleading representation had been made at the relevant time. Anyone active in planning matters should have been aware of the well-publicised change. If any expectation remained, it had ceased to be a legitimate one. There was no legal requirement to issue a formal statement of the change. Practice and policy are subject to change.
In R (Help Refugees Ltd) v SSHD (2017) EWHC 2727 (Admin) a Divisional Court held that there had been no unfairness in the SSHD’s statutory consultation with local authorities on the requirements relating to the relocation of Unaccompanied Asylum Seeking Children. The test was not whether the consultation process was free from all blemish, but whether the consultation was so unfair as to be unlawful, i.e. whether it reached an appropriate level of fairness, judged in the light of the criteria for a fair consultation. The target audience was knowledgeable, sophisticated, and familiar with refugee issues. There was no reasonable expectation that late responses would be considered. Read more »
Lewis J in R (Lupepe) v SSHD (2017) EWHC 2690 (Admin) considers (paragraphs 48/49) the principle that it is unreasonable, in the public law sense, to disagree with a factual conclusion of an adjudicator who has heard the evidence unless the adjudicator’s conclusion is itself unlawful as a matter of public law (or unless fresh material has become available since the hearing). An illustration of the principle is the decision of the Court of Appeal in R v Warwickshire County Council ex p Powergen (1996) 97 LGR 617 where the Court of Appeal held that a highway authority could not depart from the decision of a planning inspector on a planning appeal that a particular development did not give rise to highway safety issues and it could not act on the basis that the proposed development would create highway dangers.
Lewis J also considered (paragraphs 61-66 inclusive) the position with respect to unpublished policies and (paragraphs 67-69 inclusive) procedural fairness (opportunity to make representations). The law governing the application of unpublished policies was considered by the Supreme Court in R (Lumba) v Secretary of State for the Home Department (JUSTICE intervening) [2012] 1 AC 245. The Supreme Court concluded that what must be published “is that which a person who is affected by a policy needs to know in order to make informed and meaningful representations to the decision-maker before a decision is made”. Where there is a policy in existence, and its provisions are material to the exercise of a discretion in a particular case, those provisions must be made public.
In Case E-16/16, Fosen-Linjen AS v AtB AS, the EFTA Court has said, in a Judgment on 31 October 2017, that damages are available as a remedy for breach of the procurement rules where there is a sufficient causal link between the breach and the damage irrespective of the gravity of the breach. A simple breach of procurement law is in itself says the Court sufficient to trigger the liability of the contracting authority to compensate for damage incurred: paragraph 82. This contrasts with the Supreme Court Judgement in Energy Solutions v NDA (2017) UKSC 34.