Legal Professional Privilege

August 5th, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

In assessing a FoIA request the in-built “significant weight” to be afforded to LPP is something to be considered in any event. It is not necessary for the party claiming LPP to demonstrate any specific prejudice or harm from the specific disclosure of the documents in question, or to establish either that Council officials would be inhibited from seeking advice if disclosure were made in the case or that advisers would be less likely to provide frank advice. Significant weight needs to be given to the public interest in maintaining LPP.  This does not mean that the LPP exemption is  absolute. All will depend on the public interest factors weighed in the balance. Disclosure is always a possibility which depends on public interest factors which are not in the control of decision-makers and their advisers, but an authority will most often be entitled to obtain legal advice on an issue and to rely on LPP to withhold it even when a request is made under FoIA. That is because of the built-in public interest in maintaining LPP. See FTT at paragraphs 31-35 inclusive in Murray-Smith v Information Commissioner, EA/2021/0039V, 4 August 2021.

 

Policy Challenges

August 2nd, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

In R (A) v SSHD (2021) UKSC 13 the Supreme Court sets out the test for assessing the lawfulness of a policy. That is whether the policy authorises or approves unlawful conduct by those to whom it is directed. There is no requirement for a policy to constitute a comprehensive statement of the law. It may be sufficient to identify broad categories of cases. It is not necessary to Eli I ate every potential legal certainty arising from the detailed application of the guidance. What matters is that the content is not misleading.

The Supreme Court also states that there is no free-standing ground of challenge of unacceptable risk of illegality.

 

Irrationality

July 26th, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

To be unreasonable in the public law sense a decision must be irrational or outside the range of reasonable responses open to the decision-maker. The intensity of review may differ, but irrationality always presents a high hurdle. A rare example in which irrationality is found in a number of respects is provided by R (GB of Yew Tree Primary School) v SoS for Education (2021) EWHC 2084 (Admin). The Judge was especially critical of the SOS’s treatment of the approach and evidence of the local authority. A suggestion of bad faith or bias on the part of the authority unsupported by evidence was irrational. The case is the first successful challenge to a refusal to revoke an Academy Order.

 

Anonymity

July 26th, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

Claimants wish to bring a claim against a Defendant for misuse of private information, breach of confidence and breach of the Data Protection Act. Should the Claimants be granted anonymity? Should they be permitted to withhold their names and addresses when issuing their Claim Form? This was the principle question in Various Claimants v IPSA (2021) EWHC 2020 (QB). Nicklin J at para 33 refers to the “fundamental rule” of the common law that proceedings must generally be held in public. At para 34 he states that Orders that a party to a civil claim be anonymised in the proceedings and reporting restrictions prohibiting identification are “derogations” from the “principle of open justice”. At para 36 he states that the authorities make clear that derogations from open justice can be justified as ”necessary” on two principal grounds: (1) maintenance of the administration of justice; and (2) harm to other “legitimate interests”. The application for anonymity was refused: para 46.

 

Burden of Proof and Adverse Inferences

July 23rd, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

In Royal Mail Group v Efobi (2021) UKSC 33 the Supreme Court holds that (1) the change in the wording of equality legislation by Section 136 of the Equality Act 2010 has NOT altered the burden of proof in discrimination cases where discrimination is alleged, and (2) whether any positive significance should be attached to the fact that a person, including an actual decision-maker,  has not given evidence depends entirely on the context and particular circumstances and common sense, and not legal rules.

 

Judicial Review and Courts Bill

July 22nd, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

The above Bill has been published on 21 July 2021. It will not be debated in Parliament until the Autumn.

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Liquidated Damages for Delayed Contractual Performance

July 21st, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

In Triple Point Technology v PTT (2021) UKSC 29 the Supreme Court considers general issues about a provision for liquidated damages under a contract and the function of liquidated damages. Parties agree a liquidated damages clause so as to provide a remedy that is predictable and certain for a particular event. There then does not have to be a potentially difficult and time consuming quantification of loss.

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Restitution

July 12th, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

The appeal in School Facility Management Ltd v GB of Christ the King College (2021) EWCA Civ 1053 addressed the question whether, in a claim for restitution of benefits conferred under a contract which was void as ultra vires one of the parties, the provider of the benefits must give credit for all benefits it received, notwithstanding that it has a change of position defence to any restitutionary claim for those benefits it received. The answer is : No.

 

Unlawful Means Tort

July 6th, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

In SoS for Health v Servier (2021) UKSC 24 a seven Justices Supreme Court holds that it is a requirement of the unlawful means economic tort that the unlawful means must have affected the third party’s freedom to deal with the claimant, the dealing requirement.

 

Injunctions

July 1st, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

Valbonne Estates v Cityvalue Estates (2021) EWCA Civ 973 concerns the proper exercise of the Court’s discretion to continue an interim injunction or to re-grant it notwithstanding serious non-disclosure by the applicant when seeking the interim injunction on a without notice basis. At para 47 and following the Court of Appeal sets out the relevant principles. There are no hard and fast rules which must be applied. The Court should take into account all relevant circumstances.

Where there are breaches of the duty of full and fair disclosure on a without notice application, the general rule is that the order should be discharged and the Court should refuse to re-grant it. That is the starting point, especially if the non-disclosure/inaccurate representations are neither inadvertent nor accidental.