May 12th, 2023 by James Goudie KC in Judicial Control, Liability and Litigation

In TRANSPORT FOR LONDON v PERSONS UNKNOWN (2023) EWHC 1038 (Admin) a final injunction is granted against named defendants and persons unknown. They were supporters of, and activists connected with, INSULATE BRITAIN. The injunction prohibits them from blocking identified roads and bridges during their protests.


Substitution mindset

January 5th, 2023 by James Goudie KC in Judicial Control, Liability and Litigation

In considering whether a misconduct dismissal was fair or outside the band of reasonable responses open to the employer and unfair, an Employment Tribunal must guard against a “ substitution mindset “, both in relation to the employer’s investigation and the decision to dismiss, and consider the fairness of the disciplinary process as a whole : Leicester City Council v Chapman (2022) EAT 178 at paras 31-37 inclusive.


Environmental Demonstrators

October 27th, 2022 by James Goudie KC in Judicial Control, Liability and Litigation

BREEN v ESSO PETROLEUM (2022) EWCA Civ 1405 is concerned with an environmental protestor guilty of civil contempt of court and the appropriate sanction. The Court addresses in paras 6 & 7 the correct approach to sanctions in contempt cases and in paras 8-11, 13-15, and 72 the particular considerations in protestor cases. An important objective of the sanction is to ensure future compliance with the order in question. The importance of complying with court orders, no matter the sincerity of the protestor’s views, is paramount. In a democratic society, it is the duty of responsible citizens to obey the law and respect the rights of others, even where the law or other people’s activities are contrary to the protestor’s own moral conviction. There is no default position or presumption that a protestor in contempt of court will ordinarily receive a suspended sentence. There is no principle that immediate custody is appropriate only in cases of direct harm and disruption to the public.


Settlement Agreements

October 27th, 2022 by James Goudie KC in Judicial Control, Liability and Litigation

Part 10 of the Equality Act 2010 relates to contracts and other agreements, and collective agreements. Section 144 relates to contracting out. There is a general prohibition. However, there are exceptions from the prohibition. A “qualifying settlement agreement” will not be unenforceable. The meaning of “qualifying settlement agreement” is addressed in Section 147. A number of specified conditions must be met. These include that the contract must relate to “the particular complaint”. In BATHGATE v TECHNIP (2022) EAT 155 it is ruled that the words “the particular complaint” anticipate the existence of an actual complaint or circumstances where grounds for a complaint exist. They are not apt to describe a potential future complaint. It was held that the redundancy agreement in that case did not prevent a claim being made for age discrimination.



October 3rd, 2022 by James Goudie KC in Judicial Control, Liability and Litigation

In Plymouth City Council v ABC (2022) EWHC 2426 (Ch) the Council claims that the defendant downloaded personal data and confidential information otherwise than for the purpose of carrying out her duties as an employee of the Council and without the Council’s consent. The defendant applied for anonymity. This has been refused. The issue was the effect if any of the Sexual Offences (Amendment) Act 1992. That Act does not confer power on the Court to order that any party to proceedings should be anonymised. What it does do is to make it a criminal offence to identify certain persons in any publication thereafter. The question was whether the Act applies where there are no criminal proceedings in which an allegation of a relevant offence has been made. There was no clear authority on the point, albeit Sales J as he then was had, in National Westminster Bank v Lucas (2014) EWHC 653 (Ch), the Jimmy Saville case, expressed doubt that the Act had the effect of granting anonymity outside the context of criminal proceedings, and Keenan J in Birmingham City Council v Riaz (2016) 1 FLR 797 did not appear to consider that the 1992 Act was engaged. The Judge in the Plymouth case concluded, at paragraph 30,  that the Act applies only where a formal allegation is made in criminal proceedings, that is, where a criminal charge has been made.



September 5th, 2022 by James Goudie KC in Judicial Control, Liability and Litigation

In R (Challis) v SoS for Health and Social Care (2022) EWHC 2269 (Admin) Steyn J at para 73 addresses the legal principles in circumstances where the sole ground of judicial review is irrationality. It is for the Court to determine whether, viewed objectively, the decision is outside the range of reasonable decisions open to the decision-maker. Unequal treatment is not a distinct ground of review. In assessing an allegation of unequal treatment the question is whether irrational distinctions have been drawn between different groups. Consistency is a generally desirable objective. It is not an absolute rule.


Duty of Care

August 31st, 2022 by James Goudie KC in Judicial Control, Liability and Litigation

The Appeal in HXA v Surrey County Council (2022 ) EWCA Civ 1196 involves consideration of the circumstances in which a local authority, and/or the social workers for whom it is vicariously liable, owe a duty of care toa child to whom the local authority is providing child protection services. The Court of Appeal’s Conclusions are set out from paragraph 90 to 110.. A duty of care cannot arise simply as a result of the authority’s general duties, but may arise as a result of its specific exercise of its specific duties to a child if, on a case by case basis and the specific facts of the case, the circumstances amount to an assumption of responsibility for the child, and the circumstances in which an authority may assume responsibility for a child are not confined to cases where it acquires parental responsibility under a care order.



Civil Procedure Rules

May 30th, 2022 by James Goudie KC in Judicial Control, Liability and Litigation

In PRIMAVERA ASSOCIATES LTD V HERTSMERE BOROUGH COUNCIL (2022) EWHC 1240 (Ch) the defendant local planning authority applied, with partial success, to strike out a witness statement made on behalf of the claimant property development company. The claimant alleged that the Council had been negligent in its planning process. Written statements are to contain evidence that the maker would be allowed to give orally. They are not to provide commentary on documents or engage in argument or include opinion. They must state how well the witness personally recalls the matter addressed and provide details of documents used to refresh memory in respect of matters of fact. They can provide relevant background information known to the witness.


Judicial Review and Courts Act 2022

May 23rd, 2022 by James Goudie KC in Judicial Control, Liability and Litigation

Part 1 of the Judicial Review and Courts Act 2022 relates to Judicial Review. It consists of two Sections.  Section 1 relates to quashing orders.  Section 2 excludes review of Upper Tribunal permission to appeal decisions.  Section 1(1) provides that a quashing order may include provision (a) for the quashing not to take effect until a date specified in the order, or (b) removing or limiting any retrospective effect of the quashing.  In deciding whether to exercise a power in subsection (1) the Court must have regard to six specified matters.


Judicial Review of Policies

May 4th, 2022 by James Goudie KC in Judicial Control, Liability and Litigation

R (All the Citizens) v SoS (2022) EWHC 960 (Admin), a Divisional Court is concerned with whether there is a legal duty, enforceable by judicial review, to create and maintain records so that they are available for posterity, and whether policies are enforceable as a matter of public law.

At para 17, the Court addressed a procedural question. They said, at para 17 (emphasis added):-

“It should not be left to parties (or, for that matter, the court) to have to infer, from omissions in skeleton arguments, what grounds of claim have been abandoned. If a party no longer pursues a ground of claim, that ought to be made clear to the court and to the other parties. To do otherwise is inconsistent with the obligations to:

(1)     help the court to further the overriding objective (which includes identifying the issues at an early stage): see CPR 1.3 and 1.4(2)(b); Read more »