Amendment of Contract

May 17th, 2018 by James Goudie QC in Decision making and Contracts

In Rock Advertising Ltd v MWB Business Exchange Centres Ltd (2018) UKSC 24 the Supreme Court gave effect to a contractual term precluding amendment of an agreement other than in writing, a “No Oral Modification” or “NOM” clause.  Lord Sumption said (para 10) that a law should and does give effect to a contractual provision requiring specified formalities to be observed for a variation.  Party autonomy operates up to the point when the contract is made, but thereafter only to the extent that the contract allows (para 11).  The law of contract does not normally obstruct the legitimate intentions of businessmen, except for overriding reasons of public policy: yet there is no mischief in NOM clauses, nor do they frustrate or contravene any policy of the law (para 12).


Village Green

May 16th, 2018 by James Goudie QC in Environment, Highways and Leisure

In Cotham School v Bristol City Council (2018) EWHC 1022 (Admin) the Council   is the owner of the freehold interest in Stoke Lodge Playing Fields. It is also the Commons Registration Authority empowered to register land as a town or village green pursuant to Section 15 Commons Act 2006.  In 2011 application was made to register the land as a town or village green. The applicant was acting on behalf of an unincorporated association known as “Save Stoke Lodge Parkland”. Objections to the application were received. In the face of conflicting views about whether the land should be registered the registration authority decided that it would appoint an Inspector to make a recommendation about whether the land should be registered. In May 2013 the Inspector issued a Report in which he recommended that the land should be registered as a green. However, that recommendation was not implemented. In the years immediately following the publication of the Report there were a number of cases proceeding through the Courts which were relevant to the issues raised in this case. Ultimately a decision was taken that before a decision was made as to whether the land should be registered the Inspector should conduct a non-statutory Public Inquiry at which oral evidence would be given. In June and July 2016 the Inspector conducted such an Inquiry. In October 2016 the Inspector produced a comprehensive written Report. In it, he recommended that the land should not be registered as a green. He expressed the view that one aspect of the statutory test for registration had not been satisfied.  The Inspector’s Report was considered at the Public Rights of Way and Greens Committee of the Council in December 2016.  In the event the Committee resolved (on the Chair’s casting vote) to reject the Inspector’s recommendation and to grant the application for registration. Read more »


Waste Operation

May 3rd, 2018 by James Goudie QC in Environment, Highways and Leisure

Stone v Environment Agency (2018) EWHC 994 (Admin) concerned an offence under the Environmental Permitting Regulations of knowingly permitting the operation of a regulated facility without being authorised by an environmental permit. The regulated facility was a “waste operation” for the storage of waste. There were two questions: whether there was a continuing waste operation; and whether the accused had to have taken a positive act during the relevant period, or simply to have known that a waste operation was taking place.  Nicol J held that there was a continuing waste operation; and that “knowingly permitting” did not require proof of a positive act. Read more »


ECHR Articles 9 and 14

May 1st, 2018 by James Goudie QC in Human Rights and Public Sector Equality Duty

In R (Adath Yisroel Burial Society) v Senior Coroner for Inner North London (2018) EWHC 969 (Admin) a Divisional Court (Singh LJ and Whipple J) observed (paragraph 94) that in Eweida v UK the ECtHR emphasized the importance of the rights set out in Article 9, and stated that there are several things of importance to note about the terms of Article 9:-

“96.      First, it does not protect only freedom of religion. It protects freedom of all thought (including the beliefs of those who have no religious faith) and freedom of conscience.

Read more »


Judicial Review

April 26th, 2018 by James Goudie QC in Judicial Control, Liability and Litigation

Section 31(2A) of the Senior Courts Act was introduced by Section 84 of the Criminal Justice and Courts Act 2015, coming into effect on 13 April 2015. It provides:

“(2A) The High Court –

(a) must refuse to grant relief on an application for judicial review … if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.”

The forms of relief referred to in Section 31(1)(1) include “(a) a mandatory, prohibiting or quashing order” and “(b) a declaration or injunction under subsection (2)”. Subsections (2B) and (2C) state:

“(2B) The court may disregard the requirements in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest.

(2C) If the court grants relief … in reliance on subsection (2B), the court must certify that the condition in subsection (2B) is satisfied.” Read more »


Termination of Employment Contract

April 25th, 2018 by James Goudie QC in Decision making and Contracts

The issue in Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood (2018) UKSC 22 was when the notice period begins to run, if an employee is dismissed on written notice posted to his home address. If the answer is not specified in the contract of employment, is it (i) when the letter would have been delivered in the ordinary course of post; (ii) when it was in fact delivered to that address; or (iii) when the letter comes to the attention of the employee and he or she has either read it or had a reasonable opportunity to do so? Read more »


Variation of Employment Contracts

April 24th, 2018 by James Goudie QC in Decision making and Contracts

Does an employee continuing to work following implementation of a pay freeze constitute acceptance of a variation of contractual provisions in collective agreements giving entitlement to pay progression? It all depends on the circumstances of the case, says the Court of Appeal in Abrahall v Nottingham City Council (2018) EWCA Civ 796.  Underhill LJ reviewed Rigby v Ferodo, Jones v Associated Tunnelling, Selectron, Khatri, and Cartwright v Tetrad.  Underhill LJ described Khatri as “significant”, including because of its endorsement that conduct relied upon to constitute an acceptance must be “only acceptable to the employee having accepted the proposed variation”.  Underhill LJ said:-

Read more »


Interpretation and Implication

April 24th, 2018 by James Goudie QC in Planning and Environmental

In Lambeth LBC v SoS for CLG (2018) EWCA Civ 844 considered again the interpretation of planning permissions (paragraphs 23-37) and implication (paragraphs 63-75).  Lewison LJ (with whom Hamblen and Coulson LJJ agreed) said as to the interpretation of a condition that the ultimate question was what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole. This is an objective exercise in which the Court will have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense. It is not right to regard the process of interpreting a planning permission as differing materially from that appropriate to other legal documents.

Read more »


Prejudice to commercial interests

April 18th, 2018 by James Goudie QC in Decision making and Contracts

In Case No. EA/2017/0057, Hartlepool Borough Council v The Information Commissioner, the FTT was concerned with whether under FoIA Section 43(2) disclosure would or would be likely to prejudice the commercial interests of any party and if so whether the public interest in maintaining that exemption outweighs the public interest in disclosure. The FTT upheld the Commissioner’s Decision that the disputed information must be disclosed.  The Borough Council’s Appeal was dismissed.

The request was for information in relation to the transfer of ownership in 2003 of what was then Teesside International Airport (“TIA”).  TIA had been owned by 6 Tees Valley local authorities, including Hartlepool. In 2003, Peel Group reached an agreement with them to acquire a 75% shareholding in TIA.  TIA became Durham Tees Valley Airport (“DTVA”). The 6 local authorities retained a combined 25% shareholding in DTVA, with Peel Investments Limited, a wholly owned subsidiary of the Peel Group, being the majority shareholder. The aggregate shareholding of the 6 local authorities in DTVA is currently 11%. Read more »


Village Greens

April 18th, 2018 by James Goudie QC in Environment, Highways and Leisure

Did the concept of “statutory incompatibility” defeat an application for the registration of land as a town or village green under Section 15 of the Commons Act 2006? That question arose in each of two appeals, R (Lancashire County Council) v SoS for the Environment and R (NHS Property Services) and Surrey County Council v Jones, (2018) EWCA Civ 721. No, ruled the Court of Appeal, unless there was an inherent inconsistency between the statutory purpose for which the land was held and the use for public recreation.  The use of land for educational or healthcare purposes was not incompatible with its use as a village green.