Surrey 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).
Unjust Enrichment
December 24th, 2020 by James Goudie KC in Judicial Control, Liability and Litigation
Liability for Accident in Public Park
December 4th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationIn Lewis v Wandsworth LBC (2020) EWHC 3205 (QB) it is held that the local authority had been under no legal duty to warn those using a path in a public park that a game of cricket with a hard ball was in progress and that the boundary of the cricket pitch was alongside the path. Bolton v Stone (1951) AC 850 was considered. Reasonable foreseeability of an accident is not sufficient to found liability. The Court has to consider not only the potential seriousness of an accident but also the chances of an accident happening and the measures which could be taken to minimise or avoid an accident.
Judicial Review
December 1st, 2020 by James Goudie KC in Judicial Control, Liability and LitigationThere is increasing concern about the need for appropriate procedural rigour in judicial review cases. In R (Dolan) v SoS for Health (2020) EWCA Civ 1605 the Court of Appeal says, at para 117 that procedural rigour is important for justice to be done and for fairness to all concerned.
Restitution
November 23rd, 2020 by James Goudie KC in Judicial Control, Liability and LitigationIn Test Claimants in Franked Investment Group Litigation v HMRC (2020) UKSC 47 the Supreme Court hols that (1) by a 4-3 majority, Section 32(1)(c) of the Limitation Act 1980 applies to mistakes of law, following Kleinwort Benson v Lincoln City Council (1999) 2 AC 349, and (2) time begins to run when the claimant discovers, or could with reasonable diligence discover, his mistake, in the sense of recognizing that a worthwhile claim arises, departing from Deutsche Morgan v IRC (2006) UKHL 49. The case is also of interest with respect to both cause of action and issue estoppel.
Costs
October 12th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationWhere the overall winner has failed on a number of issues, Judges should consider the extra costs associated with the failed issues, be explicit about the proportions of time spent on the successful and failed points respectively, and attempt to quantify that, as a starting point. However, the Judge still had to stand back, look at the matter globally, and consider the extent to which it was just to deprive the successful party of costs. That involves a discretionary judgment. It is not a mechanical exercise. See Terracorp v Mistry (2020) EWHC 2623 (Ch).
Judicial Review: Refusal of Relief
September 10th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationIn Gathercole v Suffolk County Council (2020) EWCA Civ 1179 relief was refused where planning permission, for a new village primary school near an airfield, had been granted without compliance with the public sector equality duty, in respect of the effect of aircraft noise on children with protected characteristics, but it was highly likely that the planning decision would have been the same if there had been compliance. The environmental statement in respect of alternative sites, was adequate, but even if it had not been that would not have had any substantive effect on the planning decision.
Litigation
September 8th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationIn TBD v Simons (2020) EWCA Civ 1182 the appeals raised important issues as to (1) the interpretation of search orders, (2) the granting of permission to bring committal proceedings, and (3) litigation privilege. On search orders, see paras 127-175, imaging orders, paras 176-193, applications for permission to bring committal proceedings, paras 230-234, and litigation privilege, including waiver and the iniquity exception, from para 254.
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