The scrutiny of review is dependent upon the circumstances of a particular case.  Both reasonableness and proportionality review involve considerations of weight and balance. The intensity of the scrutiny and the weight to be given to any primary decision maker’s view depend on the context.  Similarly, the requirements of procedural fairness depend on context. This includes the statutory framework within which the decision sought to be taken was impugned. The factors upon which the degree of scrutiny of review particularly depend include (1) the nature of the decision under challenge, (2) the nature of any right or interest it seeks to protect, (3) the process by which the decision under challenge was reached, and (4) the nature of the ground of challenge. See paragraph 669 of the Divisional Court decision in relation to a third runway at Heathrow, R (Friends of the Earth) v SoS for Transport (2019) EWHC 1070 (Admin), at paragraphs 147-153 inclusive.

In R (VIP Communications Ltd) v SSHD (2019) EWHC 994 (Admin) Morris J allowed an application for judicial review and held that a Direction made by the SoS, under a regulatory framework put in place following the implementation of EU Directives, was ultra vires his statutory powers, and therefore unlawful.  Morris J, at paragraph 50, stated the principles of statutory interpretation, as follows:-

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Boyd v Ineos (2019) EWCA Civ 515 was an appeal from Morgan J who had granted injunctions against persons unknown who were thought to be likely to become protesters at sites selected for the purpose of “fracking”.

The main issue was whether the Judge had been correct to grant injunctions against “persons unknown”. RSC Order 113 of the RSC enabled this. There are also statutory provisions enabling local authorities to take enforcement proceedings against persons such as squatters or travellers contained in Section 187B of the Town and Country Planning Act 1990. Since the advent of the CPR, there has been no requirement to name a defendant in a claim form. Orders have been made against Persons Unknown in appropriate cases. Read more »

In Takhar v Gracefield Developments Ltd (2019) UKSC 13  a seven Justice Supreme Court has unanimously held, allowing the appeal from the Court of Appeal, that a person who applies to set aside an earlier judgment based on fraud does not have to demonstrate that evidence of fraud could not have been obtained with reasonable diligence before the earlier trial.

In Qu v Landis & Gyr Ltd, (2019) UKEAT/0016/19/0803, a case about remedy for disability discrimination, and the difficult exercise of assessing what is likely to have happened absent a discriminatory dismissal, Simler J said as to the approach to the question of assessing future loss (emphasis added):-

“28.    The authorities show that it is a rare case where it is appropriate for a Tribunal to assess compensation over a Claimant’s career lifetime, as the Claimant invited the Employment Tribunal to do. The usual approach is to assess loss up to a point where a Tribunal is satisfied, having regard to all the uncertainties and vagaries of life, that the individual is likely to get an equivalent job. The speculative nature of the exercise means that it is possible that the individual will in fact get an equivalent job sooner or might be unlucky and take longer to do so. Thus, the Tribunal’s prediction will not necessarily be right, but those outcomes are inevitably factored into its assessment.  Since the calculation of compensation for future loss is both speculative and predictive, there is no certainty about what will happen, but rather a range of possibilities and chances of different things occurring. The assessment is not a question of fact but a question of carrying out an assessment on the basis of the Tribunal’s best estimate about the future. Read more »

There is an old joke: “Conservative MPs: Lieutenant-Colonel Sir Walter Bromley-Davenport to name just a few”. In the Piedmont they evidently go in for very long names for parties to litigation. Case C-54/18 is fair enough. But the full title is a bit much: Cooperativa Animazione Valdocco Soc. coop.soc. Impresa Sociale Onlus v Consorzio Intercommunale Servizi Sociali de Pinerolo. That is even before coming to a Second Defendant and a host of Interested Parties.  At any rate, none of this has deterred the CJEU from giving Judgment about a 30-day time limit for applying for a review of decisions to allow tenderers to participate in, or to exclude them from, a public procurement tendering procedure. Read more »

In Rogerson v Bolsover District Council (2019) EWCA Civ 226 the appellant was the tenant of a council house.  She suffered injury as the result of an accident.  The issue was whether the Council could be liable under Section 4 of the Defective Premises Act 1972.  The relevant defect would have been discovered if the Council had implemented a system of regular inspection.  Did the Council as landlord have a duty to inspect? Read more »

In Perry v Raleys (2019) UKSC 5 the Supreme Court said that loss of chance damages have been developed by the Courts to deal with the difficulties arising from the assessment of counter-factual and future events. In both types of situation, the Courts, at times, depart from the ordinary burden on a claimant to prove the facts required for a successful claim on the balance of probabilities (i.e. more likely than not) standard. However, this does not mean that the basic requirement that a negligence claim requires proof that loss has been caused by the breach of duty is abandoned. The correct approach is to require a claimant to prove what he or she would have done on the balance of probabilities, while what others would have done (if relevant) depends on a loss of chance evaluation. These principles apply equally to negligence claims based on loss of the opportunity to achieve a better outcome in a negotiated transaction and ones, as in this case, based on loss of the chance to bring a legal claim.

In Maharaj v National Energy Corporation of Trinidad and Tobago (2019) UKPC 5 the Privy Council considered provisions resembling those in England and Wales relating to delay in making an application for leave to apply for judicial review, and, in particular, the precise significance of the presence, or absence, of prejudice to the rights of any person, or detriment to good administration, resulting from the grant of leave, or of any relief.  Lord Lloyd-Jones said:-

“26. The classic exposition of the approach to delay in applications for judicial review in England and Wales is to be found in the speech of Lord Goff of Chieveley in Caswell. … even if there is good reason for extending time, the court may still refuse leave on grounds of prejudice or detriment. Caswell concerned the inter-relationship of section 31 of the Supreme Court Act 1981 and RSC Order 53, rule 4.2 Lord Goff agreed with the reasoning and conclusion of Ackner LJ in Jackson that even though a court may be satisfied that there was good reason for the failure to apply promptly or within three months, the delay, viewed objectively, remains “undue delay” and the court therefore retains a discretion to refuse to grant leave or the relief sought on the substantive application on the grounds of delay if it considers that it would be likely to cause substantial hardship or prejudice or would be detrimental to good administration. … The court, however, had the power to grant leave despite the fact that the application was late if it considered that there was good reason to exercise that power. … Read more »

In R (Ames) v Lord Chancellor (2018) EWHC 2250 (Admin) a Divisional Court (Holroyde LJ and Green J) revisited the issue of when a public law function is being exercised with can properly be the subject of judicial view. The Defendant contended that the challenged decision was made at the conclusion of a course of negotiation of a contract and lacked any public law element. Following a review of the authorities, the Court, at paragraph 55, derived the following principles:- Read more »