February 6th, 2024 by James Goudie KC in Housing

The issue in RAHIMI v CITY OF WESTMINSTER COUNCIL (2024) EWCA Civ 73 was whether Mr Rahimi was entitled to a secure tenancy on the death of his grandmother.  That, in turn, depended on whether at the date of her death the grandmother was the tenant under a tenancy of the flat granted to her alone.  The tenancy had originally be granted to her and her husband, as joint tenants, but her husband was no longer living there.  Mr Rahimi was a member of his grandmother’s family and had resided with her throughout the period of 12 months ending with her death.

Lewison LJ at paragraphs 17-22 inclusive identified the statutory framework in relation to secure tenancies.  The effect was that if there was a surrender and regrant amounting to the grant of a fresh tenancy to the grandmother alone, a succession was still available, but if the joint tenancy continued in being, Mr Rahimi would not have been entitled to succeed.  The joint tenancy would have vested by right of survivorship in the grandmother’s husband, at which point the tenancy would have ceased to be a secure tenancy, because the husband did not occupy the property as his home.

From paragraph 28 Lewison LJ addressed the principle of surrender and regrant.  Rights held jointly must be surrendered jointly, by both the joint tenants and by the landlord.  Conduct relied upon must be unequivocal.  Individual equivocal acts can however be combined to surmount the evidential threshold.  From paragraph 40 Lewison LJ considered whether there was unequivocal conduct in this case.  What was required was an agreement by the landlord with the assent of the outgoing tenant.  On the facts, there was no such agreement, and no grant of a new sole tenancy to Mr Rahimi’s grandmother.

Newby LJ agreed with Lewison LJ in dismissing Mr Rahimi’s appeal, and Macur LJ dissented.  Newey LJ said, at paragraph 81:-

“No one suggests that there is direct evidence of a fresh tenancy having been granted.  The question is whether there is material from which a grant could be inferred. In that connection, evidence of conduct which is just as consistent with the continuation of the original joint tenancy will not suffice.”



January 31st, 2024 by James Goudie KC in Judicial Control, Liability and Litigation

In Potanina v Potanin (2024) UKSC 3 the Supreme Court reaffirms that it is a fundamental rule of procedural fairness that , before making an Order requested by one party, the Judge must give the other party the chance to object. If, for some reason, it is not practicable to do this, the Judge must do the next best thing. If the Judge makes the Order that is to give the other party an opportunity to argue that the Order should be set aside, or varied. What is always unfair is to make a Final Order, capable of correction only on appeal, after hearing only from the party who wants the Order made.



January 31st, 2024 by James Goudie KC in Judicial Control, Liability and Litigation

In EU law the Francovich/Factortame conditions for state, that is public authority, liability in damages include that the breach is “ sufficiently serious “. This applies for example to damages for breach of the Public Contracts Regulations 2015 and the Concession Contracts and Utilities Contracts Regulations 2016, implementing EU law There has been case law on what constitutes being “ sufficiently serious “, notably Energy Solutions v NDA (2016) EWHC 3326 (TCC) and (2017) UKSC 34. The post Brexit Procurement Act 2023, not implementing EU law,   contains no express requirement for a breach to be sufficiently serious. Does this mean that the requirement has gone? No, says Coulson LJ in Braceurself Ltd v NHS England (2024) EWCA Civ 39.



January 31st, 2024 by James Goudie KC in Housing

In South Oxfordshire District Council  Fertre (2024) EWHC 112 (KB) an individual who had under Section 204 of the Housing Act 1996 was given permission to amend her appellant’s notice. The appeal had, by mistake, identified the wrong local housing authority. The amendment was to specify the correct authority. The appeal which identified the wrong authority was not a nullity. There was power to include the correct respondent by amendment.



January 31st, 2024 by James Goudie KC in Social Care

When assessing whether an asylum seeker’s needs for which it was responsible under the Care Act 2014 included accommodation, a local authority should ignore any current or potential accommodation by SSHD under Section 95 of the Immigration and Asylum Act 1999. The principles regarding the interplay between Section 95 and the National Assistance Act 1948 are applicable to the interplay between Section 95 and the Care Act 2914.

