Civil Procedure Rules

May 30th, 2022 by James Goudie QC 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 QC 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 QC 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 »

 

Privacy

April 19th, 2022 by James Goudie QC in Judicial Control, Liability and Litigation

In Underwood v Bounty (2022) EWHC 888 ( QB ) claims for breach of the Data Protection Act Principles and for privacy/misuse of private information failed. Nicklin J reiterated at para 50 in relation to the tort of misuse of private information that liability is determined using a 2 stage test: (1) whether the claimant has “a reasonable expectation” of privacy in the relevant information; and, if so (2) whether that is outweighed by “countervailing interests”.

 

 

Constitutional Principles

April 14th, 2022 by James Goudie QC in Judicial Control, Liability and Litigation

In Somerset County Council v NHS Somerset (2022) EWFC 31 the President of the Family Division reiterates two fundamental principles of constitutional law : –

Read more »

 

Service of Judicial Review Claim Form

March 24th, 2022 by James Goudie QC in Judicial Control, Liability and Litigation

See R (Good Law Project) v SoS (2022) EWCA Civ 355 at para 39 on the need for promptness and speed in judicial review claims generally, and procurement challenges in particular, at para 41 on the importance of valid service of claim forms, and at paras 78-80 inclusive applications for extension of time. At para 57 the Court of Appeal says that, provided the Defendant has done nothing to put obstacles in the Claimant’s way, a potential Defendant is under no obligation to give positive assistance to the Claimant to serve. The potential Defendant can sit back and await developments. There is no duty on the Defendant to warn a Claimant that valid service of a claim form has not been effected.

 

Amendment of claim out of time

January 25th, 2022 by James Goudie QC in Judicial Control, Liability and Litigation

In Mullaley v Martlet Homes Ltd (2022) EWCA Civ 32 a claimant was permitted to amend its claim out of time under CPR r.17.4 so as to include an allegation that the defendant’s use of combustible cladding material for tower block refurbishment breached a design and build contract. In considering whether such a new cause of action arose from “the same facts or substantially the same facts” as those which the defendant had put in issue in its defence, some limited flexibility is allowed for a claimant to rely on new facts or matters beyond those pleaded in the defence in order to allow for expansion, elaboration or

Read more »

 

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 : –

Read more »