Presumption Of Regularity

July 19th, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

In Smart v Director of Personnel Administration (2019) UKPC 35 one issue was whether a decision challenged by judicial review was tainted by the existence of undisclosed documents. There seems to have been “an unfortunate lack of transparency” about an appointment process.   It also seemed unfortunate that the response to a Freedom of Information request was delayed. There was a lack of candour” in not disclosing correspondence.  Lord Carnwath referred, at paragraph 32, to the so-called “presumption of regularity” on the one hand and on the other hand the “well established duty” on a public authority to respond to a judicial review application with “all the cards face upwards on the table”.  The Privy Council, at paragraph 34, endorsed as the correct approach the following statement (emphasis added):-

“It is in this context of cooperation, where a court has granted leave to pursue judicial review and where the full and candid disclosure of the claimant’s evidence as well as the full, frank and uninhibited explanation – with all primary documents relevant to the challenge (subject only to lawful exemptions) of the public authority are before the court, that the process of evaluation contemplated by judicial review is to be undertaken. … the presumption of regularity ought not to operate as a shield behind which a public authority can hide by refusing to give evidence on the basis that it is for a claimant to prove his case. This is an erroneous and misplaced view of how the presumption of regularity ought to operate in public law matters. Indeed, a presumption of bona fides ought to willingly lead to full disclosure of all relevant information at the earliest opportunity – including in response to pre-action enquiries.


Inherent Likelihood of Illegality

June 12th, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

In R (ZK) v Redbridge London Borough Council (2019) EWHC 1450 (Admin) Swift J held, at paragraph 37, that the existence of an unacceptable risk of illegality in the operation of a policy is capable of giving rise to a ground of judicial review challenge, whether or not the arrangements give rise to an unacceptable risk of unfairness.  The principle (paragraph 38) is an applicable standard to judge substantive policies too.

Such capability is to be assessed (paragraph 39) “realistically and pragmatically”.


Alleged Negligent Failure

June 7th, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

The appeal to the Supreme Court in Poole Borough Council v GN (2019) UKSC 25, in which Judgment was given on 6 June 2019, was concerned with whether a local authority was liable for what was alleged to have been its negligent failure to exercise its social services functions so as to protect children from harm caused by third parties.  The principal question of law raised was whether a local authority, or its employees, may owe a common law duty of care to children affected by the manner in which the authority exercises, or fails to exercise those functions, and, if so, in what circumstances.

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Standard of Judicial Review

May 2nd, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

The scrutiny of review is dependent upon the circumstances of a particular case.  Both reasonableness and proportionality review involve considerations of weight and balance. The intensity of the scrutiny and the weight to be given to any primary decision maker’s view depend on the context.  Similarly, the requirements of procedural fairness depend on context. This includes the statutory framework within which the decision sought to be taken was impugned. The factors upon which the degree of scrutiny of review particularly depend include (1) the nature of the decision under challenge, (2) the nature of any right or interest it seeks to protect, (3) the process by which the decision under challenge was reached, and (4) the nature of the ground of challenge. See paragraph 669 of the Divisional Court decision in relation to a third runway at Heathrow, R (Friends of the Earth) v SoS for Transport (2019) EWHC 1070 (Admin), at paragraphs 147-153 inclusive.


Statutory Interpretation

April 25th, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

In R (VIP Communications Ltd) v SSHD (2019) EWHC 994 (Admin) Morris J allowed an application for judicial review and held that a Direction made by the SoS, under a regulatory framework put in place following the implementation of EU Directives, was ultra vires his statutory powers, and therefore unlawful.  Morris J, at paragraph 50, stated the principles of statutory interpretation, as follows:-

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Injunctions against persons unknown

April 4th, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

Boyd v Ineos (2019) EWCA Civ 515 was an appeal from Morgan J who had granted injunctions against persons unknown who were thought to be likely to become protesters at sites selected for the purpose of “fracking”.

The main issue was whether the Judge had been correct to grant injunctions against “persons unknown”. RSC Order 113 of the RSC enabled this. There are also statutory provisions enabling local authorities to take enforcement proceedings against persons such as squatters or travellers contained in Section 187B of the Town and Country Planning Act 1990. Since the advent of the CPR, there has been no requirement to name a defendant in a claim form. Orders have been made against Persons Unknown in appropriate cases. Read more »



March 21st, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

In Takhar v Gracefield Developments Ltd (2019) UKSC 13  a seven Justice Supreme Court has unanimously held, allowing the appeal from the Court of Appeal, that a person who applies to set aside an earlier judgment based on fraud does not have to demonstrate that evidence of fraud could not have been obtained with reasonable diligence before the earlier trial.


Future Loss

March 12th, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

In Qu v Landis & Gyr Ltd, (2019) UKEAT/0016/19/0803, a case about remedy for disability discrimination, and the difficult exercise of assessing what is likely to have happened absent a discriminatory dismissal, Simler J said as to the approach to the question of assessing future loss (emphasis added):-

“28.    The authorities show that it is a rare case where it is appropriate for a Tribunal to assess compensation over a Claimant’s career lifetime, as the Claimant invited the Employment Tribunal to do. The usual approach is to assess loss up to a point where a Tribunal is satisfied, having regard to all the uncertainties and vagaries of life, that the individual is likely to get an equivalent job. The speculative nature of the exercise means that it is possible that the individual will in fact get an equivalent job sooner or might be unlucky and take longer to do so. Thus, the Tribunal’s prediction will not necessarily be right, but those outcomes are inevitably factored into its assessment.  Since the calculation of compensation for future loss is both speculative and predictive, there is no certainty about what will happen, but rather a range of possibilities and chances of different things occurring. The assessment is not a question of fact but a question of carrying out an assessment on the basis of the Tribunal’s best estimate about the future. Read more »


Time Limits

February 27th, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

There is an old joke: “Conservative MPs: Lieutenant-Colonel Sir Walter Bromley-Davenport to name just a few”. In the Piedmont they evidently go in for very long names for parties to litigation. Case C-54/18 is fair enough. But the full title is a bit much: Cooperativa Animazione Valdocco Soc. coop.soc. Impresa Sociale Onlus v Consorzio Intercommunale Servizi Sociali de Pinerolo. That is even before coming to a Second Defendant and a host of Interested Parties.  At any rate, none of this has deterred the CJEU from giving Judgment about a 30-day time limit for applying for a review of decisions to allow tenderers to participate in, or to exclude them from, a public procurement tendering procedure. Read more »


Defective Premises

February 27th, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

In Rogerson v Bolsover District Council (2019) EWCA Civ 226 the appellant was the tenant of a council house.  She suffered injury as the result of an accident.  The issue was whether the Council could be liable under Section 4 of the Defective Premises Act 1972.  The relevant defect would have been discovered if the Council had implemented a system of regular inspection.  Did the Council as landlord have a duty to inspect? Read more »