CONSULTATION

May 22nd, 2024 by James Goudie KC in Decision making and Contracts

In R (NCCL) v SSHD (2024) EWHC 1181 (Admin) a Divisional Court (Green LJ and Kerr J) address a consultation issue from para 131, state the basic principles as follows:-

“152. The law governing the obligation to undertake public consultation is now reasonably well settled. A public body or decision maker owes no general duty in all cases to consult interested persons before deciding upon a measure. But the decision maker may become subject to such a duty in certain circumstances. A duty to consult may be enacted by a statutory provision. If the duty is statutory, the scope of the obligation is determined primarily by the terms of the statute. The process ordained in the statute must be followed and must, in addition, be undertaken in a fair manner.

153. A duty to consult may arise at common law in the second, third and fourth cases identified in the judgment of the Court in R (on the application of Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 (Admin), at paragraph [98(2)] where: (i) there has been a promise to consult; (ii) there has been an established practice of consultation; and (iii) where exceptionally a failure to consult would lead to conspicuous unfairness…

154. It is however common ground that where a consultation exercise is carried out voluntarily, it must be carried out “properly and fairly” …

155. Not every process of communication and discussion by a public body with chosen interlocutors engages an obligation to carry out a full consultation exercise meeting the requirements of the Gunning criteria …”

“159. It is important to recognise the purpose of public consultation … its purpose “has various strands”: first, to improve the quality of decision making; secondly, to ensure fairness is accorded to those who may be affected by a regulatory change and to avoid the sense of injustice they may feel if they are not consulted; and thirdly, as “part of a wider democratic process” …

160. Thus, the purpose of consulting goes beyond merely informing the reasoning in support of the eventual decision. Consultation should ensure that the decision is both of high quality and justly reached. Fairness in carrying out a consultation is part of procedural fairness in decision making more generally. In Plantagenet, the Divisional Court treated the common law duty to consult as part of a wider common law duty of fairness, sitting alongside the two other common law duties …: to make sufficient enquiry and to have regard to relevant considerations.

161. As in other contexts where procedural fairness is at issue, what fairness demands will depend on the facts of the case and the context. Whether those demands have been satisfied in a particular case is a matter for the court, not the decision maker.”

“170. The Gunning criteria [do not] necessarily embody the totality of the requirements in all cases where consultation is undertaken on a voluntary basis. The criteria are valuable and might cover very many cases but the test is ultimately one of fairness, a “protean concept”…

171. We start with a question: who must be consulted? The answer to this is context sensitive, in a statutory consultation, the legislation may provide the answer, which may be such persons as the decision maker considers appropriate, or some similar formulation. In such cases, it is for the decision maker to decide, subject to rationality, who is appropriate to be consulted. The Court would not interfere merely because other persons not selected, could have been found appropriate.

172. In other cases, there might be no statutory duty to consult or even no duty to consult at all. …”

“181. … we take the law to be as stated by Elias LJ in the Milton Keynes case: there may be circumstances where a voluntary but selective consultation exercise will render a decision taker pursuant to it unlawful. Such cases might be relatively rare. The Court will tread with care in characterising as a consultation a process of Government engagement with those from whom it seeks advice.”

“184. Ground IV succeeds. A voluntary consultation was undertaken. It was however one-sided and not fairly carried out. For this reason it was procedurally unfair and unlawful.”

The interest of the case is not confined to consultation. At paragraph 115 the Court said:-

“The principles of Parliamentary sovereignty and the separation of powers have their genesis in the common law and it the duty of the courts to protect those principles…

The issue … is whether those constitutional principles are violated when the Executive uses a statutory power to make subordinate legislation for an object and purpose which it has earlier failed to achieve by primary legislation.”

The answer (paragraph 118) was: “No”.

 

HOUSING ACCOMMODATION

May 21st, 2024 by James Goudie KC in Social Care

In R ( CAMPBELL ) v EALING LBC ( 2024 )EWCA Civ 540 the Court of Appeal considers the interaction between the Care Act 2014 and the provisions of the Housing Act 1996 on allocation of housing and on homelessness. The Care Act does not disturb the Housing Act.. Allocation of housing accommodation is to proceed only in accordance with the Housing Act. Section 23 of the Care Act does not have a contrary effect.

