In R (Forsey) v Northern Derbyshire Magistrates’ Court (2017) EWHC 1152 (QB) the claimant was prosecuted as a director of a company which entered into administration, and whose 84 employees at a warehouse were made redundant. It was alleged that the company committed an offence by failing to notify the Secretary of State for Business, Innovation and Skills (“the SoS”) in writing of a proposal to dismiss and make redundant 20 or more employees. The claimant is said also to be guilty on the basis that he had consented to, connived at, or neglected to prevent this failure. The failure was alleged to be contrary to Section 194 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the Act”). Read more »
Improvement notices
May 22nd, 2017 by James Goudie KC in HousingWood v Kingston Upon Hull City Council (2017) EWCA Civ 364 concerns an Improvement Notice served by a local housing authority under the Housing Act 2004 (“the 2004 Act”). The appeal to the Court of Appeal, by the authority, arose in the following way.
Mr Wood is the freehold owner of a first floor flat (Flat 4) at 141 Princes Avenue in Hull. Ms Peacock is the freehold owner of the ground floor flat immediately below. The vertical boundary between the two flats is at the mid-point of the joists between the ceiling of the ground floor flat and the floor of Flat 4. Hull City Council took the view that there was inadequate fire resistance between the two flats, and served notice under Section 12 of the 2004 Act on both Mr Wood and Ms Peacock requiring remedial works to be carried out. The notice stated that the ground floor flat had a section of original lath and plaster ceiling which was in very poor condition with some sections missing. That lack of material separation increased the likelihood of unchecked spread of fire into Flat 4 from the ground floor flat in the event of a fire occurring within the ground floor flat. The notice specified two alternative schemes: Read more »
Construction contract
May 19th, 2017 by James Goudie KC in Decision making and ContractsSutton Housing Partnership Limited (“SHP”) manage the housing stock of Sutton Council. In SHP v Rydon Maintenance Limited (2017) EWCA Civ 359 SHP sued as employer under a construction contract. The Defendant is a contractor which specialises in the repair and maintenance of housing. SHP engaged Rydon to carry out maintenance and repairs to the housing stock which the Council owns. The contract was based on the National Housing Federation’s standard form contract, 2011. The contract conditions were expressed by reference to “Key Performance Indicators” (“KPIs”) and “Minimum Acceptable Performances” (“MAPs”), as measured by a KPI, as set out in the KPI Framework. The KPI Framework was a contractual document.
The issue in the case was whether the MAP levels were contractual, expressly or impliedly. The Court of Appeal has held that the MAPs were contractual. Both parties must have intended the contract to specify MAPs, applying the approach to commercial contracts mandated by the Supreme Court in Rainy Sky v Kookmin Bank (2011) 1 WLR 2900, (2011) UKSC 50 and Arnold v Britton (2015) UKSC 36, (2015) AC 1619. That was the only rational interpretation of the “curious contractual provisions”. The Council’s manager retained a valuable power to terminate for poor service.
Consultation
May 19th, 2017 by James Goudie KC in Decision making and ContractsIn R (Pharmaceutical Services Negotiating Committee) v SoS for Health (2017) EWHC 1147 (Admin) Collins J was concerned with challenges to the legality of the process by which remuneration of pharmacies which dispense medicines and provide other services within the NHS was to be reduced as part of the financial savings required. There was a consultation. It was not sought to challenge the amount of the new proposed reduction. It was recognized that that is financial policy driven by the need to save public funds over the whole governmental estate. What was asserted was that the means by which the reductions had been imposed had for various reasons been unfair and in breach of statutory requirements. Read more »
Legal professional privilege
May 16th, 2017 by James Goudie KC in Judicial Control, Liability and LitigationIn 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 »
Residential Parking Permit
May 15th, 2017 by James Goudie KC in Planning and EnvironmentalA requirement in a planning permission that a property developer enter into an obligation that future occupiers of a building would not apply for a residential parking permit is not capable of being a planning obligation under Section 106 of TCPA 1990. Use of the highway for parking was not use of land in which the person making the agreement was interested. (However, it was legally valid under a Greater London Council (General Powers) Act.) So held in R (Khodari) v Kensington & Chelsea RLBC (2017) EWCA Civ 333.
Equality of treatment
May 12th, 2017 by James Goudie KC in Decision making and ContractsIn Case C-131/16, Archus v PGNG, the CJEU on 11 May 2017 restated with reference to previous authority the principles of equal treatment of tenderers, as follows (numbering added):-
- The requirement for the contracting authority to observe the principle of equal treatment of tenderers which has the aim of promoting the development of healthy and effective competition between undertakings taking part in a public procurement procedure means, inter alia, that tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed by the contracting authority; Read more »
Purdah & Consultation
May 11th, 2017 by James Goudie KC in Decision making and Contracts“Purdah” is not a rule of law. It does not override obligations to comply with statutory duties. So held Garnham J in R (ClientEarth) v SoS for Environment, etc, a case concerned with the 8 June 2017 General Election announced on 18 April 2017. On 20 April 2017 the Cabinet Office published Guidance in respect of that Election which came into force at midnight on 21 April 2017. This Guidance followed Cabinet Office Guidance published on 12 April 2017 in respect of the local government elections which were to take place on 4 May 2017. That Guidance indicated a “period of sensitivity”, or “purdah”, covering a three week period from 13 April 2017 preceding those elections. Read more »
Civil Rights and Obligations
May 10th, 2017 by James Goudie KC in Human Rights and Public Sector Equality DutyIn Poshteh v Kensington and Chelsea RLBC (2017) UKSC 36 the appellant arrived in the UK in 2003 as a refugee from Iran, where she had been subject to imprisonment and torture. She gained indefinite leave to remain in 2009, the year in which she applied to the respondent council for accommodation as a homeless person. In November 2012 the respondent offered the appellant accommodation in Norland Road, London in a first floor, two-bedroom flat. The appellant’s concerns about the physical features of the property (including the small size of the windows) were first raised in correspondence of 29 November 2012, including a letter from the appellant’s therapist and her GP, and in a solicitors’ letter of 30 August 2013. The appellant ultimately refused this “final offer” of permanent accommodation at the property on the basis that it had features which reminded her of her prison in Iran and which would exacerbate her post-traumatic stress disorder, anxiety attacks and other conditions. Read more »