Judicial Control, Liability and Litigation Injunctions

January 13th, 2022 by James Goudie QC in Judicial Control, Liability and Litigation

In Barking & Dagenham LBC v Persons Unknown (2022) EWCA Civ 13 the Court of Appeal rules that the Courts can grant in respect of unauthorised encampments a final injunction that prevent  persons that are unknown and unidentified at the date of the Order, newcomers, from occupying and trespassing on local authority land.

 

DISABILITY DISCRIMINATION

January 10th, 2022 by James Goudie QC in Judicial Control, Liability and Litigation

Section 29(6) of the Equality Act 2010 on exercise of a public function does not provide a remedy equivalent to Section 39(2) of that Act on discrimination against employee. So held in Eckland v Chief Constable of Avon & Somerset (2021) EWCA Civ 1961, because the former claim has to be brought in the County Court, whereas the latter can be pursued in an Employment Tribunal. There are a number of material differences between the two jurisdictions, including that it is the ET which has the appropriate expertise for determining discrimination disputes in the employment field, and both the costs regime and the available remedies are different.

 

Extension of Limitation Period

December 23rd, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

The 30 day limitation for procurement claims is a short one, but the Courts have repeatedly emphasised that it should be observed. In Access for Living Limited v Lewisham LBC (2021) EWHC 3498 ( TCC ) Jefford J says : –

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INJUNCTIVE RELIEF IN A PUBLIC LAW CONTEXT

November 26th, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

Whether or not to grant an injunction in a public law case involves the exercise of a discretion which takes all relevant matters into account. These include the strength of the case advanced by the party seeking relief. That however, is not the application of a rigid test. Other important factors to be taken into account are (1) the particular decision under challenge, (2) the interests of the public in general that are involved, and (3) the broader legal framework. See para 52 in R ( S & S ) v HMRC (2021) EWHC 3174 ( Admin ).

 

Defective Order

October 21st, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

The appeal in R ( Majera) v SSHD (2021) UKSC 46 raised a question of constitutional importance: whether it is possible to act lawfully in a manner which is inconsistent with an Order of a Judge which is defective, without first applying for, and obtaining, the variation or setting aside of that Order. The answer, reversing the Court of Appeal, is: No.

 

The Test of Irrationality

October 13th, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

In Pantellerisco v SoS for Work & Pensions (2021) EWCA Civ 1454 Underhill LJ for the Court of Appeal says, at para 56, that the “degree of intensity” with which the Court will review the reasonableness of a public law act or decision “ varies “according to the “nature” of the decision in question, and, at para 57, that in the context of governmental decisions in the field of “social and economic policy” the administrative law test of unreasonableness is generally applied with “considerable care and caution.” The approach of the Courts is in general to accord a “high level of respect” to the judgment of public authorities in that field. This respects the “separation of powers” between the judiciary and the elected branches of government.

 

Harassment

September 29th, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

In Ashford Borough Council v Wilson (2021) EWHC 2542 (QB) the Borough Council and its Chief Executive sought on their own behalf and on behalf of the current and former officers, employees, councillors and agents of the Council, a final anti-harassment injunction against the Defendant, a large-scale landlord in Kent, pursuant to the Protection from Harassment Act 1997 [“the 1997 Act”]. The Claimants’ complaints related, principally, to letters and emails sent by the Defendant.

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Fundamental Dishonesty in Relation to Claim

September 20th, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

The central issue in Elgamal v Westminster City Council (2021) EWHC 2510 (Admin) was whether the Claimant had on the balance of probabilities been fundamentally dishonest in relation to his personal injury claim against the Council and accordingly the provisions of Section 57 of the Criminal Justice and Courts Act 2015 were applicable. Jacobs J. said:-

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Abuse of Process

August 23rd, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

A Court has power to strike out proceedings as an abuse of process in circumstances where the issues sought to be raised might have been dealt with in earlier proceedings: the Henderson v Henderson principle. In the Matter of S ( Children) (2021) EWCA Civ 1223 the Court of Appeal rules that this principle has no application in children’s proceedings.

 

Unjust Enrichment

August 10th, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

The most common defences to restitution claims are limitation and change of position. How far does a defendant have to go in proving the irreversibility of the unjust enrichment for the purposes of the change of position defence? Not so far as to pursue litigation in mitigation of loss if there is “little chance of recovery”. See paragraph 76 in Atkinson v Varma (2021) EWHC 2027 (Ch).