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 »



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).




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 »



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 »