Injunctions

July 3rd, 2018 by James Goudie QC in Judicial Control, Liability and Litigation

In North Warwickshire Borough Council v Persons Unknown (2018) EWHC 1603 (QB) the High Court granted an injunction prohibiting “street cruising” in a local authority area. The jurisdiction to make the injunction was as follows.

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Disclosure

July 3rd, 2018 by James Goudie QC in Judicial Control, Liability and Litigation

Dr B v GMC (2018) EWCA Civ 1497 is a “mixed data case”. The majority of the Court of Appeal has ruled that in such a case there is no presumption under the DPA of non-disclosure.   Sales LJ said:-

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Administrative Law Principles

May 17th, 2018 by James Goudie QC in Judicial Control, Liability and Litigation

In R (Gallager Group Ltd) v The Competition and Markets Authority (2018) UKSC 25 the Supreme Court has ruled that:-

(1) The domestic law of the UK does not recognize equal treatment as a distinct principle of administrative law: paragraph 24;

(2) It is not an absolute rule: ibid;

(3) In domestic administrative law issues of consistency may arise, but generally as aspects of rationality: paragraph 26;

(4) A legitimate expectation of being treated equally tells one nothing about the legal consequences of such an expectation, in terms of rights and remedies in public law: paragraph 30;

(5) Simple unfairness as such is not a ground for judicial review: paragraph 32;

(6) Substantive unfairness is not a distinct legal criterion: paragraph 41;

(7) The addition of terms such as “conspicuous” or “abuse of power” adds nothing to the ordinary principles of judicial review, such as irrationality and legitimate expectation: ibid.

 

Judicial Review

April 26th, 2018 by James Goudie QC in Judicial Control, Liability and Litigation

Section 31(2A) of the Senior Courts Act was introduced by Section 84 of the Criminal Justice and Courts Act 2015, coming into effect on 13 April 2015. It provides:

“(2A) The High Court –

(a) must refuse to grant relief on an application for judicial review … if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.”

The forms of relief referred to in Section 31(1)(1) include “(a) a mandatory, prohibiting or quashing order” and “(b) a declaration or injunction under subsection (2)”. Subsections (2B) and (2C) state:

“(2B) The court may disregard the requirements in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest.

(2C) If the court grants relief … in reliance on subsection (2B), the court must certify that the condition in subsection (2B) is satisfied.” Read more »

 

Insolvency Proceedings

January 11th, 2018 by James Goudie QC in Judicial Control, Liability and Litigation

In China Town Development Co Ltd v Liverpool City Council (2017) EWHC 3347 (Ch) the High Court granted an injunction preventing the City Council from presenting a winding-up petition. There was a genuine argument that a premium for two leases was not due on completion of the first lease.  Barling J concluded that insolvency proceedings were not the appropriate vehicle for resolving a genuine dispute on substantial grounds as to the interpretation of the agreement or whether it should be rectified.  The principles were restated as to interpretation and rectification of contracts.

 

Whether Duty of Care

January 2nd, 2018 by admin in Judicial Control, Liability and Litigation

The Court of Appeal in CN v Poole Borough Council (2017) EWCA Civ 2185 held that there was no tortious duty of care on the part of the local authority in making a housing placement to protect children from harassment and abuse by neighbours.  Irwin LJ concluded:-

“93.    It is common ground that Parliament did not create a right of private law action for breach of the duties, or negligence in the exercise of the powers, under the Children Act relevant to this case. … the matter must be approached in terms of the existence or absence of a common law duty of care, not in terms of immunity from a duty of care which would implicitly otherwise exist. … policy considerations … bear on whether a duty of care exists, not on immunity. Read more »

 

Working Time

November 29th, 2017 by James Goudie QC in Judicial Control, Liability and Litigation

On 29 November 2017 the European Court of Justice (“the ECJ”) has given Judgment in Case C-214/16, King v The Sash Window Workshop Ltd, in which Mr King sought an allowance in lieu of annual leave not taken, or taken but not paid, for the years 1999 to 2012, the entire period of his engagement by the Defendant. The Defendant rejected the claim on the basis that Mr King was self-employed.  By the time the case reached the ECJ it was common ground that Mr King was nonetheless a “worker” for the purposes of the Working Time Directive. Read more »

 

CONFIDENTIALITY

November 6th, 2017 by James Goudie QC in Judicial Control, Liability and Litigation

In Western Avenue Properties Ltd v Sadhana Soni (2017) EWHC 2650 (QB) the Court (at paragraph 21) reaffirmed the principles, the Bolkiah principles, applicable to injunctions to restrain professional advisers from acting on the ground that there would be a risk of the unauthorised use of confidential information, as follows.

  1. The Claimants must show that the Defendant was, or had been, in possession of information that is confidential to the Claimants, and to the disclosure of which they have not consented.
  2. They must then show that the information is or may be relevant to the matters in which the interest of the Defendant’s client, is, or may be, adverse to that of the Claimants.
  3. The burden of proof is on the Claimants, but it is not a heavy one.
  4. The Court’s jurisdiction to grant an injunction arises out of the Court’s equitable jurisdiction to protect confidential information.
  5. The Court must consider whether the Defendant has any confidential information received from the Claimants, which is or may be relevant to the dispute between them and the Defendant’s client. If there is confidential information, but it is clear that it is not relevant to the dispute, there is no risk of the misuse of the confidential information.
  6. If the Claimants establish that the Defendant is in possession of confidential information that is, or may be, relevant to the dispute the evidential burden shifts to the Defendant to establish that there is no risk of misuse or disclosure. The risk must be more than “fanciful or theoretical”, but need not be “substantial”.

 

Judicial review

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

In Glencore Energy (UK) Ltd v HMRC (2017) EWCA Civ 1716 the Court considered the relationship between Judicial Review and an alternative statutory remedy.  Sales LJ said (paragraphs 54-56 inclusive) that the principle that Judicial Review would be refused where a suitable alternative remedy was available was not disputed.  However, the basis for the principle had to be considered. The principle did not apply as a result of any statutory provision to oust the jurisdiction of the High Court on Judicial Review. The principle was based on the fact that Judicial Review was ordinarily  a remedy of last resort. However, where it was clear that a public authority was acting contrary to the rule of law, the High Court would be prepared to exercise its discretion without waiting for some other remedial process to take its course. In considering what qualified as a suitable alternative remedy, the Court should have regard to the provisions of Parliament. If Parliament had made it clear through legislation that a particular procedure or remedy was appropriate to deal with a standard case, the Court should be slow to conclude that the public interest required it to exercise its Judicial Review function along with, or instead of, that statutory procedure. Unlawfulness might arise which was not of that standard description, in which case the availability of such a statutory procedure would be less significant.  Treating Judicial Review in ordinary circumstances as a remedy of last resort fulfilled a number of objectives. It ensured that the Courts gave priority to statutory procedures as laid down by Parliament, and avoided expensive duplication of the effort which might be required if two sets of procedures were followed in relation to the same underlying subject matter. It minimised the potential for Judicial Review to be used to disrupt the smooth operation of statutory procedures which might be adequate to meet the justice of the case, and promoted proportionate allocation of judicial resources for dispute resolution, saving the High Court from undue pressure of work.

 

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).