In Holmes v Information Commissioner and Cumbria County Council, EA/2016/0256  the First-Tier Tribunal upheld the Commissioner’s decision refusing to order the County Council to disclose a Counsel’s Opinion.  Regulation 12(5)(b) of the Environmental Information Regulations was engaged, but the balance of public interest was against disclosure.  Nor had legal professional privilege been waived by the County Council, notwithstanding that the Committee Report had stated that “expert legal advice has been sought from counsel on the matter and counsel has confirmed that this is an appropriate way to proceed”. Read more »

In R v AB and others (2017) EWHC Crim 534 the Court of Appeal (Criminal Division) has held that a local authority did not have power under Section 222 of the Local Government Act 1972 to bring a prosecution for defrauding the Legal Aid Agency (“the LAA”).  The Fraud Investigation Department (“FID”) of the authority had carried out an investigation for the LAA.  No issue was raised as to the power to investigate.  The Court said:- Read more »

In R (Liverpool City Council and others) v SoS for Health (2017) EWHC 986 (Admin) four English councils sought to challenge the Government’s “ongoing failure to provide full, or even adequate, funding for local authorities in England to implement the deprivation of liberty regime“, the costs of complying with which have proved to be very substantial, following the Supreme Court Judgment in Cheshire West. They suggested that the financial shortfall suffered by councils across the country generally is somewhere between one third of a billion pounds and two thirds of a billion pounds each year and claimed that the Government must meet that shortfall. They sought a declaration that, by his failure to meet those costs, the Secretary of State for Health (“the SoS”) had created an “unacceptable risk of illegality” and was in breach of the policy constituted by the “New Burdens Doctrine” (“the NBD”). They sought a mandatory order requiring the SoS to remove the “unacceptable risk of illegality” and to comply with the NBD. Read more »

In Chalfont St Peter Parish Council v Holy Cross Sisters Trustees Inc (2017) EWHC 777 (QB), a claim against a religious Order for conspiracy to injure, which effectively alleged that the Order had obtained planning permission for the residential development of its land by making fraudulent and deceitful misrepresentations about the prior use of the land, was permitted to proceed to trial. The Court refused to strike out the claim as an abuse of process, even though the planning permission had already been challenged in judicial review proceedings, because it had not been open to the claimant to allege fraud in those proceedings.  Summary judgment was also refused.

Allegations of fraud were not to be made lightly, especially against the type of defendant in the instant case. It was a professional rule that lawyers could only allege fraud on clear instructions from their client, and with seemingly credible evidence in support.  That rule had been scrupulously observed in the instant case.  There was credible evidence that the area had been used as a playing field by the school, and that that must have been common knowledge.  Nevertheless, when interviewed by the Parish Council’s solicitor, the former caretaker of the school had affirmed his recollection that the area had not been used as a playing field. The court sympathised with the Sisters in the fact that fraud was being alleged six years after the event and after multiple hearings about the same subject-matter, but could not strike out the claim for the following reasons: (a) it had not been open to the Council to allege fraud in the judicial review proceedings, because it was not the purpose of such proceedings to make findings of fact; (b) in order to prove a mistake of fact in judicial review proceedings, a party could only rely on new evidence if that evidence was uncontentious; (c) whilst there was precedent for the review by the Administrative Court of decisions vitiated by the fraud of the decision-maker, there was no authority to support the proposition that there was a legitimate ground of review where the decision-maker had acted properly, but the applicant had procured the decision by fraud. The remedy in such a case would be an action in fraud; (d) the decision not to allege fraud during the earlier proceedings had been taken upon legal advice, and that advice could not be said to be wrong.  Given those reasons, it was reasonable for the Parish Council to have exhausted their remedies in the judicial review proceedings before bringing the instant case. It could not be characterised as a collateral attack on the decisions arrived at in the judicial review process, because the Sisters had not been a party to those proceedings, and the remedy sought was quite different. The case was not suitable for summary judgment. It could not be said that the Parish Council had no real prospect of success on the issues. Further evidence and a closer examination of the facts was required.

