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.


Injunctions against persons unknown

September 30th, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

An injunction should not be granted against persons unknown when the wording of the injunction sought to restrain tortious conduct is wide enough to include persons who had not committed, or threatened to commit, any civil wrong. In Canada Goose v Persons Unknown (2019) EWHC 2459 (QB) Nicklin J said, at paragraphs 62-89 and 144-163, that the class of people potentially captured as “persons unknown” was not Read more »


Non-Party Costs Order

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

In Aldemir v Cornwall Council (2019) EWHC 2407 (Admin) Swift J held that Magistrates acting pursuant to their appeal jurisdiction under Section 181(2) of the Licensing Act 2003 had the power to make a non-party costs order in favour of the licensing authority whose decision was appealed.  However, in this case the procedure followed when the costs orders were made was found to be flawed.  Swift J said:-

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

In Redcar & Cleveland BC v PR (2019) EWHC 2305 (Fam) Cobb J considered the circumstances in which interim injunctions are granted to local authorities under the Court’s inherent common law jurisdiction to protect vulnerable adults. That jurisdiction is not confined to cases where a vulnerable adult is disabled by mental incapacity from making his or her own decision about the matter in hand, and cases where an adult, although not mentally incapacitated, is unable to communicate his decision.  The jurisdiction extends to a wider class of vulnerable adults, where there is evidence of vulnerability and a need to protect the vulnerable person, and statutory processes would not offer the level of protection needed.  Nor is the jurisdiction excluded if the order amounts to a deprivation of liberty, at any rate if any such deprivation does not exceed six weeks.   Cobb J said  (paragraph 46):-

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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.