In Hunt v North Somerset Council [2015] UKSC 51 the Supreme Court unanimously allowed an appeal by Mr Hunt in relation to costs from (2013) EWCA Civ 1320. Mr Hunt suffers from ADHD, learning difficulties and behavioural problems. As a result, the Council were statutorily required, so far as reasonably practicable, to secure access for him to sufficient educational and recreational-leisure time activities for the improvement of his well-being. On 21 February 2012, the Council made a decision to approve a reduction of £364,793 from its youth services budget for 2012/2013. Mr Hung brought judicial review proceedings of that decision. He argued that the decision was unlawful on two grounds: (1) the Council had failed its duty under Section 507B of the Education Act 1996 to take properly into account the views of young persons with difficulties such as his; and, (2) it failed to fulfil its public sector equality duty under Section 149 of the Equality Act 2010 to have due regard to the equality needs of disabled individuals.

Wyn Williams J rejected Mr Hunt’s challenges to the legality of the decision. The Court of Appeal allowed Mr Hunt’s appeal. It, nonetheless, refused to make a quashing order, considering that it was too late to unwind the entire revenue budget for the financial year. It also ordered him to pay half of the Council’s costs. Mr Hunt appealed to the Supreme Court on the basis that the Court of Appeal should have made an order for costs in his favour (and a declaration that the Council had failed in its statutory obligation.

In relation to costs, the Supreme Court said (paragraph 15), that although the discretion of a Court in a matter of costs is “wide” and it is “highly unusual” for the Supreme Court to entertain an appeal on the issue of costs, the Court of Appeal said that it reached its decision “as a matter of principle”, treating the Council as the “successful party”. The Supreme Court ruled that in that respect the Court of Appeal fell into error. As the Court of Appeal rejected the Council’s case on the two issues, it was only successful in the limited sense that the findings of failure came too late to do anything about what had happened in the past, although this occurred through no fault on Mr Hunt’s part. It was unsuccessful on the substantive issues regarding its statutory responsibilities

The Supreme Court went on to say (per Lord Toulson):-

“16. There are also wider public factors to consider.  Public law is not about private rights but about public wrongs … A court may refuse permission to bring a judicial review claim if it considers the claimant to be a mere meddler or if it considers that the proceedings are unlikely to be of sufficient significance to merit the time and costs involved.  But in this case the court considered that the issues were of sufficient significance to give permission.  And the ruling of the court, particularly under Section 149, contained a lesson of general application for local authorities regarding the discharge by committee members of the council’s equality duty. If a party who has been given leave to bring a judicial review claim succeeds in establishing after fully contested proceedings that the defendant acted unlawfully, some good reason would have to be shown by he should not recover his reasonable costs.

17. I cannot see that the fact that in this case the determination of illegality came after it was too late to consider reopening the 2012/13 budget provided a principled reason for making the appellant pay any part of the respondent’s costs.  On the contrary, for the reasons stated the appellant was in principle entitled to some form of cost orders in his favour. …”

The Judgment of Green J in R (British Academy of Songwriters, etc) v SoS for BIS [2015] EWHC 1723 (Admin) is very long (106 pages, 318 paragraphs) and its subject matter (creating an exception to copyright based upon personal private use) is far removed from local government.  However, it is important on judicial review generally (and on State Aid).  The Judge addresses (paragraphs 127-148 inclusive) the appropriate standard of review, how intense the review should be, emphasizing that the Court must not, even in a case of intensive review, substitute its own view of the merits for that of the decision maker.  He addresses (paragraphs 149-163 inclusive) the question whether the relevant provision in an EU Directive had “direct effect”.  He addresses (paragraphs 164-168 inclusive) the principles of law governing consultations (and the appraisal of evidence), and in particular the fourth Gunning principle, that the product of consultation must conscientiously be taken into account by the decision maker, observing that this principle reflects two broader principles, first, that a decision must be based upon a reasonable view of the evidence it is said to be based upon, including the product of consultation, and, secondly, that the outcome must not be predetermined, because if it is then the decision-maker will not have acted “fairly”, and fairness is “the leitmotif of the principles governing consultations”.

