Direct Effect of EU Directives

October 11th, 2017 by James Goudie QC in Judicial Control, Liability and Litigation

In Farrell v Minister for the Environment, Ireland, Case C-413/15, ECJ Judgment on 10 October 2017, the Court has reaffirmed Foster v British Gas and other cases that where a person is able to rely on a Directive against emanations of the State he or she may do so regardless of the capacity in which the public authority is acting, whether as public authority or e.g. employer, and that “unconditional and sufficiently precise” provisions of a Directive, whether or not transposed into domestic law, can be relied on against emanations of the State (such as local authorities).

 

 

Restitution

June 27th, 2017 by James Goudie QC in Judicial Control, Liability and Litigation

Proceedings brought by or against local authorities often contain a claim in restitution, usually on the basis of a mistake. In Astex Therapeutics Ltd v Astrozeneca [2017] EWHC 1442 (Ch) the High Court (Arnold J) has reaffirmed that any mistake either of law or of fact can qualify as a mistake for restitutionary purposes, provided that it is causative, and that in order to establish a prima facie claim to restitution of an enrichment, a party needs to show only that (1) it was mistaken at the time the enrichment was conferred and (2) it was that mistake that had caused that enrichment to be conferred.  In that case the payments were milestone payments and the mistake was as to contractual status.

 

Possession Proceedings

June 22nd, 2017 by James Goudie QC in Judicial Control, Liability and Litigation

In Hertfordshire County Council v Davies [2017] EWHC 1488 (QB) Mrs Justice Elisabeth Laing rejected a variety of defences and held that the Council was entitled to possession of the School Bungalow (“the Bungalow”) in Hoddesdon in its area. The Defendant moved into it with his family when he became the caretaker at Sheredes School (“the School”). Eventually, after a disciplinary hearing, the Council dismissed the Defendant for gross misconduct. He appealed against the decision to dismiss him, unsuccessfully.   The Council served a notice to quit requiring the Defendant to give up possession. Thereafter the Council issued proceedings for possession. The claim was in due course transferred to the High Court because one of the remedies sought by the Defendant in his counterclaim was a declaration that paragraph 2 of Schedule 1 to the Housing Act 1985 (“the 1985 Act”) is incompatible with his rights conferred by the European Convention on Human Rights. Read more »

 

Discrimination

June 15th, 2017 by James Goudie QC in Judicial Control, Liability and Litigation

Is authoritative material showing that discriminatory conduct or attitudes were widespread elsewhere in an institution admissible in considering the motivation of an alleged individual discriminator? It may be, rules the Court of Appeal in Chief Constable of Greater Manchester v Bailey (2017) EWCA Civ 425, at paragraph 99.  Such material may make it more likely that the alleged conduct had occurred or that the alleged motivations were operative.  Alternatively, there might be some more specific relevance.  However, such material has always to be used with care.  Moreover, the fact finding tribunal has in any case to identify with specificity the particular reason why it considers the material in question to have probative value as regards the motivation of the alleged discriminator in any particular case. There is no doctrine of “transferred malice”.

 

Legal professional privilege

May 16th, 2017 by James Goudie QC in Judicial Control, Liability and Litigation

In Holmes v Information Commissioner and Cumbria County Council, EA/2016/0256  the First-Tier Tribunal upheld the Commissioner’s decision refusing to order the County Council to disclose a Counsel’s Opinion.  Regulation 12(5)(b) of the Environmental Information Regulations was engaged, but the balance of public interest was against disclosure.  Nor had legal professional privilege been waived by the County Council, notwithstanding that the Committee Report had stated that “expert legal advice has been sought from counsel on the matter and counsel has confirmed that this is an appropriate way to proceed”. Read more »

 

Section 222

May 10th, 2017 by James Goudie QC in Judicial Control, Liability and Litigation

In R v AB and others (2017) EWHC Crim 534 the Court of Appeal (Criminal Division) has held that a local authority did not have power under Section 222 of the Local Government Act 1972 to bring a prosecution for defrauding the Legal Aid Agency (“the LAA”).  The Fraud Investigation Department (“FID”) of the authority had carried out an investigation for the LAA.  No issue was raised as to the power to investigate.  The Court said:- Read more »

 

