Judicial Review

June 17th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

“ Rolling” JR may be appropriate in some cases. JR does not relate exclusively to specific decisions with specific dates. It may also relate to continuing conduct, when there is a “ moving picture”, as in the adult social care case of R (Raja) v Redbridge LBC (2020) EWHC 1456 ( Admin).

 

 

Interim Injunctions

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

A School’s appeal against the refusal of an interim injunction was dismissed in R ( Governing  Body of X ) v OFSTED (2020) EWCA Civ 594. The injunction sought was to restrain OFSTED from publishing a Report. The Report graded the School as inadequate. The Court of Appeal addressed the approach to interim injunctions in public law proceedings.

 

Disclosure

May 6th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

It is fundamental to disclosure obligations in litigation that it must not be the client who makes the selection of which documents are relevant and disclosable. That is the responsibility of the solicitor.

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Policies and Consistency

May 4th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

When there is a statutory discretion is there a requirement to have and publish a policy on the exercise of that discretion? No, says the Northern Ireland Court of Appeal in the context of the discretion of the Secretary of State for Northern Ireland, under the Northern Ireland Act 1998, implementing the Belfast Agreement, to hold a border poll : Application by Raymond McCord for Judicial Review (2020) NICA 23. The case is of general interest on policies, on the rule of law, and on general administrative law principles of consistency, equal treatment, transparency and accountability.

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Remote Hearings

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

Three Court of Appeal Judgments on one day, from an identically constituted Court, on local authorities and remote coronavirus hearings. L (Adoption) (2020) EWCA Civ 577 on covert sibling tests and ECHR Article 8. A (Children) (2020) EWCA Civ 583 providing general guidance. B (Children) (2020) EWCA Civ 584 on procedural principles.

 

Disclosure

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

BES v Cheshire West and Chester BC (2020) EWHC 701 (QB) concerns the extent of a local authority’s duty of disclosure in litigation arising out of a trading standards investigation. All 22 local authorities carrying out trading standards functions in the North West Region had signed  Protocol identifying the Defendant as the lead partner for the Regional Investigation Team. The other authorities, including Lancashire County Council (LCC), delegated trading standards functions to the Defendant. The Protocol encouraged the exchange of information and mutual assistance. It fell short of establishing a right, or even a presumption, that certain categories of documents were, without more, to be provided on request.

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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.