The Judge observed (paragraph 9) that the Government had a “strong predisposition”, which it set out clearly in the consultation document. Nonetheless he rejected (paragraphs 274-281 inclusive) a challenge based on alleged predetermination.  He stated (paragraph 277):-

“… the Secretary of State was entitled to have a strong predisposition. The distinction between a predisposition and predetermination is well understood in the law. A decision maker may consult upon an issue that he has a firm view about. Indeed, if the decision maker’s cards are laid squarely upon the table consultees are fully informed as to that predisposition and have the clearest possible target at which to aim their submissions. A strong predisposition is not, therefore, inimical to a fair consultation assuming, of course, that the decision maker is prepared to keep an open mind and be willing to change his or her views if the evidence and submissions tendered are properly persuasive.”

Finally, the Judge considers (paragraphs 282-315 inclusive) the issue of whether there was unlawful State Aid and the approach to be adopted.  Green J stated:-

“283.     Article 107(2) and (3) TFEU stipulate that aids of certain types either shall or may be compatible with the internal market and that the determination on whether an aid is so compatible is the exclusive prerogative of the European Commission: see for example Case C-354/90 FNCEPA [1991] ECR I-5505 at paragraph 14. Article 108(3) TFEU imposes upon Member States an obligation to inform the Commission of plans to grant or alter aid and it prohibits the implementation of proposed measures pending such notification. It has been long established that Article 108(3) TFEU is directly effective. As such, it may be relied upon before domestic courts as a ground for impugning the legality of a legislative measure said to constitute unnotified and hence unlawful state aid. In such a challenge the court must form its own view as to whether the impugned measure or act does, or does not, involve the grant of an aid within the meaning of the Treaty: see, for example, R v Customs & Excise Commissioners ex p Lunn Poly Limited [1999] 1 CMLR 1357 at paragraphs 22–24 per Lord Woolfe MR. If the measure does amount to “aid” and it has not been duly notified to the Commission then it is unlawful.

284.      The analysis to be undertaken of “aid” by a Court may involve the consideration of a number of quite different components. In my judgment the question whether there is aid “through State resources” is an objective question for the Court and does not involve the conferral of any margin of appreciation upon the decision maker. The facts which must be considered by the Court do not involve any evaluative judgment on the part of the Defendant; the Court simply has to identify the manner in which the advantage allegedly comes about and then assess the nature of the link between the advantage and the State budget in terms of the closeness and strength of the nexus. The relevant facts are fixed and within a relatively narrow compass. It is possible that the Court, in another case involving other component parts of the definition of “aid”, might need to adopt a more limited review. So, for instance, if the issue was whether the market investor test was satisfied and it could be shown that on one reasonable analysis the test was met a Court might be loathe to substitute its own view for that of the decision maker. I do note in this regard however that the Court of Justice has stated that even where the analysis of whether “aid” exists is “technical or complex” the Court (in casu a judicial review by the General Court of a decision of the Commission) must conduct a “comprehensive review”: see e.g. Case C-487/06P British Aggregates Association v Commission [2008] ECR I-10515 paragraph 114. I emphasise however that no such complex technical or economic issue arises on the facts of the present case and I do not therefore express any view on how a Court would address other more complex components of “aid”.”

Green J then (paragraphs 285-288 inclusive) analysed the four constituent elements of State Aid, and concluded (paragraphs 299-314 inclusive) that there was no aid granted “through” State resources (the second constituent), applying the propositions that he set out at paragraph 306.

In R (London College of Finance & Accounting) v SSHD) (2015) EWHC 1688 (Admin) Cobb J’s observations included the following:-

1. CPR 54.16 could not be clearer. It provides that no written evidence may be relied on unless it has been served in accordance with any rule, or direction of the Court, or the Court gives permission. This rule must be faithfully and strictly observed;

2. Orders, including interlocutory orders, for the filing and service of evidence must be obeyed and complied with to the letter and on time.  Court orders are not preferences, requests or mere indications;  they are orders; there is a public interest in enforcing compliance with Court orders, particularly where the breach is serious and/or significant;

3. Any party in a judicial review claim who seeks to adduce evidence outside the parameters of CPR 54.16 is under an obligation to apply to the Court to adduce that evidence or where relevant for a variation of the order granting permission to file. A person who finds himself unable to comply timeously with his obligations under an order should apply for an extension of time before the time for compliance has expired;

4. If it is possible and practicable, any application for permission to rely on new evidence should be determined before the substantive listed hearing, so that the parties and the Court know where they stand and what they have to read;

5. If it is not possible or practicable to make a decision on the admissibility of the new evidence before the hearing, the Court may have to consider converting the substantive or rolled-up hearing to a case-management hearing; costs orders may follow;

6. In order to promote the efficient and proportionate conduct of litigation, parties are not merely required to comply with the rules and court orders, they are also obliged to co-operate with each other;

7. Within the framework of the Rules, the Administrative Court retains powers to manage its cases flexibly and in accordance with the overriding objective; in this regard it will ensure that no unfairness is caused to the parties.