 

OPEN SPACE

May 20th, 2024 by James Goudie KC in Land, Goods and Services

In addition to the provisions of the Public Health Act 1875, the Open Spaces Act 1906 and the Local Government Act 1972 on acquisition, appropriation and disposal of land, and statutory trusts for the public enjoyment of open space, there is, applicable to London Borough Councils and parks and open spaces, the Ministry of Housing and Local Government Provisional Order Confirmation ( Greater London Parks and Open Spaces ) Act 1967. These provisions are considered in R ( WILKINSON ) v ENFIELD LBC ( 2024 ) EWHC 1193 (  Admin ), where a judicial review challenge to an agreement between the Council and Tottenham Hotspur Football Club to grant a lease for a sports academy is dismissed.

 

NATIONAL PROCUREMENT POLICY STATEMENT

May 16th, 2024 by James Goudie KC in Decision making and Contracts

The Cabinet Office has issued and presented to Parliament at National Procurement Statement (the NPPS), setting out “the strategic priorities for public procurement and how contracting authorities can support their delivery”.  It is due to come into effect on 28 October 2024.  That will be alongside the introduction of the Procurement Act 2023.  The NPPS identifies national priorities to which contracting authorities should have regard in exercising their functions relating to procurement.  These relate to value for money, social value, SMEs, commercial and procurement delivery, and skills and capability for procurement.

Value for money must be placed at the forefront of all procurement activities: para 8.

As regards Social Value the NPPS states:-

“10.     All contracting authorities should have regard to the following outcomes in their procurement activities, alongside any additional local priorities, where it is relevant to the subject matter of the contract and proportionate to do so:

  • Creating resilient businesses and opportunities for quality employment and skills development.
  • Improving innovation, supply chain resilience and security of supply.
  • Tackling climate change and reducing waste.
  1. There are a number of ways that contracting authorities can implement these outcomes, for example, changes to the way the procurement is structured or the process carried out, the specification of the goods, services or works to be purchased, or the award criteria which will determine the most advantageous tender.
  2. Whilst it can be beneficial to consider such additional benefits, achieving them without overburdening suppliers is crucial. Contracting authorities should ensure that they do not place onerous requirements on suppliers, or use disproportionate clauses in tenders and contracts.  For example, contracting authorities should not ‘gold-plate’ the Equality Act 2010 by setting unnecessary diversity reporting or ‘equality, diversity and inclusion’ requirements for the private and voluntary sectors.”

As regards SMEs, the NPPS states:-

“13.     Small and medium-sized enterprises (SMEs) are the backbone of our economy. It is vital contracting authorities support businesses to achieve sustainable growth and open up public procurement opportunities to more SMEs, voluntary, community and social enterprises (VCSEs) creating a thriving, competitive marketplace.  SMEs not only play a key role in communities by providing a local service and employment but can also offer innovative solutions to public service delivery.

14.       Contracting authorities should ensure that they level the playing field for SMEs, VCSEs and start-ups to compete in public procurement by reducing and removing barriers in the procurement process.”

 

CAPITAL FINANCE AND COMPANIES DIRECTOR LIABILITY

May 16th, 2024 by James Goudie KC in Capital Finance and Companies

It does not follow that because an act done by a company is treated as the company’s act, for which the company can be held liable, a director is immunised from liability.  There is no principle of law which exempts a director, acting in that capacity, from ordinary principles of liability for wrongful acts. However,  in LIFESTYLE EQUITIES v AHMED (2024) UKSC 17 the Supreme Court, addressing the key issue whether, when the wrong is one of strict liability, liability is also strict, or whether proof of knowledge or any other mental element is required, states that it is unjust to hold an individual whose act causes another person to commit a wrong jointly liable for the wrong as an accessory if the individual was acting in good faith and without knowledge of facts which made the act of the other person wrongful.  This point is not particular to company directors.  It does not depend on any special feature of their role.  There is no logical requirement that the knowledge or other mental state required for liability as an accessory must be the same as that required for primary liability; so that, if the primary liability is strict, liability as an accessory must also be strict.  That approach would be logical if inducing someone to commit a tort, or participating in a common design to do so, were simply another way of committing a tort.  But that is not so.  The correct approach is that a person who causes another person to do a wrongful act will only be jointly liable as an accessory for the wrong done if they have knowledge of the essential facts which make the act done wrongful.