So held in R ( TMX ) v Croydon LBC ( 2024 ) EWHC 129 ( Admin ).



January 25th, 2024 by James Goudie KC in Judicial Control, Liability and Litigation

Sadeq v Dechert (2024) EWCA Civ 28 raises a number of important points of law about the scope of LPP, both litigation privilege and legal advice privilege, and the so called “iniquity exception” applicable to both, in a 243 paragraph Judgment, Popplewell LJ addressed, amongst other matters, the merits threshold test for the iniquity exception.

He said:-
“52. I start with a number of uncontroversial aspects of the iniquity exception. As is well-known, legal professional privilege encompasses both legal advice privilege and litigation privilege. Broadly speaking, legal advice privilege applies to communications between a lawyer and its client for the sole or dominant purpose of giving or receiving legal advice, and documents which would reveal the contents of such communications; litigation privilege attaches to communications between a lawyer and its client or third parties which are brought into existence for the sole or dominant purpose of use in the conduct of existing or contemplated adversarial litigation … Where legal professional privilege exists, it is inviolate: there is no balancing exercise to be undertaken between the interest in maintaining privilege and competing interests in disclosure of the communications … Legal professional privilege was described by Lord Hoffmann in R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2002] UKHL 18 [2003] 1 AC 563 at [7] as a fundamental human right, which the European Court of Human Rights has held is part of the right to privacy protected by article 8 ECHR.

53. There is a principle that privilege does not exist if the document comes into existence in relation to a fraud, crime or other iniquity… a claim for legal professional privilege does not apply to documents which have been brought into existence in the course of or in furtherance of a fraud …

54. The exception applies to criminal cases … and civil cases … It applies equally to legal advice privilege and litigation privilege…

55. The principle is not confined to fraudulent or criminal purposes, but extends to fraud or other equivalent underhand conduct which is in breach of a duty of good faith or contrary to public policy or the interests of justice … Whilst formerly often referred to as the fraud exception, it is now most commonly referred to as the iniquity exception.

56. It is not confined to cases in which the legal adviser is party to, or aware of, the iniquity. The relevant iniquitous purpose is that of the client, or if the client is being used as a tool for the iniquity by a third party, that of the third party …

57. The principled juridical basis for the exception is that it is a necessary ingredient of legal professional privilege that the communication should be confidential; and that the iniquity exception applies where and because the iniquity deprives the communication of the necessary quality of confidence … It is therefore an exception in the sense of something which prevents the privilege arising in the first place, not an exception in the sense of a disapplication of existing privilege.

58. Communications between a lawyer and client, or with third parties, are confidential if they take place in the usual course of the professional engagement of such a lawyer, notwithstanding that the engagement may concern an iniquity. This is why the iniquity exception does not apply to the “ordinary run of cases” … Such privilege is not prevented from attaching merely because the solicitor is engaged to conduct litigation by putting forward an account of events which the client knows to be untrue, and which therefore involves a deliberate strategy to mislead the other party and the court. and to commit perjury … Accordingly the touchstone in distinguishing such cases from those where the exception applies is whether the iniquity puts the conduct outside the normal scope of such professional engagement or is an abuse of the relationship which falls within the ordinary course of such engagement …”

He continued, at paragraph 63:-

“63. I have reached the conclusion that save in exceptional cases, the merits threshold for the iniquity exception is a balance of probabilities test: the existence of the iniquity must be more likely than not on the material available to the decision maker, whether that be the party or legal adviser determining whether to give or withhold disclosure, or the court on any application in which the issue arises; and that in an interlocutory context there is no distinction to be drawn between cases in which the iniquity is one of the issues in the proceedings and those where it is not. This, in my view, is what the cases speaking of a prima facie case have had in mind, and what is meant by a prima facie case in this context (whatever it may mean in other contexts).