The Queen’s Speech announces a draft Public Service Ombudsman Bill the main elements of which would include the creation of an overarching Public Service Ombudsman organisation which would include the functions of the Local Government Ombudsman.  A consultation closes on 16 June 2015.

If a local authority decides, for financial reasons, not to defend judicial review proceedings, what duties does it have to the Court?  This was a question addressed by Singh J in R (Mid Counties Coop) v Forest of Dean DC [2015] EWHC 1251 (Admin). The case concerned a planning decision.  Singh J observed as follows:-

“148. As I have mentioned, the Defendant has not taken any active part in these proceedings and has left the Interested Party to defend its decision. That is not unusual in a case where, for example, a defendant public authority concedes the claim for judicial review but an interested party wishes to resist the challenge and may well be successful in doing so. What is unusual in the present case is that the Defendant has informed the Court in a letter that it does not concede the claim but, since it cannot afford to take an active part in the proceedings for financial reasons, it supports the Interested Party in its resistance to the challenge. While it is readily understandable that public authorities are facing increasing financial pressures, the stance taken by the Defendant could lead to tension with certain fundamental aspects of the way in which judicial review proceedings are conducted.

149. It is well established that judicial review litigation is not to be conducted in the same way as ordinary civil litigation. This is not only because there are specific provisions in Part 54 of the Civil Procedure Rules 1998 which govern judicial review. More fundamentally, it is because the relationship between a public authority defendant and the court is not the same as that between an ordinary litigant and the court. In particular it has been clear since the decision of the Court of Appeal in R v Lancashire County Council, ex p. Huddleston [1986] 2 All ER 941 that a public authority defendant in judicial review proceedings has a duty of candour and co-operation so as to assist the court in understanding its decision-making process and deal with the issues fairly. It should conduct the litigation with its cards face upwards. This is based on the concept that it acts in the public interest, and not merely to protect a private, commercial interest.

150. There are circumstances in which an interested party will also be subject to the duty of candour and co-operation: Belize Alliance of Conservation Non-governmental Organisations v Department of the Environment [2004] UKPC 6 [2004] Env LR 38, in particular at para 87 (Lord Walker of Gestingthorpe). In that case the interested party and defendant were partners in a joint project. However, this will not necessarily meet all the practical issues which may arise: for example, an interested party may not have in its possession all relevant documents in order to be able to assist the court to understand the decision-making process of the public authority whose decision is under challenge.

151. It seems to me that, if a defendant public authority finds itself in the position where it cannot, for financial reasons, defend its own decision in judicial review proceedings, and in particular where it cannot file a skeleton argument or make oral submissions at a substantive hearing, it should at least consider the following:

1. whether it has complied with its duty of candour and co-operation, by disclosing all relevant documents;
2. whether its duty of candour and co-operation requires it to file a witness statement to assist the court in understanding its decision-making process and dealing with the claim for judicial review fairly;
3. whether it should file an acknowledgement of service, with summary grounds of resistance, even if only in outline form, so that at least the gist of why it maintains that its decision is correct in law is explained;
4. whether a representative of the authority (not necessarily a lawyer) should be present in court at any hearing, so that the authority is in a position to know what is going on and it can rapidly take steps to deal with points which may arise unexpectedly or answer judicial questions if invited to do so.”

