In Triple Point Technology v PTT (2021) UKSC 29 the Supreme Court considers general issues about a provision for liquidated damages under a contract and the function of liquidated damages. Parties agree a liquidated damages clause so as to provide a remedy that is predictable and certain for a particular event. There then does not have to be a potentially difficult and time consuming quantification of loss.
Liquidated Damages for Delayed Contractual Performance
July 21st, 2021 by James Goudie QC in Judicial Control, Liability and Litigation
Recovery of Possession
July 12th, 2021 by James Goudie QC in Land, Goods and ServicesLambeth LBC v Grant (2021) EWHC 1962 (QB) concerns a claim by the Council as freehold owner of Clapham Common. Part of the Common has been occupied by individuals known and unknown. They have set up a camp. The camp has generated complaints from local residents. By this action the Council sought to recover possession of its land. It was held that the Council was entitle to an order for possession.
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Restitution
July 12th, 2021 by James Goudie QC in Judicial Control, Liability and LitigationThe appeal in School Facility Management Ltd v GB of Christ the King College (2021) EWCA Civ 1053 addressed the question whether, in a claim for restitution of benefits conferred under a contract which was void as ultra vires one of the parties, the provider of the benefits must give credit for all benefits it received, notwithstanding that it has a change of position defence to any restitutionary claim for those benefits it received. The answer is : No.
Discrimination
July 9th, 2021 by James Goudie QC in Human Rights and Public Sector Equality DutyIn A&B v CICB (2021) UKSC 27 the Supreme Court reaffirmed that ECHR Art 14 does not cover differential treatment on any ground, but only on a ground of status: para 40. This has a broad meaning and must be generously interpreted : paras 42 and 57. However, the basis of discrimination of which complaint is made must have an existence independent of the measure under attack: para 59. Relevant status cannot be defined solely by difference in treatment: para 66. The Supreme Court also reaffirms that discrimination may arise where the State fails to treat differently persons whose situations are significantly different: para 69.
Human Rights
July 9th, 2021 by James Goudie QC in Human Rights and Public Sector Equality DutyIn R (SC) v SoS for Work & Pensions (2021) UKSC 26 a Seven Justices Supreme Court holds that (1) it is not appropriate for domestic Courts to determine whether the UK has violated its obligations under unincorporated international law : paras 74-96; (2) in approaching proportionality under ECHR Art 14 a nuanced approach is required, which is not fully captured by a “manifestly without reasonable foundation” standard of review, and which in some circumstances calls for mush stricter scrutiny : paras 97-162; and (3) only limited use can be made of Parliamentary material in considering whether primary legislation is compatible with ECHR rights: paras 163-185.
Misconduct in Public Office
July 7th, 2021 by James Goudie QC in Human Rights and Public Sector Equality DutyArticle 7 of the ECHR relates to no punishment without law. It provides that no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence at the time that it was committed. In Norman v UK (2021) ECHR 601 the ECtHR holds that the common law offence of misconduct in public office carrying a maximum sentence of life imprisonment and not defined in statute, and subject to a Law Commission recommendation for abolition, does not infringe Article 7.
Transparency
July 6th, 2021 by sophiep in Decision making and ContractsIn Biffa Waste Services v Leicestershire County Council (2021) EWHC 1764 ( TCC ) Joanna Smith J addresses the scope of the Principle of Transparency in regulated public contract procurements, and also the requirement to establish causation of loss or damage. At para 44 the Judge declined to make new law seeking to impose an enforceable legal obligation on contracting authorities to inform bidders each time one or other anonymised rival bidder withdraws or is readmitted to a procurement process.
Unlawful Means Tort
July 6th, 2021 by James Goudie QC in Judicial Control, Liability and LitigationIn SoS for Health v Servier (2021) UKSC 24 a seven Justices Supreme Court holds that it is a requirement of the unlawful means economic tort that the unlawful means must have affected the third party’s freedom to deal with the claimant, the dealing requirement.
Subsidy Control
July 1st, 2021 by James Goudie QC in Capital Finance and CompaniesSubsidy Control replaced State Aid six months ago. A Subsidy Control Bill has now been published.
Injunctions
July 1st, 2021 by James Goudie QC in Judicial Control, Liability and LitigationValbonne Estates v Cityvalue Estates (2021) EWCA Civ 973 concerns the proper exercise of the Court’s discretion to continue an interim injunction or to re-grant it notwithstanding serious non-disclosure by the applicant when seeking the interim injunction on a without notice basis. At para 47 and following the Court of Appeal sets out the relevant principles. There are no hard and fast rules which must be applied. The Court should take into account all relevant circumstances.
Where there are breaches of the duty of full and fair disclosure on a without notice application, the general rule is that the order should be discharged and the Court should refuse to re-grant it. That is the starting point, especially if the non-disclosure/inaccurate representations are neither inadvertent nor accidental.