 

FORCE MAJEURE CLAUSE: REASONABLE ENDEAVOURS

May 16th, 2024 by James Goudie KC in Decision making and Contracts

A force majeure clause relieves a party from its obligation to perform under a contract on the occurrence of specified events that are beyond the reasonable control of the parties.  Force majeure clauses commonly include, expressly or impliedly, a “reasonable endeavours” proviso, stating that a party cannot however rely on what would otherwise be a force majeure event if that party could avoid the effects of the event by the exercise of “reasonable endeavours”.  The appeal to the Supreme Court in RTI v MUR (2024) UKSC 18 concerned the interpretation of a force majeure clause in a shipping contract.  However, the central issue in the appeal was whether the exercise of reasonable endeavour may require the party affected, if it is to be entitled to rely on the force majeure clause, to accept an offer of non-contractual performance from the other contracting party in order to overcome the effects of the specified event.  Although this question arose in relation to a specific force majeure clause, it has significant implications for the interpretation of reasonable endeavours provisos and force majeure clauses more generally.

The Supreme Court unanimously allowed the appeal.  MUR’s rejection of RTI’s offer of non-contractual performance did not constitute a failure to exercise reasonable endeavours.  Therefore the reasonable endeavours proviso did not prevent MUR from relying on the force majeure clause.  MUR was correct that, absent express wording, a reasonable endeavours proviso does not require acceptance of an offer of non-contractual performance.  This conclusion is supported by principle and by the authorities.

There are several reasons of principle which support MUR’s case.

First, force majeure clauses, and reasonable endeavours provisos, concern the casual effects of impediments to contractual performance. The party affected must be able to show that the force majeure event caused the failure to perform. That means establishing that the failure to perform could not have been avoided by the exercise of reasonable endeavours.  Contractual performance means performance of the contract according to its terms.  Failure to perform means a failing to perform in accordance with those terms.  The casual question is to be addressed by reference to the parameters of the contract.  The object of a reasonable endeavours proviso is to maintain, not alter that contractual performance.

Second, the principle of freedom of contract includes the freedom not to contract.  This extends to the freedom not to accept non-contractual performance.

Third, clear words are needed to forego valuable contractual rights.  RTI’s interpretation is inconsistent with the general principle that contractual parties do not forego their valuable rights without it being made clear that that was their intention.

Fourth, certainty and predictability are of particular importance in the context of English commercial law.  MUR’s case is straightforward: absent clear wording, a reasonable endeavours proviso does not require acceptance of an offer of non-contractual performance. The focus of the reasonable endeavours inquiry is clear: what steps can reasonably be taken to ensure contractual performance.  The limits to that inquiry are also clear; they are provided by the contract.

By contrast, RTI’s case is not anchored to the contract.  It begs a number of questions and gives rise to considerable legal and factual uncertainty.  In particular, it requires inquiries into whether the acceptance of non-contractual performance would: (i) involve no detriment or other prejudice to the party seeking to invoke force majeure, and (ii) achieve the same result as performance of the contractual obligation in question.  There is no justification for creating needless additional uncertainty by departing from the standard of performance provided by the terms of the contract.

 

ECHR ARTICLES 8 AND 10

May 16th, 2024 by James Goudie KC in Human Rights and Public Sector Equality Duty

In BERG v TOWER HAMLETS LBC (2024) EWFC 92 the Court granted applications by journalists who sought the disclosure of transcripts and orders from deprivation of liberty safeguarding proceedings concerning an individual who had been subject to a deprivation of liberty order as a child, so that they could report on their contents.  It was in the public interest to know that the High Court was making orders restricting the liberty of children and young people and to be provided with the opportunity to understand the difficult decisions the Courts had to make and the competing considerations that had to be balanced when making such decisions. The former child (C) wished to contribute to the programme.

On a reading of Section 97 of the Children Act 1989 and Section 12 of the Administration of Justice Act 1960 the publication of the text or a summary of the whole or part of the Orders made in respect of C would not of itself be contempt of court, except where a Court having the power to do so had expressly prohibited the publication.  However, the publication of the transcripts of the hearings in respect of C and of the documents utilised at those hearings, or extracts, quotations or summaries of the same, would be a contempt of court unless expressly authorised by the Court.  When considering whether to relax the protection afforded by Section 2, the Court had to balance competing ECHR rights and to consider the proportionality of the potential interference with each right. The Court also had to consider carefully whether the Order sought was proportionate having regard to its aim.  Where Article 10 was engaged and fell to be considered in the balancing exercise, the Human Rights Act 1998 required the Court to have particular regard to the importance of Article 10 and, where the material in question was journalistic in nature, to the extent to which that information was already in the public domain or the extent to which it was, or would be, in the public interest for the material to be published.

