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.”