Loss of a chance

February 13th, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

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.


Delay in applying for Judicial Review

January 31st, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

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 »


Amenability to Judicial Review

August 29th, 2018 by James Goudie QC in Judicial Control, Liability and Litigation

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 »



July 3rd, 2018 by James Goudie QC in Judicial Control, Liability and Litigation

Dr B v GMC (2018) EWCA Civ 1497 is a “mixed data case”. The majority of the Court of Appeal has ruled that in such a case there is no presumption under the DPA of non-disclosure.   Sales LJ said:-

Read more »



July 3rd, 2018 by James Goudie QC in Judicial Control, Liability and Litigation

In North Warwickshire Borough Council v Persons Unknown (2018) EWHC 1603 (QB) the High Court granted an injunction prohibiting “street cruising” in a local authority area. The jurisdiction to make the injunction was as follows.

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Administrative Law Principles

May 17th, 2018 by James Goudie QC in Judicial Control, Liability and Litigation

In R (Gallager Group Ltd) v The Competition and Markets Authority (2018) UKSC 25 the Supreme Court has ruled that:-

(1) The domestic law of the UK does not recognize equal treatment as a distinct principle of administrative law: paragraph 24;

(2) It is not an absolute rule: ibid;

(3) In domestic administrative law issues of consistency may arise, but generally as aspects of rationality: paragraph 26;

(4) A legitimate expectation of being treated equally tells one nothing about the legal consequences of such an expectation, in terms of rights and remedies in public law: paragraph 30;

(5) Simple unfairness as such is not a ground for judicial review: paragraph 32;

(6) Substantive unfairness is not a distinct legal criterion: paragraph 41;

(7) The addition of terms such as “conspicuous” or “abuse of power” adds nothing to the ordinary principles of judicial review, such as irrationality and legitimate expectation: ibid.


Judicial Review

April 26th, 2018 by James Goudie QC in Judicial Control, Liability and Litigation

Section 31(2A) of the Senior Courts Act was introduced by Section 84 of the Criminal Justice and Courts Act 2015, coming into effect on 13 April 2015. It provides:

“(2A) The High Court –

(a) must refuse to grant relief on an application for judicial review … if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.”

The forms of relief referred to in Section 31(1)(1) include “(a) a mandatory, prohibiting or quashing order” and “(b) a declaration or injunction under subsection (2)”. Subsections (2B) and (2C) state:

“(2B) The court may disregard the requirements in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest.

(2C) If the court grants relief … in reliance on subsection (2B), the court must certify that the condition in subsection (2B) is satisfied.” Read more »


Insolvency Proceedings

January 11th, 2018 by James Goudie QC in Judicial Control, Liability and Litigation

In China Town Development Co Ltd v Liverpool City Council (2017) EWHC 3347 (Ch) the High Court granted an injunction preventing the City Council from presenting a winding-up petition. There was a genuine argument that a premium for two leases was not due on completion of the first lease.  Barling J concluded that insolvency proceedings were not the appropriate vehicle for resolving a genuine dispute on substantial grounds as to the interpretation of the agreement or whether it should be rectified.  The principles were restated as to interpretation and rectification of contracts.


Whether Duty of Care

January 2nd, 2018 by admin in Judicial Control, Liability and Litigation

The Court of Appeal in CN v Poole Borough Council (2017) EWCA Civ 2185 held that there was no tortious duty of care on the part of the local authority in making a housing placement to protect children from harassment and abuse by neighbours.  Irwin LJ concluded:-

“93.    It is common ground that Parliament did not create a right of private law action for breach of the duties, or negligence in the exercise of the powers, under the Children Act relevant to this case. … the matter must be approached in terms of the existence or absence of a common law duty of care, not in terms of immunity from a duty of care which would implicitly otherwise exist. … policy considerations … bear on whether a duty of care exists, not on immunity. Read more »


Working Time

November 29th, 2017 by James Goudie QC in Judicial Control, Liability and Litigation

On 29 November 2017 the European Court of Justice (“the ECJ”) has given Judgment in Case C-214/16, King v The Sash Window Workshop Ltd, in which Mr King sought an allowance in lieu of annual leave not taken, or taken but not paid, for the years 1999 to 2012, the entire period of his engagement by the Defendant. The Defendant rejected the claim on the basis that Mr King was self-employed.  By the time the case reached the ECJ it was common ground that Mr King was nonetheless a “worker” for the purposes of the Working Time Directive. Read more »