Principles relating to delay in judicial review proceedings have been restated as follows by Lewis J in R (Sustainable Development Capital LLP) v SoS for Business, Energy and Industrial Strategy (2017) EWHC 771 (Admin).  The case concerned the proposed sale of a publicly-owned asset. The claimant sought to challenge the defendant’s award of preferred bidder status and a period of exclusivity to another party.

The first issue was whether the claim was brought within the time prescribed by CPR 54.5.  Lewis J said (paragraphs 31, 32 and 35):-

(1) A claim for judicial review must be brought promptly;

(2) It must be brought in any event not later than 3 months after the date when the grounds of challenge for first making the claim arose;

(3) The test is one of promptness; Read more »

The appeal in Oakley v South Cambridgeshire District Council (2017) EWCA Civ 71 raised the issue whether, in the particular circumstances of the case, the Planning Committee of the South Cambridgeshire District Council ought to have given reasons for granting planning permission for the development by Cambridge City Football Club, a semi-professional club, of a football stadium capable of seating three thousand people. The proposed construction is in the outskirts of Sawston in Cambridgeshire, on land which is part of the Green Belt. The application for planning permission was not only for the erection of the ground, together with associated training and parking facilities, but also for the creation of a partially floodlit recreational ground which would be gifted to the Sawston Parish Council for community use. Read more »

See R (Zahid) v Manchester University (2017) EWHC 188 (Admin), on judicial review as a remedy of last resort and alternative remedies, at paras 50-68, and on extensions of time for claim to be issued, at paras 73-94.

In Wolverhampton, Dudley, Sandwell and Walsall MBCs v Green and Charlesworth (2017) EWHC 96 (QB) the Councils had obtained injunctions against persons unknown prohibiting car cruising in a specified area and the issue before the High Court was sentence for breach.  Suspended sentences of imprisonment were imposed on two offenders who had breached the injunction. They had been part of a convoy of nine cars that had deliberately flouted the injunction and caused nuisance and disruption to local residents.  An aggravating feature was the uploading of a video to social media inviting others to join them.

In Hillingdon LBC v SoS for Transport [2017] EWHC 121 (Admin) Cranston J has held that on a proper construction of Section 13(1) of the Planning Act 2008, a legal challenge relating to a National Policy Statement could be brought only in the six-week period after the statement was designated or published. The Court did not have jurisdiction to hear the claimants’ application for judicial review of a decision of the Secretary of State for Transport to select for inclusion in a draft National Policy Statement a proposal for a third runway at Heathrow Airport. Read more »

In Southwark Council v Various Lessees of the St Saviour’s Estate (2017) UKUT 10 (LC) the Council appealed against a decision of the First-tier Tribunal preventing it from recovering the whole amount it had expended on works to residential flats through the service charge payable by the occupants. The Council submitted that the FTT had not applied the correct test on disrepair, and erred in finding that there was little evidence of the condition of the communal fire doors and in allowing an arbitrary figure of 50% without giving the parties the opportunity to comment.  The Upper Tribunal dismissed the appeal.  The FTT had been unable to accept the Council’s evidence on the communal fire doors and was not satisfied with the lessees’ evidence. It had been entitled to take that view of the evidence, to accept the fire risk assessments, and to take a broad-brush approach to the appropriate allowable figure.  The 50% figure was not arbitrary, but resulted from the FTT’s evaluation of the available evidence.  Had the FTT used its own knowledge or expertise to challenge the Council’s methodology or figures during the course of the proceedings, it would have been appropriate to give the parties an opportunity to comment.  However, after the close of the evidence, it had simply evaluated the evidence and reached a decision.  It had been entitled to take a robust approach and to arrive at a figure based on the evidence together with its own knowledge and expertise.  It would only be in exceptional cases that, during the course of its deliberations, a Tribunal would ventilate what it was proposing before reaching a final determination. Read more »