Principle in ex parte James

March 6th, 2020 by James Goudie QC in Decision making and Contracts

The celebrated decision of the House of Lords in R v Tower Hamlets LBC, ex parte Chetnik Developments Limited (1988) AC 858 is justifiably well known for its robust affirmation of the principle that there is no such thing in public law as an unlimited or unrestricted discretion. Linked to this was the endorsement, at pages 874H-877Q, of the principle in Ex parte James (1874) L.R.9 Ch. App. 609 that a public body must act in a “straightforward”, “high-minded”, and “high-principled” way.

The principle in Ex parte James has now been considered by the Court of Appeal in Lehman Brothers Austria Ltd (In Liquidation) v Macnamara (2020) EWCA Civ 321. The threshold test for the invocation of the principle, on an objective basis, is “fairness”, procedural and substantive, rather than unconscionability, on the particular facts of a case; and the principle applies to reliance upon legal rights, including contractual rights: paragraphs 38, 64-69 inclusive, 87-90 inclusive, and 105/106.

 

Abandonment of Contract

March 5th, 2020 by James Goudie QC in Decision making and Contracts

Ryhurst Ltd v Whittington Health Trust (2020) EWHC 448 (TCC) is a procurement case in which the Claimant challenged a decision by the Trust to abandon a procurement exercise for a 10 year strategic estates partnership contract, in circumstances where the Trust had previously made a decision to award this contract to the Claimant.  The challenge failed.

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Executive Functions

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

The decision of Swift J in Williams v Caerphilly Council, noted in this Bulletin on 29 June 2019, has been upheld by the Court of Appeal: (2020) EWCA (Civ 296).  Cabinet had the power to adopt a Sports and Recreation Strategy. This was not a decision that had to be taken by Full Council. The default position applied. A distinction is to be drawn between approval of a plan and its implementation. The adoption of the 10 year Strategy was not concerned with the Council’s annual budget or its capital expenditure plan. Future closure and other decisions would be distinct matters that would need to be considered on their own merits.  There was nothing in the Strategy to say that the closure of any existing facility would inevitably happen, let alone that it would happen in the then current financial year.

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Legitimate Expectation

February 28th, 2020 by James Goudie QC in Decision making and Contracts

In order for there to be a substantive or procedural legitimate expectation based on a practice, what is required is that there must be a practice which is impliedly tantamount to a practice.

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Investigation and Decision

February 17th, 2020 by James Goudie QC in Decision making and Contracts

Uddin v London Borough of Ealing, UKEAT/0165/19/RN, concerned the dismissal of the Claimant by reason of misconduct.   One of the issues arose from the fact that the complainant who alleged inappropriate sexual behaviour towards her by the Claimant had withdrawn a complaint to the police, but the Council’s manager, who took the decision to dismiss, who knew that the complaint had been made, was not told by the Council’s investigating officer that the complaint had been withdrawn.  The EAT held that the fact that the investigating officer, who did know the complaint had been withdrawn, did not pass this on to the disciplinary decision maker, rendered the dismissal unfair, applying Royal Mail v Jhuti (2019) UKSC 55, on the reason for the dismissal, to the reasonableness of the dismissal decision: see Judge Auerbach in the  Ealing case at paragraphs 71-78, concluding, with respect to Jhuti in the Supreme Court:-

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Disability Discrimination

February 11th, 2020 by James Goudie QC in Decision making and Contracts

Ishola v Transport for London (2020) EWCA Civ 112 is concerned with the meaning of “provision, criterion or practice” (“PCP”) in Sections 20 and 21 of the Equality Act 2010, one of the three requirements in the creation of a duty to make “reasonable adjustments” in respect of a disabled person. A PCP is also part of the definition of “indirect discrimination” in Section 19 of the Act, but is not defined in the Act, or in its predecessory legislation.

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Consultation

January 30th, 2020 by James Goudie QC in Decision making and Contracts

There was a duty to consult only on options which represented genuine, i.e. realistic and viable, proposals for change.  The status quo, referred to in the public documents produced at different stages of the consultation process, a status quo of which the local public were well aware, did not have to be part of the consultation. If it were felt that insufficient information had been made available then more could have been requested. So held by the Court of Appeal in R (Nettleship) v NHS South Tyneside CCG (2020) EWCA Civ 46 at paragraphs 59/60 and 63-65 inclusive.

 

Suspension of Contract

January 23rd, 2020 by James Goudie QC in Decision making and Contracts

In Alstom v Network Rail (2019) EWHC 3585 (TCC) O’Farrell J lifted (paragraph 76) an automatic suspension which arose upon a procurement challenge, where there was a serious issue to be tried (paragraph 30). Damages would be an adequate remedy for the Claimant (paragraphs 31-45 inclusive), but not for the Defendant (paragraphs 46-49 inclusive).  Moreover, the balance of convenience test (paragraph 51) was in favour of lifting the suspension, having regard to the public interest (paragraphs 54-71 inclusive).  Delay to the Project caused by continuing the suspension would (1) delay the anticipated benefits of the planned works, (2) result in abortive costs, and (3) jeopardise the business case and funding for the Project (paragraph 59). There was an urgent need to replace degraded assets (paragraph 67).  Alstom’s point about the public interest in Network Rail complying with its legal obligations in respect of public procurement was a neutral one (paragraph 70).  It had to be balanced against the public interest in Network Rail’s entitlement to proceed with the successful tenderer following a lawful and fair procurement exercise. At the suspension stage the Court was not in a position to judge which case will prevail. There was a strong public interest in proceeding with the works as soon as possible (paragraph 71). Nor would a partial lifting of the automatic suspension be appropriate (paragraph 75). The strong public interest in lifting the automatic suspension extended to the full Project.

 

 

Decision Making and Contracts

January 6th, 2020 by James Goudie QC in Decision making and Contracts

In R (AA) v Rotherham MBC (2019) EWHC 3529 (Admin) Jefford J, a case on closure of a Day Centre for adults with learning difficulties, following two consultations, and the Council’s responsibilities for the claimant’s care needs under the Care Act 2014, Jefford J stated with respect to the law on consultation and options:-

“83.     … the following propositions can be stated:

(i)        It is not necessary in all cases where a particular proposal is the subject matter of a consultation to set out alternatives including those that may have been rejected or explain why they have been rejected.

(ii)      Fairness requires that to be done where it is necessary to allow informed or intelligent responses. That is sometimes the case as Lord Wilson said at paragraph 27 of this speech.

(iii)     Whether that is necessary, and correspondingly whether the consultation is a fair one, is a broad question in answering which the matters that fall to be considered include the purpose of the consultation, the nature of the proposal being consulted on, and what consultees can be reasonably taken to know about the proposal and its context. Read more »

 

Consultation

November 25th, 2019 by James Goudie QC in Decision making and Contracts

Who should be notified of a consultation? What positive steps must be taken to make consultees aware of the invitation to express their views? This has been considered by Steyn J in R (British Blind and Shutter Association) v Secretary of State for HCLG (2019) EWHC 3162 (Admin). She ruled (paragraph 53) that there is a duty to take positive steps. However, she added (paragraph 54): “The duty to take such positive Read more »