CONFIDENTIALITY

November 6th, 2017 by James Goudie KC in Judicial Control, Liability and Litigation

In Western Avenue Properties Ltd v Sadhana Soni (2017) EWHC 2650 (QB) the Court (at paragraph 21) reaffirmed the principles, the Bolkiah principles, applicable to injunctions to restrain professional advisers from acting on the ground that there would be a risk of the unauthorised use of confidential information, as follows.

  1. The Claimants must show that the Defendant was, or had been, in possession of information that is confidential to the Claimants, and to the disclosure of which they have not consented.
  2. They must then show that the information is or may be relevant to the matters in which the interest of the Defendant’s client, is, or may be, adverse to that of the Claimants.
  3. The burden of proof is on the Claimants, but it is not a heavy one.
  4. The Court’s jurisdiction to grant an injunction arises out of the Court’s equitable jurisdiction to protect confidential information.
  5. The Court must consider whether the Defendant has any confidential information received from the Claimants, which is or may be relevant to the dispute between them and the Defendant’s client. If there is confidential information, but it is clear that it is not relevant to the dispute, there is no risk of the misuse of the confidential information.
  6. If the Claimants establish that the Defendant is in possession of confidential information that is, or may be, relevant to the dispute the evidential burden shifts to the Defendant to establish that there is no risk of misuse or disclosure. The risk must be more than “fanciful or theoretical”, but need not be “substantial”.

 

ENVIRONMENTAL OFFENCES

November 6th, 2017 by James Goudie KC in Environment, Highways and Leisure

The Environmental Offences (Fixed Penalties) (England) Regulations 2017, SI 2017/1050, (“the 2017 Regulations”), supplement provisions in Acts for fixed penalties payable in respect of offences relating to the environment. They replace the Environmental Offences (Fixed Penalties) (Miscellaneous Provisions) Regulations 2007 (“the EOR 2007”) (except for Regulation 2(2)(b) and 3(2)(b) of the EOR 2007). The 2017 Regulations prescribe the ranges within which the amounts of certain fixed penalties that are capable of being specified by a local authority are required to fall (Regulations 2 to 5). The ranges for littering, free distribution of printed matter on designated land and graffiti and fly-posting (see Regulations 4 and 5) are different to those under the EOR 2007. For the period beginning with 1 April 2018 and ending with 31 March 2019, the range is not less than £50 and not more than £150 (Regulation 4). From 1 April 2019, the range is not less than £65 and not more than £150 (Regulation 5).

Regulations 6 and 7 amend the Environmental Protection Act 1990 and the Anti-social Behaviour Act 2003 in relation to England to increase the amount of the penalties for littering, free distribution of printed matter on designated land and graffiti and fly-posting where a local authority does not specify an amount. The penalty for each is increased from £75 to £100.

The 2017 Regulations also state a minimum lesser amount which an authority may treat as payment of the full amount if paid before the end of a period specified by the authority in relation to certain fixed penalties (Regulations 8 to 11).

 

 

Conservation of habitats and species

November 3rd, 2017 by James Goudie KC in Environment, Highways and Leisure

The Conservation of Habitats and Species Regulations 2017, SI 2017/1012 (the “Habitats Regulations 2017”) consolidate and update the Conservation of Habitats and Species Regulations 2010 (the “Habitats Regulations 2010”). The Habitats Regulations 2017 consolidate all the various amendments made to the Habitats Regulations 2010 and also introduce a small number of minor amendments designed to take account of changes to other related legislation, such as amendments to Town and Country Planning legislation, rectify previous omissions, or improve the clarity of drafting. Read more »

 

Judicial review

November 3rd, 2017 by James Goudie KC in Judicial Control, Liability and Litigation

In Glencore Energy (UK) Ltd v HMRC (2017) EWCA Civ 1716 the Court considered the relationship between Judicial Review and an alternative statutory remedy.  Sales LJ said (paragraphs 54-56 inclusive) that the principle that Judicial Review would be refused where a suitable alternative remedy was available was not disputed.  However, the basis for the principle had to be considered. The principle did not apply as a result of any statutory provision to oust the jurisdiction of the High Court on Judicial Review. The principle was based on the fact that Judicial Review was ordinarily  a remedy of last resort. However, where it was clear that a public authority was acting contrary to the rule of law, the High Court would be prepared to exercise its discretion without waiting for some other remedial process to take its course. In considering what qualified as a suitable alternative remedy, the Court should have regard to the provisions of Parliament. If Parliament had made it clear through legislation that a particular procedure or remedy was appropriate to deal with a standard case, the Court should be slow to conclude that the public interest required it to exercise its Judicial Review function along with, or instead of, that statutory procedure. Unlawfulness might arise which was not of that standard description, in which case the availability of such a statutory procedure would be less significant.  Treating Judicial Review in ordinary circumstances as a remedy of last resort fulfilled a number of objectives. It ensured that the Courts gave priority to statutory procedures as laid down by Parliament, and avoided expensive duplication of the effort which might be required if two sets of procedures were followed in relation to the same underlying subject matter. It minimised the potential for Judicial Review to be used to disrupt the smooth operation of statutory procedures which might be adequate to meet the justice of the case, and promoted proportionate allocation of judicial resources for dispute resolution, saving the High Court from undue pressure of work.