64. That conclusion is dictated by principle and consistent with, and to some extent supported by … authorities at appellate level …

65. Application of the iniquity exception involves the balance of two competing public policy considerations. On the one hand, there are the policy considerations which underlie the existence of legal professional privilege …

68. On the other hand there is a strong public interest in iniquity being uncovered …

69. In the context of litigation, this is reinforced by the imperative of the parties being able to adduce before the court all relevant evidence so that the dispute is determined fairly and correctly. If relevant evidence is concealed, there is a risk of injustice …

72. … a test of anything less than a balance of probabilities would be inconsistent with principle. The test should … be whether the iniquity exists on the balance of probabilities on the material available to the decision maker, whether party, legal adviser or court, at the time the decision is made, save in exceptional circumstances …”

“108. The merits threshold for the existence of an iniquity which prevents legal professional privilege arising, whether legal advice privilege or litigation privilege, is a prima facie case, which means that on an assessment of the material available to the decision maker, whether that be the party or its legal adviser conducting disclosure, or the court, it appears more likely than not on a balance of probabilities that such iniquity exists. In an interlocutory context there is no distinction to be drawn between cases in which the iniquity is one of the issues in the proceedings and those where it is not. This is subject to the proviso that there might exist exceptional circumstances which could justify a court taking the view that a balance of harm analysis has a part to play.”



January 23rd, 2024 by James Goudie KC in Planning and Environmental

A further batch of Biodiversity Regulations : Sis 2024/45 & 46, on Biodiversity Gain Site Registration, and SI 2024/50, on planning modifications and amendments.



January 23rd, 2024 by James Goudie KC in Judicial Control, Liability and Litigation

In Sullivan v IoW Council (2024) EAT 3 the EAT has held that an ET did not have jurisdiction to hear a whistleblowing claim brought by an external jpb applicant against the local authority . The applicant did not fall within the definition of “worker”.



January 22nd, 2024 by James Goudie KC in Planning and Environmental

In relation to biodiversity gain in England, the Environment Act 2021 ( the 2021 Act ) inserted Section 90A of and Schedule 7A to TCPA 1990. Subject to exceptions, every planning permission is deemed to be granted subject to general condition. The biodiversity gain requirement is that the biodiversity value attributable to the development exceeds the pre-development diversity value by at least the  statutorily specified percentage. Biodiversity value means value calculated in accordance with a metric.

Three sets of Regulations have been made under the 2021 Act as part of a package in relation to biodiversity gain. Exemption Regulations, S.I. 2024/47, prescribe categories of planning permission to which the requirement that would otherwise be imposed as a general condition do not apply. There are small development, de minimis and householder exemptions. There is also exemption for development “ forming part of, or ancillary to “ the high speed railway network, development undertaken “ solely or mainly “ for the “ purpose “ of fulfilling the condition which applies to another development, and self-build and custom build.

Irreplaceable Habitat Regulations, S.I. 2024/48, also in force from 12 February 2024, define “ irreplaceable habitat “ for the purpose of securing that a biodiversity gain objective is met, and disapply the requirement to increase the biodiversity value of developments sites. Alternative arrangements must be made to minimise the adverse effect of the development on the biodiversity of the habitat where that habitat is deemed “ irreplaceable “. The Consequential Amendments Regulations, S.I.2024/49, relate to biodiversity gain plans.


Cumulative Impact

January 19th, 2024 by James Goudie KC in Environment, Highways and Leisure

In R (Substation Action Save East Suffolk Ltd) v SoS for Energy Security and Net Zero ( 2024 ) EWCA Civ 12, concerned with Regulation 21 if the Environmental Impact Assessment Regulations, development consent for windfarm construction, and flood risk, Lewis LJ reiterated, at paras 55 and 60, that, where two or more linked sets of works are properly to be regarded as separate projects, ( 1 ) the objective of securing environmental protection is sufficiently secured by considering the cumulative effects when the first project is assessed, so far as that is reasonably possible, but (2 ) a decision=maker could defer that decision where, amongst other things, there is insufficient information on which a cumulative assessment can be made.