Director of Company as Joint Tortfeasor

February 6th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

There is liability as a joint tortfeasor if (1) someone has acted in a way that assists the commission of the tort by the primary tortfeasor and (2) he/she did so pursuant to a common design to do or assist with the acts that constituted the tort. Whether that test is met in a particular case is a fact sensitive assessment that will turn on all the relevant circumstances. That law has been restated and applied in Red Bull v Big Horn (2020) EWHC 124 (Ch), at paragraphs 45-48 inclusive, where the primary tortfeasor was a company, and the issue was as to the personal liability of a director. The Judge said that the fact that the alleged tortfeasor was a director of the primary tortfeasor did not exclude liability, nor did it establish that the conditions for joint liability were met. There was liability in this action in the case of the sole director and entirely controlling mind of the company who was directly responsible for the activities and actions of his company vehicle.

 

Green Belt

February 5th, 2020 by James Goudie QC in Planning and Environmental

The issue in R ( Samuel smith Brewery ) v North Yorkshire County Council (2020) UKSC 3 was whether the Council as LPA properly understood the meaning of the word “ openness “ in para 90 of the NPPF as it applies to mineral working in the Green belt.

The Supreme Court, allowing the LPA’s appeal, holds that visual quality of landscape is not an essential part of “ openness “ for which the Green Belt is protected. “ Openness “ is the counterpart of urban sprawl. It does not imply freedom from all forms of development. Consideration of relatively limited visual impact does not have to be part of the analysis.

 

Welsh Electoral Reform

February 4th, 2020 by James Goudie QC in Elections and Bylaws

The Welsh Minister for Housing and Local Government has announced on 3 February 2020 an “ Electoral Reform Support Grant “ to be made available to all Welsh local authority Electoral Services teams. This is to support their work in implementing both recent and forthcoming electoral reform in Wales. It is in order to assist these teams with the pressures associated with the extension of the franchise, canvass reform and other Welsh electoral reform. It is in particular to support local authorities with registering newly enfranchised individuals. The extensions include by lowering the voting age to 16 and extending the franchise to qualifying foreign citizens.

 

Pooled Investments and Accounting

February 4th, 2020 by James Goudie QC in Capital Finance and Companies

A new Regulation 24K has been added to the Local Authorities (Capital Finance and Accounting)(Wales) Regulations 2003, providing that a Welsh local authority must not charge an amount in its revenue account to reflect any fluctuation in the fair value of an investment in a pooled investment fund. Rather, such amounts must be recorded in a separate account, established, and used solely, for that purpose. This corresponds with Regulation 30K of the English 2003 Regulations, inserted in 2018.

 

Dishonest Assistance

February 4th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

On (1) what is required in order to establish a claim for dishonest assistance, (2) whether to order a retrial, and (3) the limitations on the ability of an appellate court to interfere with a discretionary decision of a lower court, see MAGNER v RBS (2020) UKPC 5.

 

Delay in Bringing Homelessness Appeal

February 3rd, 2020 by James Goudie QC in Housing

In Ahmed v Tower Hamlets LBC (2020) EWCA Civ 51 the Court of Appeal considered the approach to be adopted towards the assessment of a “good reason” for delay in bringing an appeal under Section 204 of the Housing Act 1996 against an adverse review decision under the homelessness provisions of that Act, in circumstances where the reason put forward for the delay is that the applicant was unrepresented and was seeking legal aid. The time limit for bringing such an appeal is 21 days, and that (paragraph 35) remains the “basic rule”. The Court of Appeal said that (1) the “good reason” requirement provides a straightforward statutory test to which no gloss is or should be applied: paragraph 24; (2) the Mitchell/Denton principles should not be applied to the assessment: paragraph 29; (3) difficulties in obtaining legal aid and representation should be taken into account and given appropriate weight: paragraph 34; (4) when these are put forward as a reason for non-compliance with the time limit, the circumstances will need to be examined with care: paragraph 35; and (5) even if the Court is satisfied as to “good reason” that simply opens up a discretion to allow an appeal to be brought out of time, taking account of all relevant considerations, including the position of the local authority: ibid.

 

Consultation

January 30th, 2020 by James Goudie QC in Decision making and Contracts

There was a duty to consult only on options which represented genuine, i.e. realistic and viable, proposals for change.  The status quo, referred to in the public documents produced at different stages of the consultation process, a status quo of which the local public were well aware, did not have to be part of the consultation. If it were felt that insufficient information had been made available then more could have been requested. So held by the Court of Appeal in R (Nettleship) v NHS South Tyneside CCG (2020) EWCA Civ 46 at paragraphs 59/60 and 63-65 inclusive.

 

Legal Certainty and Limitation

January 30th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

In FMX v HRMC (2020) UK SC 1 the Supreme Court considered the fundamental principle of legal certainty of general application in EU law.  This includes that where national legislative provisions appear to allow legal action without any time limit, then the principle of legal certainty requires it to be done within a reasonable time (paragraph 45, per Lord Briggs).

 

Restitution/Compromise Agreement/Mistake

January 30th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

In Elston v King (2020) EWHC 55 (Ch) the Court considered the situation where a party seeks to set aside a compromise agreement on grounds of common mistake where the compromise was based on a view of the law that was later overturned.  Marcus Smith J said:-

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Legal Advice Privilege

January 30th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

In Civil Aviation Authority v R (ota Jet2.Com Ltd) and the Law Society  (2020) EWCA 35 the Court of Appeal considered when Legal Advice Privilege (“LAP”) is attracted, and affirmed that a claim for LAP requires the proponent of LAP to show that the relevant document, or communication, was created for the “dominant Purpose” (as opposed to one purpose) of obtaining legal advice.  Hickinbottom LJ with whom Patten and Peter Jackson LJJ agreed, considered authorities including Three Rivers (No. 5) and Eurasian, and said:-

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