Gypsy and Traveller Community

January 22nd, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

In Bromley v Persons Unknown (2020) EWCA Civ 12 the Court of Appeal set out relevant law in relation to (1) Quia Timet Injunctions Against Persons Unknown (paragraphs 29-35 inclusive), (2) Quia Timet Injunctions to Prevent Likely Trespass (paragraphs 36-39 inclusive), (3) ECHR Article 8 and the Gypsy and Traveller Community (paragraphs 40-48 inclusive), and (4)(i) Relevant Statutes, including the Equality Act 2010 and the PSED (paragraphs 49-53 inclusive), (ii) Guidance in relation to unauthorised emcampments (paragraphs 54-56 inclusive), and (iii) the United Nations Convention on the Rights of the Child (paragraphs 57-58). The Court of Appeal next analysed the Appeal (paragraphs 59-98 inclusive)., especially in relation to proportionality, and then gave “Wider Guidance” as to how local authorities should act (paragraphs 99-109 inclusive),  in particular (paragraph 104) the principal considerations which should be at the forefront of a local authority’s mind when considering whether a Quia Timet Injunction should be sought against Persons Unknown, and where the proposed Injunction is directed towards the Gypsy and Traveller Community.

 

Capacity to Bring Claim

January 16th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

In Aireborough Neighbourhood Development Forum v Leeds City Council (2020) EWHC 45 (Admin) there was a preliminary issue whether the Forum, an unincorporated association, had the legal capacity to make an application to make a statutory challenge to the LPA’s adoption of a Development Plan Document.  Lieven J held that it did have such capacity.  She addressed conflicting decisions on whether an unincorporated association can bring a judicial review claim. Lieven J held that an unincorporated association does have capacity to bring both a judicial review and a statutory challenge. She said that there is a critical distinction in this respect between private and public law litigation. In public law, the legal capacity of the claimant is not a critical component of the Court having jurisdiction.

 

Time Limits

December 23rd, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

In the 2019 Rail Franchising Litigation, SoS for Transport v Arriva Rail East Midlands Ltd (2019) EWCA Civ 2259, the issue in the appeal was the applicable time limit for the bringing of claims arising out of a public procurement process which was not governed by the Public Contracts (and similar) Regulations. It raised the stark contrast between the 3-month time limit required for an application for Judicial Review, and the 6-year limit for a claim for breach of statutory duty provided by the Limitation Act 1980.  It also raised an issue as to the correct approach to the 3-month limit where the public law issues arise not from a one-off decision, but an ongoing process.

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Landlord Liability

December 17th, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

Essex County Council v Davies (2019) EWHC 3443 (QB) mainly concerned the long established Cavalier v Pope principle that a landlord is not liable for injuries arising from a property having been let in a dangerous state. The nine claimants were employees and visitors at a College leased from the County

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Judicial Review

December 10th, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

In Attorney General of Trinidad and Tobago v Ayers-Caesar, (2019) UKPC 44, Lord Sales for the majority of the Privy Council, reiterated, at paragraph 2, that (1) the threshold for the grant of leave to apply for judicial review is “low”; and (2) all that is to be examined is whether there is “an arguable ground for judicial review which has a realistic prospect of success”; but (3) wider questions of the public interest may have “some bearing” on whether leave should be granted; and (4) if the Court is “confident” at the leave stage that the legal position is “entirely clear” and to the effect that “the claim could not succeed”, it would “usually be appropriate” for the Court to dispose of the matter at that stage.

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Injunction

December 3rd, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

Injunctions may be granted to restrict street protests in order to pursue the legitimate aims of preventing disorder and protecting others, as being lawful, necessary and proportionate in a democratic society, and not discriminatory. So held in Birmingham City Council v Afsar (2019) EWHC 3217 (QB), concerned with Read more »

 

Judicial Review

December 3rd, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

Judicial Review is available when a public function is being exercised: Section 31 of the Senior Courts Act 1981 and CPR 54.2(1). A body may not be exercising a public function for all purposes. The question then is whether it is exercising a public function in the particular context and for the particular purposes. The applicable legal principles have been revisited by a Divisional Court (Davis LJ and Warby J) in R (Liberal Democrats and SNP) v ITV (2019) EWHC 3282 (Admin) from paragraph 65. The Court said, at paragraph Read more »

 

Legal advice privilege

October 24th, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

In Curless v Shell International Ltd (2019) EWCA Civ 1710 the Court of Appeal has upheld the decision of an Employment Judge to strike out parts of a disability discrimination and victimisation claim on the basis that they referred to an email which attracted legal advice privilege.  The employer (SI Ltd) was seeking advice on whether the claimant (C) –who had already made a claim of a failure to make reasonable adjustments – might be either offered voluntary severance or dismissed on the grounds of redundancy as part of a restructuring exercise. The Court of Appeal viewed this as the sort of advice which employment lawyers give ‘day in, day out’. It did not agree with the EAT’s interpretation that this was advice to act in an underhand or iniquitous way by ‘cloaking’ a discriminatory dismissal as a redundancy. Read more »

 

Interim Relief

October 11th, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

In R ( BARKING AND DAGENHAM COLLEGE ) v OFFICE FOR STUDENTS (2019) EWHC 2667 ( Admin) Chamberlain J addressed the proper approach to the grant of interim relief, and in particular interim relief to restrain publication by a public authority. He said, at para 35, that the right of a section of the public to receive information which a public authority wishes to communicate to them in what it regards as the public interest must carry very substantial weight in the balancing exercise. He said, at para 37, that the authorities rightly impose a high hurdle : “ pressing grounds “; “ the most exceptional circumstances” or “ exceptional circumstances” for the grant of interim relief to restrain publication of a report by a public authority. He said, at para 39, that it is difficult to see why the strength of the public interest in favour of publication should depend on whether the public authority is acting pursuant to a duty or a power.

 

Interim Injunction

October 9th, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

In R ( LOCHAILORT INVESTMENTS ) v MENDIP DISTRICT COUNCIL (2019) EWHC 2633 ( QB ) the Court was concerned with an application for an interim injunction to stay a Referendum on a Neighbourhood Plan. On the balance of convenience, Stein J said, at para 28, that an important factor is the general public interest in permitting a public authority to continue to act in a manner which it considers to be in the public interest. However, she considered, at para 35, that the cost, disruption and uncertainty of proceeding with a Referendum in circumstances where the lawfulness of doing so is the subject of a challenge that has reasonable prospects of success, are matters which, in the circumstances of the case, weighed in favour of granting the injunction. Moreover, para 39, the status quo was the position before the planned Referendum has taken place.