Legitimate Expectation

July 1st, 2016 by James Goudie KC

Three cases hot off the press more or less together on legitimate expectation. First and foremost the decision of the Privy Council in United Policyholders Group v Attorney General of Trinidad and Tobago [2016] UKPC 17.  Lord Neuberger gives the main Judgment.  He restates the basis of the doctrine: (i) where a public body (ii) states that it will do (or not do) something (iii) a person who reasonably (iv) relied (v) on that statement (vi) should (vii) in the absence of good reasons (viii) be entitled to rely on the statement and (ix) enforce it through the Courts.  He reaffirms at paragraphs 37/38 a number of points: (1) in order to found a claim based on the principle, it is clear that the statement in question must be “clear, unambiguous and devoid of relevant qualification”; (2) the principle cannot be invoked if, or to the extent that, it would interfere with the public body’s statutory duty; (3) however much a person is entitled to say that a statement by a public body gave rise to a legitimate expectation on his part, circumstances may arise where it becomes inappropriate to permit that person to invoke the principle to enforce the public body to comply with the statement, either on account of (2) above or if, taking into account both the fact that the principle applies and in all other relevant circumstances the public authority should or could reasonably decide not to comply with the statement.  Lord Neuberger continues, at paragraph 39, that it is clear that legitimate expectation can be invoked in relation to most, if not all, statements as to procedure, but it is unclear how far it can be implied in relation to statements as to substantive matters, for instance statements in relation to the macro- economic/macro-political field.  On this occasion, it was unnecessary to consider the law on this “difficult and important topic” more fully.

Lord Carnwath gave a lengthy concurring Judgment. He concluded, at paragraph 121:

“In summary, the trend of modern authority, judicial and academic, favours a narrow interpretation of the Coughlan principle, which can be simply stated. Where a promise or representation, which is “clear, unambiguous and devoid of relevant qualification”, has been given to an identifiable defined person or group by a public authority for its own purposes, either in return for action by the person or group, or on the basis of which the person or group has acted to its detriment, the court will require it to be honoured, unless the authority is able to show good reasons, judged by the court to be proportionate, to resile from it. In judging proportionality the court will take into account any conflict with wider policy issues, particularly those of a “macro-economic” or “macro-political” kind.”

In R (Lahrie Mohamed) v HMRC, Judgment 28 June 2016, Elizabeth Laing J stated the principles thus: that to establish a legitimate expectation as a result of a particular representation it had to be shown that (1) a claimant had put all his cards on the table, (2) a representation had been made, (3) the representation was clear, unambiguous and devoid of any relevant qualification, (4) the representation had been relied upon by the claimant, (5) and it had been relied upon to his detriment.  She added that it was especially difficult to satisfy the requirement that a claimant had to put all his cards on the table where it had been a purely oral exchange.

In R (Biffa Waste Services Ltd) v HMRC [2016] EWHC 1444 (Admin) Sir Kenneth Parker considered legitimate expectation as a result of guidance by way of what is to be regarded as a general statement.  He restated the law on legitimate expectation/abuse of power from paragraph 77.  He accepted that the determination of the meaning and scope of any representation or assurance by a public authority is not an exercise in mere semantics.  The Court, having regard to the relevant legal and factual circumstances, must ascertain, where appropriate, what is fairly and reasonably implicit in such assurance: “Evaluating the fairness of the conduct of a public authority is not an exercise in semantics: it is necessary to ascertain, against the relevant legal and factual matrix, what the representation fairly and reasonably meant to those to whom it was made”.

At paragraph 115 Kenneth Parker J added: “On the footing … that public law recognizes a principle of conspicuous unfairness I would have been prepared to hold, had it been necessary, that a public authority … may not, without infringing that principle, put forward as the true meaning of a particular representation an interpretation that is wholly inconsistent with what the public authority intended at the time of that representation in question.”

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