The issue in Matthew v Selman (2021) UKSC 19 was whether, where a cause of action accrues at, or on the expiry of the midnight hour at the end of a day, the following day counts towards the calculation of the limitation period. The Supreme Court holds that, in a midnight deadline case, such as an action brought in tort, contract or breach of trust, subject to respectively Sections 2, 5 and 21 of the Limitation Act 1980, there is a complete undivided day following the expiry of the deadline, which should be included when calculating the limitation period. This is different from the situation where a cause of action accrues part-way through a day, and the general rule excludes that day for limitation purposes.
Calculation of Limitation Period
May 21st, 2021 by James Goudie KC in Judicial Control, Liability and Litigation
Systemic Unfairness
April 15th, 2021 by James Goudie KC in Judicial Control, Liability and LitigationA rule, administrative system or policy is unlawful if it gives rise to an “unacceptable risk of unfairness”. The threshold however is a high one. It requires showing unfairness which is “inherent in the system itself”, not just the possibility of aberrant decisions and unfairness in individual circumstances.
In MR v SoS (2021) EWCA Civ 541 it is held that, where there is systemic unfairness, it is not an answer to say that Judicial Review is available to correct unfairness in any single case. Nonetheless the important distinction must be maintained between adjudicating in cases, which is for the Courts, and determining policy, which is not.
Duty of Care
March 30th, 2021 by James Goudie KC in Judicial Control, Liability and LitigationIn Anchor Hanover Group v Oxfordshire County Council and Others (2021) EWHC 543 (TCC) O’Farrell J at para 59 stated principles as follows: (1) Local and other public authorities do not owe any duty of care at common law simply by exercising their statutory duties and powers; (2) The absence of a duty of care extends to advice given as part of the exercise of such duties; (3) However, a common law duty to protect from harm may arise, where the principles applicable to a private party would impose that duty; and (4) Such cases include where there is an assumption of responsibility.
Duty of Candour
March 19th, 2021 by James Goudie KC in Judicial Control, Liability and LitigationIn DVP v SSHD (2021) EWHC 606 (Admin) the Divisional Court emphasised the importance of the duty of candour when making applications for judicial review. Dame Victoria Sharp P said at para 9: “The duty of candour in this context means that the claimant must disclose any relevant information or material fact which either supports or undermines his case. Material facts are those facts which it is material for a judge to know when dealing with the urgent application. The duty requires the claimant to make the court aware of the issues that are likely to arise and the possible difficulties in the application or underlying claim.” She added, at para 10, that if there is a breach of the duty an order will be set aside even if it might otherwise have been justified. See also paras 73-80.
Standing
February 19th, 2021 by James Goudie KC in Judicial Control, Liability and LitigationIn R (Good Law Project and 3 MPs) v SoS for Health and Social,Care (2021) EWHC 346 (Admin) Chamberlain J in procurement proceedings granted standing to the first claimant and refused it to the other three. At paragraphs 77-108 he stated general principles as regards standing for judicial review as follows :-
Judicial Review and Cuts
February 15th, 2021 by James Goudie KC in Judicial Control, Liability and LitigationOn systemic claims, whether a decision (to cut funding on EHCPs) gives rise to an unacceptable risk of unlawful outcomes, and on whether a strategic statutory duty (under Section 27 of the Children and Families Act 2014) to keep provision “under review” is triggered, see R (M and IR) v Waltham Forest LBC (2021) EWHC 281 (Admin).
Mandatory Injunctions
February 12th, 2021 by James Goudie KC in Judicial Control, Liability and LitigationIn Mohammad v SSHD (2021) EWHC 240 (Admin) Chamberlain J stated principles in relation to mandatory injunctions against public authorities. They include :-
Statutory Interpretation
January 13th, 2021 by James Goudie KC in Judicial Control, Liability and LitigationIn Privacy International v Investigatory Powers Tribunal (2021) EWHC 27 ( Admin ) Bean LJ stated relevant principles of statutory interpretation as follows :-
Without Prejudice
January 11th, 2021 by James Goudie KC in Judicial Control, Liability and LitigationMotorola v Hytera (2021) CA Civ 11 concerned when without prejudice privilege is displaced by the “unambiguous impropriety” exception. Males LJ reviewed the authorities at paras 24-56 inclusive, and states at para 57: “From this review of the cases I would conclude that the courts have consistently emphasised the importance of allowing parties to speak freely in the course of settlement negotiations, have jealously guarded any incursion into or erosion of the without prejudice rule, and have carefully scrutinised evidence which is asserted to justify an exception to the rule.” Although the “unambiguous impropriety” exception has been recognised, the cases in which it has been applied have been “truly exceptional”.
Unjust Enrichment
December 24th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationSurrey County Council v NHS Lincolnshire CGC (2020) EWHC 3550 (QB) concerns a restitution claim by a local authority against an NHS body in the context of healthcare and community care services. Issues include whether the claim is a public law claim that should be brought by judicial review or can be brought as a private law claim( paras 72-84), limitation ( paras 85-91), a novel category of unjust enrichment ( paras 92-121), and change of position defence ( paras 122-129).