See the decision of Jefford J in NEW LOTTERY CO v GAMBLING COMMISSION (2025) EWHC 1058 (TCC) on loss of LEGAL PROFESSIONAL PRIVILEGE arising from INADVERTENT DISCLOSURE of documents during disclosure in litigation and the doctrine of “ honest mistake “, which would prevent LPP being lost, in the context of a heavy disclosure and review exercise.
SUBSIDIES
May 8th, 2025 by James Goudie KC in Capital Finance and CompaniesIn AUBREY WEISS v GREATER MANCHESTER COMBINED AUTHORITY ( 2025 ) CAT 27 the Competition Appeal Tribunal has given its first Judgment on the balance to be struck in judicial review kind challenges under Section 70(1) of the Subsidy Control Act 2022 between on the one hand the protection of commercially confidential information and on the other hand procedural fairness and open justice. The CAT held that the balance in all the circumstances of this case required that the Appellant’s principal decision-maker be admitted to a confidentiality ring in order to review GMCA’s confidential decision-making documents in relation to loans made by the GMCA, both GMCA documents and documents, including pricing information, of the Appellant’s development competitor and recipients of the loans.
The CAT from para 18 considered the relevant law in relation to the subsidy control regime; and from para 21 the relevant law on managing particularly sensitive confidential information during litigation and confidentiality rings. The information to which access was sought was ( para 43 ) highly important for assessing the merits of the case and in deciding what points to take or not take. The CAT at para 57 identified what was comprised in the balancing exercise. It imposed protections to mitigate against risks : paras 58-61 inc.
DEPARTURE FROM POLICY
May 6th, 2025 by James Goudie KC in Decision making and ContractsThe first factor is the nature of the policy. There is a spectrum of different kinds of policy. It ranges from the most formal to the most informal. The second factor is the deference that the Court ought to pay to the decision-maker in deciding whether uit had good reason to depart from its policy. Some level of weight should be attached to the judgment of a specialist experienced decision-maker. The required deference is also on a spectrum.
There is no bright line rule that good reasons can be reviewed only if they are irrational or unreasonable. In considering whether a decision-maker had good reason for departing from a policy one considers first where on the spectrum of policies the relevant one lies and where on the spectrum of appropriate deference the particular type of decision lies.
So held in R ( DUKE OF SUSSEX ) v SSHD ( 2025 ) EWCA Civ 548 at paras 62-69 inc.
ECHR ARTICLE 5
May 6th, 2025 by James Goudie KC in Human Rights and Public Sector Equality DutyIn J V NE SOMERSET COUNCIL (2025) EWCA CIV 478 the appeal was concerned with whether a profoundly disabled 14-year-child was deprived of his liberty. The Court of Appeal held that his care arrangements did amount to a deprivation of his liberty. For that there had to be a Court Order under Article 5 . The consent of the local authority to his confinement was not sufficient.
CONSEQUENCE OF ENFORCEMENT NOTICE
April 30th, 2025 by James Goudie KC in Planning and EnvironmentalSection 57(1) of TCPA 1990 provides that planning permission is required for the carrying out of ANY development of land. Section 57(4) however creates an exception. In TITCHFIELD FESTIVAL THEATRE v SoS (2025) EWHC 883 (Admin) it is held that land in respect of which an enforcement notice has been issued is allowed to revert to a previous lawful use, without needing to go through the process of obtaining express planning permission.
INUNCTIONS RESTRAINING SPEECH
April 30th, 2025 by James Goudie KC in Judicial Control, Liability and LitigationIn ABBASI v NEWCASTLE NHS FOUNDATION TRUST (2025) UKSC 15 the Supreme Court provides important guidance on injunctions restraining speech on matters of public interest, including injunctions to prevent interference with a public authority’s performance of statutory functions. The Court reaffirmed that, though it may be necessary to protect public servants from offensive, abusive or defamatory attacks calculated to affect the performance of their duties, public servants acting in an official capacity may be subject to wider limits of acceptable criticism than ordinary citizens, and that the requirements of protecting them have to be weighed against the interest of freedom of expression or of open discussion of matters of public concern.
ARTICLE 6
April 30th, 2025 by James Goudie KC in Human Rights and Public Sector Equality DutyIn WALSALL MBC v A MOTHER (2025) EWHC 929 (Fam) Lieven J says that the applicability of Article 6(1) of the European Convention on Human Rights in civil cases depends on the existence of a “dispute” over the civil right in question. The word “dispute” has to be given a substantive meaning rather than a formal one. It is necessary to look beyond the appearances of and language used and concentrate on the realities of the situation according to the circumstances of each case. The dispute had to be genuine and of a serious nature. Unlike the situation in respect of criminal charges under Article 6(3), Article 6(1) gives no authoritative rights to legal assistance in civil disputes. Nor did Article 6 imply that the State has to provide free legal aid for every dispute relating to “civil rights”. The rest is whether legal assistance is “indispensable” for effective access to the Court.
SUBSTANTIVE LEGITIMATE EXPECTATION
April 15th, 2025 by James Goudie KC in Decision making and ContractsIn R (GRANTCHESTER PARISH COUNCIL) v GREATER CAMBRIDGE PARTNERSHIP and CAMBRIDGESHIRE COUNTY COUNCIL and others (2025) EWHC 923 (Admin) Lieven J states, at para 46, that the parameters of what statements can give rise to a legitimate expectation and in what circumstances are complex, with a large number of authorities on various different factual situations. She observes: “When considering these cases it is important to have regard to the precise factual legal context in which many of the judicial pronouncements were made”. At para 47, she identifies 3 key stages: (1) Was there a clear and unambiguous commitment? (2) Was it reasonable and legitimate for the promisee to rely upon it against the public authority? (3) Would it be inappropriate to allow the promisee to enforce the commitment? At para 49 she states that the burden of establishing a commitment which is clear, unambiguous and devoid of relevant qualification rests on the person asserting it; at para 50 that a distinction is drawn between what will be required in cases of substantive legitimate expectation rather than procedural expectation; and at para 56 that if the promise would interfere with the public authority’s statutory duty it cannot give rise to a legitimate expectation.
USES CLASSES
April 14th, 2025 by James Goudie KC in Planning and EnvironmentalIn WEST SUFFOLK COUNCIL v SoS (2025) EWHC 861 (Admin) the Administrative Court discusses the correct interpretation of the TOWN AND COUNTRY PLANNING (USE CLASSES) ORDER 1987, specifically the phrase in Class E(e) “the provision of medical or health services, principally to visiting members of the public” and the phrase in Class E(g)(ii) “the research and development of product or processes”.
Lang J concludes that the natural and ordinary meaning of the language in both cases is clear. As to the former, two things are required. First, there has to be use of premises, or part premises, for the purpose of the provision of medical or health services. Second, the services have to be provided principally to visiting members of the public. As to the latter, two things are required. First, there has to be use, or part use, for the purpose of research and development. Second, that has to be of products or processes.