 

Mental health after-care

November 2nd, 2017 by James Goudie KC in Social Care

The question in Tinsley v Manchester City Council [2017] EWCA Civ 1704 was whether a person who has been compulsorily detained in a hospital for mental disorder under Section 3 of the Mental Health Act 1983 (“the 1983 Act”) and has then been released from detention but still requires “after-care services” is entitled to require his local authority to provide such services at any time before he has exhausted sums reflecting the costs of care awarded to him in a judgment in his favour against a negligent tortfeasor.  The Court of Appeal held that he is so entitled.  It is not the law that a Section 117 claimant can claim against a local authority for after-care services only once any award for such services against a tortfeasor has been, or is about to be, exhausted. Read more »

 

Principles and policies

November 1st, 2017 by James Goudie KC in Decision making and Contracts

Lewis J in R (Lupepe) v SSHD (2017) EWHC 2690 (Admin) considers (paragraphs 48/49) the principle that it is unreasonable, in the public law sense, to disagree with a factual conclusion of an adjudicator who has heard the evidence unless the adjudicator’s conclusion is itself unlawful as a matter of public law (or unless fresh material has become available since the hearing).  An illustration of the principle is the decision of the Court of Appeal in R v Warwickshire County Council ex p Powergen (1996) 97 LGR 617 where the Court of Appeal held that a highway authority could not depart from the decision of a planning inspector on a planning appeal that a particular development did not give rise to highway safety issues and it could not act on the basis that the proposed development would create highway dangers.

Lewis J also considered (paragraphs 61-66 inclusive) the position with respect to unpublished policies and (paragraphs 67-69 inclusive) procedural fairness (opportunity to make representations). The law governing the application of unpublished policies was considered by the Supreme Court in R (Lumba) v Secretary of State for the Home Department (JUSTICE intervening) [2012] 1 AC 245. The Supreme Court concluded that what must be published “is that which a person who is affected by a policy needs to know in order to make informed and meaningful representations to the decision-maker before a decision is made”. Where there is a policy in existence, and its provisions are material to the exercise of a discretion in a particular case, those provisions must be made public.

 

Corporate veil

November 1st, 2017 by James Goudie KC in Capital Finance and Companies

In Persad v Anirudh Singh [2017] UKPC 32 Lord Neuberger reaffirmed, at paragraph 17, that piercing the veil of incorporation is justified only “in very rare circumstances”.  It can be justified only where a person is under an existing legal obligation or liability or subject to an existing legal restriction which he deliberately evades or whose enforcement he deliberately frustrates by interposing a company under his control, as made clear by the Supreme Court in VTB Capital v Nutritek [2013] 2 AC 337 and Prest v Petrodel [2013] 2 AC 415.  Lord Neuberger further reaffirmed, at paragraph 20, that the fact that a company is a “one man company” is irrelevant: Salomon v Salomon [1897] AC 22.  It is a fallacy to suppose that the Court can pierce the corporate veil where the purpose of interposing a company into a transaction is to enable the owner or controller of the company to avoid liability.  Lord Neuberger said, at paragraph 21, that use of terms such as “front” or “alias” can too easily be invoked to justify a wrong decision.  The company has a distinct legal personality. As Lord Neuberger observed, at paragraph 22, cases such as Gilford Motor Co v Horne [1933] Ch 95 and Jones v Lipman [1962] 1 WLR 832 were distinguishable.

Not only did the person who set up the company in those cases have an existing relevant legal obligation which he was trying to avoid by entering into a transaction involving the company, but also the involvement of the company was unilaterally effected by the person concerned, without the knowledge, let alone the consent, of the other party.

 

Remedy for breach

November 1st, 2017 by James Goudie KC in Decision making and Contracts

In Case E-16/16, Fosen-Linjen AS v AtB AS, the EFTA Court has said, in a Judgment on 31 October 2017, that damages are available as a remedy for breach of the procurement rules where there is a sufficient causal link between the breach and the damage irrespective of the gravity of the breach.  A simple breach of procurement law is in itself says the Court sufficient to trigger the liability of the contracting authority to compensate for damage incurred: paragraph 82.  This contrasts with the Supreme Court Judgement in Energy Solutions v NDA (2017) UKSC 34.

 

Award of contracts

November 1st, 2017 by James Goudie KC in Decision making and Contracts

R (Hersi & Co) v Lord Chancellor (2017) EWHC 2667 (TCC) is concerned with the defendant’s conduct of a public procurement exercise for the award of contracts to provide publicly-funded legal services relating to immigration and asylum and mental health work.

As part of the tender, there were 7 particular questions, grouped under the heading ‘Selection Criteria’, which all applicants were required to answer. The claimant answered the first three, but then left blank the answers to Questions 4, 5, 6 and 7. In consequence, the defendant awarded the claimant no points for its answers to those questions and the claimant’s tender failed to gain the required points to justify the award of a contract. The claimant now argues, either that the defendant should have sought clarification of their non-answers, and/or that the answers to the questions were plain from other parts of the claimant’s tender and should have been scored accordingly. In addition, the claimant has a wider case in which it seeks to compare the defendant’s treatment of numerous other applicants on other aspects of their tenders, so as to allege inequality of treatment. Read more »

 

Planning obligations

October 27th, 2017 by James Goudie KC in Planning and Environmental

Aberdeen City and Shire Strategic Development Planning Authority v Elsick Development Company Limited (2017) UKSC 66 raised an important question of planning law. A planning authority foresees and plans for significant growth in its area. Major investment in transport infrastructure is required to accommodate the aggregate of the planned development. The planning authority seeks to achieve this investment by adopting a policy in its development plan which in substance requires developers to enter into planning obligations with it to make financial contributions to the pooled fund to be spent on the infrastructure, including interventions at places where a particular development has only a trivial impact. Is such a policy within the existing powers of the planning authority under current planning legislation? Read more »