In Birmingham City Council v Riaz and others [2014] EWHC 4247 (Fam) the applicant Council applied for, and obtained Injunctions, under the Court’s inherent jurisdiction, in respect of ten male respondents to prevent child sexual exploitation (“CSE”) by ordering them not to have any further contact or association with a vulnerable girl, or with any female under the age of 18 years, previously unknown to them, in a public place.  The Judge (para 7) described the Council as having taken “a bold and novel step”.  The Judge concluded (para 46) as follows: “I am of the firm view that the use of the inherent jurisdiction to make injunctive orders to prevent CSE strikes at the heart of the parens patriae jurisdiction of the High Court.  I am satisfied that none of the statutory or the “self imposed limits” on the exercise of the jurisdiction prevent the Court from making the orders sought by the local authority in this case”.

The Judge also addressed the issue of a Reporting Restrictions Order (“RRO”), balancing ECHR Arts 8 and 10.  The Judge observed (para 61) that “the mere fact that sections of the press and broadcast media may report the matter sensationally or inappropriately forms no ground for making a RRO”.  He concluded (para 153) that he had no doubt that the balance fell clearly in favour of the Art 10 rights of the press and broadcast media.

R (Stirling) v Haringey LBC [2013] EWCA Civ 116, (2013) LGR 251, is now entitled R (Moseley) v Haringey LBC. The authority consulted upon a Council Tax Reduction Scheme (CTRS). Following the consultation, the Government announced a Transitional Grant Scheme (TGS). The authority adopted a CTRS without re-consultation, claiming that the TGS did not affect the draft scheme. The consultation process was alleged to be unfair and unlawful because (1) consultees had not been provided with sufficient information to understand that there were alternatives to the draft scheme; and (2) the Respondent should have re-consulted when the TGS was announced.

On 19 June 2014 the Supreme Court heard an appeal from the decisions of the High Court and the Court of Appeal rejecting that argument.  The issues before the Supreme Court are:  (i) the extent of the duty to consult set out in paragraph 3(1)(c) of Schedule 1A to the Local Government Finance Act 1992 in respect of Council Tax Reduction Schemes; (ii) whether the authority was required to provide information to consultees on alternative options to its preferred proposal in circumstances where those alternatives were reasonably obvious; and (iii) whether the authority was required to draw consultees’ attention to a new factor which emerged during the course of the consultation process.  This is remarkably the first occasion on which the Supreme Court has considered the public law principles which govern the content of the duty to consult.

Should an order for specific disclosure be made in a judicial review application even before permission has been granted and where permission has been refused on paper?   That was the issue raised in R (Sky Blue Sorts & Leisure Ltd) v Coventry City Council [2013] EWHC 3366 (Admin), where such disclosure was refused.

Mr Justice Silber observed that the application was “extremely unusual”, having been made after Males J had already determined on the papers that the Claimants’ grounds of review were unarguable.  Silber J noted that neither he nor any of his colleagues knew of any case in which an order for specific disclosure had been made on a judicial review claim before permission had been granted.

The Claimants argued that disclosure of certain documents referred to in the Council’s Summary Grounds of Resistance and supporting materials was “necessary” in order to resolve their application for permission ‘fairly and justly’, as required by the test in Tweed v Parades Commission for Northern Ireland [2007] 1 AC 650.

Silber J rejected these arguments and agreed with the Council that further disclosure was not necessary at this stage. In particular, His Lordship held that:

– “A renewed permission application is a different animal from a substantive hearing”, and permission would be granted where “on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case” (citing Lord Diplock in R v IRC ex p. Nat-Fed [1982] AC 617). In those circumstances, the Claimants already had “enough material to put forward a respectable case (if not their very best case) on most of the issues to be raised on the renewed permission application”; and

– There was no reason why the Claimants could not point to the Council’s decision not to disclose certain documents at the permission hearing, in order to support their argument that permission should be granted to investigate all of the facts in full.

His Lordship also mentioned that, if he had not dismissed the application for those reasons, then he might have dismissed it in any event, if he had concluded that the documents sought were not “highly relevant” to the issues, or because of the Claimants’ delay in making the application, which would have caused “serious prejudice” to the Council if the oral renewal hearing (listed for late November 2013) had to be postponed.

The owners of Coventry City Football Club had been refused permission to seek judicial review of the Council’s decision to loan £14.4m to the company that manages the Ricoh Arena (“ACL”), where the club used to play its home games. 

The Claimants argue that the loan was an unlawful State Aid, and that the Council had made the loan for the improper purpose of seeking “to compel [the Claimants] to relinquish ownership of the Club”. The Claimants also argue that the loan was irrational and ultra vires, and that the Council was guilty of misfeasance in public office.

