Infrastructure projects

November 24th, 2017 by James Goudie QC in Capital Finance and Companies

The Treasury has on 22 November 2017 confirmed that it will lend local authorities in England up to £1 billion at a new discounted interest rate of gilts + 60 basis points, accessible for three years, with a maximum term of 50 years, to support infrastructure projects that are “high value for money”. Details of the bidding process are to be published in December 2017.

 

Agency

November 22nd, 2017 by James Goudie QC in Housing

In Haringey LBC v Ahmed (2017) EWCA Civ 1861, where the Council claimed possession of a property, the Court of Appeal held, in allowing the Council’s appeal against the dismissal of its claim, that a Judge had been wrong to find that a husband who had taken sole responsibility for securing accommodation for his family had acted as agent for his wife when entering into a secure tenancy in their joint names. The Judge’s finding that the wife had not been involved in, or informed about, the tenancy meant that the usual characteristics of an agency were absent, in the absence of agency, the husband had been the sole tenant.  Therefore, when he left the property, the wife could not defend possession proceedings on the basis that she was a joint tenant. Read more »

 

Hiring a council park

November 20th, 2017 by James Goudie QC in Environment, Highways and Leisure

In R (Friends of Finsbury Park) v Haringey LBC (2017) EWCA Civ 1831 the Court of Appeal has dismissed an appeal from Supperstone J dismissing a claim for judicial review of a decision by Haringey Council to hire part of Finsbury Park for a licensed music Festival, pursuant to Section 145 of the Local Government Act 1972.

The Council held Finsbury Park under Section 10 of the Open Spaces Act 1906 or a statutory trust for use by the public for recreation. The public were its beneficial owners.  They had a statutory right to use it for recreational purposes.  The local authority owner must generally allow the public the free and unrestricted use of it.  It cannot exclude the general public from it.  All that, however, is subject to contrary legislative provisions.

The Court of Appeal, agreeing with Supperstone J’s reasons, held that Section 145 of the 1972 Act provided the Council with power to enclose part of Finsbury Park for the purposes of events such as the Festival. They were not limited to considering the application for hire only under other statutory provisions. They were able to do so notwithstanding the trust under the 1906 Act, provided that they used the 1972 Act power lawfully and not to frustrate the legislative purpose.

 

Zambrano Carers: Children Act 1989

November 15th, 2017 by James Goudie QC in Social Care

The Supreme Court on 15 November 2017 in R (HC) v SoS for DWP (2017) UKSC 73 has unanimously upheld the decision of the Court of Appeal (2015) EWCA Civ 49, for substantially the same reasons.  The case concerns Mrs HC.  She is an Algerian national who has been living in the UK since 2009. She arrived with leave but then over-stayed.  In 2010 she married a British national on whom she depended financially. She had two children by him, in 2011 and 2013. Her children are British nationals. The relationship ended after domestic violence in late 2012, when Mrs HC sought help from her local authority.  Oldham Council, after initially refusing, agreed to provide Mrs HC and her children with temporary housing and £80.50 per week for subsistence and utilities, under Section 17 of the Children Act 1989. Read more »

 

Consultation

November 13th, 2017 by James Goudie QC in Decision making and Contracts

In R (Help Refugees Ltd) v SSHD (2017) EWHC 2727 (Admin) a Divisional Court held that there had been no unfairness in the SSHD’s statutory consultation with local authorities on the requirements relating to the relocation of Unaccompanied Asylum Seeking Children.  The test was not whether the consultation process was free from all blemish, but whether the consultation was so unfair as to be unlawful, i.e. whether it reached an appropriate level of fairness, judged in the light of the criteria for a fair consultation.  The target audience was knowledgeable, sophisticated, and familiar with refugee issues. There was no reasonable expectation that late responses would be considered. Read more »

 

Minicab licensing

November 13th, 2017 by James Goudie QC in Environment, Highways and Leisure

In R Milton Keynes Council v Skyline Taxis and Private Hire Limited (2017) EWHC 2794 (Admin) considered an appeal with respect to offences under the Local Government (Miscellaneous Provisions) Act 1976 of operating a vehicle as a private hire vehicle for which a licence was not in force and the driver of which was not licensed.  The Divisional Court set out the legal background as follows.

There are two types of car available for hire to transport passengers, namely hackney carriages (or “taxis”) and private hire vehicles (or “minicabs”), to which different rules apply. The appeal concerned only the latter. Moreover, it concerned only the provisions which apply to out-of-London private hire vehicle operations. Different provisions apply to minicabs in London. Read more »

 

Capital finance and companies

November 13th, 2017 by James Goudie QC in Capital Finance and Companies

CLG is consulting, from 10 November to 22 December 2017, on changes to the prudential framework of capital finance, set out in the Local Government Act 2003, Regulations and CIPFA Codes, and in particular statutory guidance on local authority investments and guidance on minimum revenue provision, applying to local authorities in England.

The Statutory Guidance on Local Authority investments (“Investments Guidance”) covers proper practices that local authorities are required to follow when making investment decisions. It gains its statutory status from Section 15(1)(a) of the Local Government Act 2003, under which local authorities are required to have regard to such guidance as the Secretary of State may issue.  The Investments Guidance was last updated in 2010, following Parliamentary inquiries into local authority investments in Icelandic Banks. As a result the Investments Guidance was very focused on investments in financial institutions. Read more »

 

ENVIRONMENTAL OFFENCES

November 6th, 2017 by James Goudie QC 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).

 

 

CONFIDENTIALITY

November 6th, 2017 by James Goudie QC 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”.

 

Judicial review

November 3rd, 2017 by James Goudie QC 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.