Judicial Review

April 7th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

In Packham v SOS for Transport (2020) EWHC 829 (Admin) a Divisional Court said that:

(1) When dealing matters depending essentially upon political judgment, matters of national economic policy and the like, the Court will interfere on grounds only of bad faith, improper notice or manifest absurdity : para 55; and

(2) Whether there is a failure to take into account a relevant consideration that the decision maker is obliged to take into account has nothing to do with the different question of whether a decision is vitiated by error of fact : the two should not be eluded or confused : para 51.

 

References to ECJ

April 2nd, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

Courts in the UK continue to be obliged to refer to the European Court of Justice cases involving unclear EU law. The Supreme Court made such a reference on 1 April 2020 in Zipvit v HMRC (2020) UKSC 15.

 

Vicarious Liability

April 1st, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

The Supreme Court has unanimously allowed appeals in WM Morrisons Supermarkets v Various Claimants (2020) UKSC 12 and in Barclays Bank v Various Claimants (2020) UKSC 13. No vicarious liability in either case. The former concerned an employee, the latter an independent contractor. Vicarious liability applies to employees and near employees. It does not apply to classic independent contractors.

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Adjudication and Fraud

March 19th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

In PBS v BESTER (2020) EWCA 404 Coulson LJ at paragraph 23 stated principles with respect to enforcement of compulsory adjudication awards in the construction industry when there are allegations of fraud, as follows : (1) If the allegations of fraud were made, or could and should have been made, in the adjudication, that cannot subsequently amount to a reason not to enforce the decision; (2) If on the other hand (I) the adjudicator’ s decision was arguably procured by fraud or (I) where the material relied upon by the adjudicator is shown to be both (a) material and (b) arguably fraudulent and (iii) the allegation of fraud could not have been raised in the adjudication, such allegations can be a proper ground for resisting enforcement.

 

Confidentiality

March 19th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

On “ Confidentiality Rings” in civil litigation, see INFDERATION Ltd v GOOGLE LLC (2020) EWHC 657(Ch) at paras 27-47 inc.

 

Some thoughts on Local Authorities and Coronavirus

March 18th, 2020 by Peter Oldham QC in Decision making and Contracts, Human Rights and Public Sector Equality Duty, Judicial Control, Liability and Litigation, Local Authority Powers, Social Care

This note sets out some information and personal views about local authority decision making in the light of the current crisis.

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Judicial Review Costs

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

In R (Parreen) v Redbridge LBC (2020) EWCA Civ 194 the Court of Appeal has reiterated the principles that should be applied when dealing with the costs of judicial review proceedings which have been withdrawn or settled prior to a full hearing in circumstances where the claimant has obtained all or some of the relief claimed. It is necessary to identify the “successful party”, but success consists not only in obtaining the relief sought, but also obtaining it earlier than would otherwise have been the case.  The Court of Appeal also reiterated  however that investigation of such matters has to be kept within reasonable and proportionate bounds; and that the fact that the claimant obtained the relief sought did not necessarily mean that the proceedings had caused or contributed to that outcome.

 

Actionable Duty of Care

March 12th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

In Husson v SSHD (2020) EWCA Civ 329 Simler LJ stated, at paragraph 42, that:-

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Expert Witnesses

March 12th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

The duties and conduct of expert witnesses are the subject matter of Blackpool Borough Council v Volkerfitzpatrick Ltd (2020) EWHC 387 (TCC). In a construction dispute, concerned with design and build contracts for a new tram depot, the defendant contractor applied for orders that (a) the claimant should not be permitted to rely on the evidence of two of its experts (D and C) on the basis that they had shown a lack of independence and (b) the claimant’s claims should be struck out on the basis that without such expert evidence they were bound to fail.  The Judge held that D and C had not been guilty of any wrongdoing, and dismissed the application.

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Interim Relief

March 9th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

The Court of Appeal in dismissing the appeal in Canada Goose v Persons Unknown (2020) EWCA Civ 303 has enunciated procedural guidelines applicable to proceedings for interim relief in protestor cases against “Persons Unknown”, at paragraph 82 of the Judgment, as follows:-

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