Deprivation of Liberty Regime

May 3rd, 2017 by James Goudie QC in Judicial Control, Liability and Litigation

In R (Liverpool City Council and others) v SoS for Health (2017) EWHC 986 (Admin) four English councils sought to challenge the Government’s “ongoing failure to provide full, or even adequate, funding for local authorities in England to implement the deprivation of liberty regime“, the costs of complying with which have proved to be very substantial, following the Supreme Court Judgment in Cheshire West. They suggested that the financial shortfall suffered by councils across the country generally is somewhere between one third of a billion pounds and two thirds of a billion pounds each year and claimed that the Government must meet that shortfall. They sought a declaration that, by his failure to meet those costs, the Secretary of State for Health (“the SoS”) had created an “unacceptable risk of illegality” and was in breach of the policy constituted by the “New Burdens Doctrine” (“the NBD”). They sought a mandatory order requiring the SoS to remove the “unacceptable risk of illegality” and to comply with the NBD. Read more »

 

Abuse of process

May 2nd, 2017 by James Goudie QC in Judicial Control, Liability and Litigation

In Chalfont St Peter Parish Council v Holy Cross Sisters Trustees Inc (2017) EWHC 777 (QB), a claim against a religious Order for conspiracy to injure, which effectively alleged that the Order had obtained planning permission for the residential development of its land by making fraudulent and deceitful misrepresentations about the prior use of the land, was permitted to proceed to trial. The Court refused to strike out the claim as an abuse of process, even though the planning permission had already been challenged in judicial review proceedings, because it had not been open to the claimant to allege fraud in those proceedings.  Summary judgment was also refused.

Allegations of fraud were not to be made lightly, especially against the type of defendant in the instant case. It was a professional rule that lawyers could only allege fraud on clear instructions from their client, and with seemingly credible evidence in support.  That rule had been scrupulously observed in the instant case.  There was credible evidence that the area had been used as a playing field by the school, and that that must have been common knowledge.  Nevertheless, when interviewed by the Parish Council’s solicitor, the former caretaker of the school had affirmed his recollection that the area had not been used as a playing field. The court sympathised with the Sisters in the fact that fraud was being alleged six years after the event and after multiple hearings about the same subject-matter, but could not strike out the claim for the following reasons: (a) it had not been open to the Council to allege fraud in the judicial review proceedings, because it was not the purpose of such proceedings to make findings of fact; (b) in order to prove a mistake of fact in judicial review proceedings, a party could only rely on new evidence if that evidence was uncontentious; (c) whilst there was precedent for the review by the Administrative Court of decisions vitiated by the fraud of the decision-maker, there was no authority to support the proposition that there was a legitimate ground of review where the decision-maker had acted properly, but the applicant had procured the decision by fraud. The remedy in such a case would be an action in fraud; (d) the decision not to allege fraud during the earlier proceedings had been taken upon legal advice, and that advice could not be said to be wrong.  Given those reasons, it was reasonable for the Parish Council to have exhausted their remedies in the judicial review proceedings before bringing the instant case. It could not be characterised as a collateral attack on the decisions arrived at in the judicial review process, because the Sisters had not been a party to those proceedings, and the remedy sought was quite different. The case was not suitable for summary judgment. It could not be said that the Parish Council had no real prospect of success on the issues. Further evidence and a closer examination of the facts was required.

 

Judicial review time limit and disclosure

April 10th, 2017 by James Goudie QC in Judicial Control, Liability and Litigation

Principles relating to delay in judicial review proceedings have been restated as follows by Lewis J in R (Sustainable Development Capital LLP) v SoS for Business, Energy and Industrial Strategy (2017) EWHC 771 (Admin).  The case concerned the proposed sale of a publicly-owned asset. The claimant sought to challenge the defendant’s award of preferred bidder status and a period of exclusivity to another party.

The first issue was whether the claim was brought within the time prescribed by CPR 54.5.  Lewis J said (paragraphs 31, 32 and 35):-

(1) A claim for judicial review must be brought promptly;

(2) It must be brought in any event not later than 3 months after the date when the grounds of challenge for first making the claim arose;

(3) The test is one of promptness; Read more »

 

Reasons

February 17th, 2017 by James Goudie QC in Judicial Control, Liability and Litigation

The appeal in Oakley v South Cambridgeshire District Council (2017) EWCA Civ 71 raised the issue whether, in the particular circumstances of the case, the Planning Committee of the South Cambridgeshire District Council ought to have given reasons for granting planning permission for the development by Cambridge City Football Club, a semi-professional club, of a football stadium capable of seating three thousand people. The proposed construction is in the outskirts of Sawston in Cambridgeshire, on land which is part of the Green Belt. The application for planning permission was not only for the erection of the ground, together with associated training and parking facilities, but also for the creation of a partially floodlit recreational ground which would be gifted to the Sawston Parish Council for community use. Read more »