After considering the application on the papers, Mr Justice Males on 31 July 2013held that:-

The claim had not been brought promptly, having been filed on the last day of the 3 month time limit or 1 day late, and there was no good reason for the delay;

– It was unarguable that the Council’s loan to ACL was a State Aid. The loan was made on commercial terms, and in order to protect the Council’s investment in ACL, in which it is a 50% shareholder; and

– The Claimants’ other grounds of review were also unarguable. The Council took its decision in order to protect its investment in ACL, and not in order to harm the Claimants’ commercial interests or to force them to relinquish ownership of the Club.

The appeal to the Supreme Court in Woodland v Essex County Council [2013] UKSC 66 arose from a tragic incident at a swimming pool in Essex when the appellant suffered a serious hypoxic brain injury during a school swimming lesson.  She was then aged 10.  She was a pupil at a Junior School for which the County Council as local education authority, was responsible. The swimming lesson took place in normal school hours, as required by the National Curriculum.

The appellant was assigned to a group being taught by a swimming teacher.  A lifeguard was also in attendance. It was alleged on the appellant’s behalf that both negligently failed to notice that she had got into difficulties in the water, causing her to suffer the injury. Neither was employed by the Council.  Their services had been provided to the Council pursuant to a contract.

The appellant issued proceedings for negligence against a number of parties, including the Council. Her case against the Council included an allegation that it owed her a “non-delegable duty of care”, with the result that it was liable for any negligence on the part of either the teacher or the lifeguard.  The Council denied that it owed such a duty.  It applied to strike out this allegation against it.

The allegation was struck out in the High Court.  This decision was upheld in the Court of Appeal.

However, the Supreme Court unanimously allowed the appeal against the order striking out the allegation of a non-delegable duty. The case will now return to the High Court to determine whether the appellant was in fact a victim of negligence.

The question before the Court was the scope of the Council’s duty to pupils in its care: was it a duty to take reasonable care in the performance of the functions entrusted to it only if it performed those functions itself, through its own employees; or was it to procure that reasonable care was taken in their performance by whomever it might get to perform them – a non-delegable duty?

The starting point is that non-delegable duties of care are inconsistent with the fault-based principles on which the law of negligence is based.  They are therefore exceptional.   However, English law has recognised that non-delegable duties can arise in cases with the following characteristics:

 (1)              the claimant is a patient or child or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury;

(2)              there is an antecedent relationship between the claimant and the defendant independent of the negligent act or omission itself (i) which puts the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm in the performance of those obligations and not just a duty to refrain from conduct which will foreseeably damage the claimant;

(3)              the claimant has no control over how the defendant chooses to perform those obligations;

(4)              the defendant has delegated some function which is an integral part of the positive duty which he has assumed towards the claimant and the third party is exercising the defendant’s custody or care of the claimant and the element of the control that goes with it; and

(5)              the third party has been negligent in the performance of the very function assumed by the defendant and delegated by the defendant to him.

The Supreme Court says that it is fair, just and reasonable to impose such duties. It is consistent with the long-standing policy of the law to protect those who are inherently vulnerable and subject to a significant degree of control. It is wholly reasonable that a school should be answerable for the performance of part of its own educational function. Parents are required by law to entrust their child to a school and have no knowledge or influence over the arrangements that the school may make to delegate specialised functions, or the competence of the delegates. It is not an open ended liability and will only cover functions which the school has assumed for itself a duty to perform rather than to arrange for its performance, and only where control over the child has been delegated. The recognition of this duty has become more significant as a result of increased outsourcing of educational and supervisory functions but only replaces duties which the school formerly owed when the functions were performed by its staff.

On the facts of this case, as pleaded by the appellant, the Council had delegated the control of the appellant to third parties to carry out an integral part of its teaching function during school hours, in a place where the school chose to carry out this part of its functions. If it is found that the third parties were negligent, then the Council will be in breach of duty.

The Civil Procedure (Amendment No.4) Rules 2013, SI 2013/1412 (L.14), in force from 1 July 2013, provide that planning judicial reviews must be brought within 6 weeks, procurement judicial reviews must be brought within the same time limits as in the Public Contracts Regulations, and that claims certified as totally without merit on the papers may not renew to an oral hearing.