By reason of C’s agreement to the disclosure and publication of the information sought, the rights engaged did not compete as starkly as in some cases.  However, where the material in issue was rendered confidential by operation of Section 12 of the 1960 Act, where the rights engaged were nonetheless in tension with each other to a degree, and in circumstances where the rights of other respondents to the proceedings were also engaged, it remained the Court’s responsibility to consider carefully the comparative importance of the competing rights and to consider the justification for interfering with or restricting each right.

The ambit of C’s Article 8 right to respect for private life was wide, encompassing the narrow concept of personal freedom from intrusion and her psychological and physical integrity, personal development and the development of social relationships and physical and social identity.  C made plain that she struggled with her mental health and has had difficulties adjusting to life as a young adult and forming relationships.  On the face of it, importance attached to C’s Article 8 right when placed in the balance. However, there were powerful justifications for interfering in those rights and in balancing the competing rights particular regard should be paid to the importance of the Article 10 right.

Here, C’s own Article 10 right was firmly engaged and constituted a powerful justification for interfering with her Article 8 right and the Article 8 rights of others.  That conclusion was reinforced where the BBC was providing psychotherapeutic support to C to safeguard her psychological integrity. Further, were was an important public interest in the public being able to understand and scrutinise the operation of the family courts.  That interest was particularly acute where the family court scrutinised and endorsed, or refused, intervention in family life by the State.  Similarly, there was a particular public interest in the applicants being able to publish information regarding orders restricting the liberty of children and young people, some of which, whilst lawful, were being made outside any statutory regime that had been the subject of democratic consultation and approval by Parliament.  Regarding proportionality, the interference in C’s Article 8 rights and the rights of other respondents was proportionate.  However, prohibiting the publication of the information sought would be a disproportionate interference with the Article 10 rights engaged (paras 30-52).

 

CREMATORIUM

May 13th, 2024 by James Goudie KC in Planning and Environmental

In WATHEN-FAYED v SoS and TANDRIDGE DC ( 2024 ) EWCA Civ 507 the Court of Appeal held that a proposed development would not inevitably contravene the provisions of the CEMATORIUM ACT 1902 ( the 1902 Act ). Section 2 of the 1902 Act defines “ crematorium “. It means  “ any building fitted with appliances for the purposes of burning human remains “. That is expressed to include “ everything ancillary or incidental thereto “. Section 5 of the 1902 Act prohibits construction of a crematorium nearer to any dwelling-house than 200 yards ( except with the consent of the occupier ), or within 50 yards of any public highway, or in the consecrated part of a burial ground. The proposed development comprises a crematorium with a ceremony hall, memorial areas, a garden of remembrance, and associated parking and infrastructure. The site consists of 4.5 acres of open fields.

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VICARIOUS LIABILITY

May 10th, 2024 by James Goudie KC in Judicial Control, Liability and Litigation

In SHAMSAN v LOWNDES SQUARE MANAGEMENT COMPANY ( 2024 ) EWCA Civ 436 it was Lowndes’ contractual responsibility to engage managing agents for a building, and they would provide appropriate services. It was NOT Lowndes’ contractual responsibility to provide those services itself.

The managing agents were independent contractors. They could not be liable for negligence by the managing agents. Recent developments in the law of VICARIOUS LIABILITY do NOT undermine the distinction between liability for the acts of an employee and non-liability for acts of an independent contractor.

 

PRIVATE NUISANCE LIABILTY

May 8th, 2024 by James Goudie KC in Judicial Control, Liability and Litigation

DAVIES v BRIDGEND COUNTY BOROUGH COUNCIL ( 2024 ) UKSC 15 concerns liability for private nuisance by undue interference with the enjoyment or use of another person’s land. The nuisance arose from the encroachment of JAPANESE KNOTWEED. The dates are important. Mr Davies bought his land in 2004. By then the knotweed had spread on to that land from land owned by the Council. That however was not at that time an actionable nuisance. That did not occur until 2013. That was when the Council became aware, or ought to have become aware, of the risk of damage to Mr Davies’ land. Information became available about knotweed. The Council’s fault was that between 2013 and 2018 it failed to implement a reasonable and effective treatment programme. That was not done until 2018. The question was whether the Council was liable for diminution in the value of Mr Davies’ land during that period. The Supreme Court, allowing the Council’s appeal from ( 2023 ) EWCA Civ 80, ruled that the Council had no damages liability. This was on the basis of lack of causation. The Council’s breach of duty between 2013 and 2018 had not increased or materially contributed to the diminution in value. That had occurred before any breach by the Council arose in 2013. The subsequent breach was not a causative factor. There was no causal link between the breach of duty and the diminution in value claimed.