Settlement Agreements

October 27th, 2022 by James Goudie KC in Judicial Control, Liability and Litigation

Part 10 of the Equality Act 2010 relates to contracts and other agreements, and collective agreements. Section 144 relates to contracting out. There is a general prohibition. However, there are exceptions from the prohibition. A “qualifying settlement agreement” will not be unenforceable. The meaning of “qualifying settlement agreement” is addressed in Section 147. A number of specified conditions must be met. These include that the contract must relate to “the particular complaint”. In BATHGATE v TECHNIP (2022) EAT 155 it is ruled that the words “the particular complaint” anticipate the existence of an actual complaint or circumstances where grounds for a complaint exist. They are not apt to describe a potential future complaint. It was held that the redundancy agreement in that case did not prevent a claim being made for age discrimination.



October 25th, 2022 by James Goudie KC in Decision making and Contracts

Who, for the purposes of a duty to consult before making a decision, is involved in or “affected by” a proposal? This was considered by Kerr J in R ( RDAG ) v Neath Port Talbot CBC (2022) 2674 (Admin). It is primarily an “evaluative factual judgment” to be made by the decision-maker: para 107. It is not for the Court to interfere with that judgment unless the authority misdirects itself or otherwise errs on established public law principles. The authority must, however, direct itself in accordance with the true meaning of “affected” when that concept is relevant. In those circumstances the meaning is for the Court tom determine, objectively.

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October 24th, 2022 by James Goudie KC in Housing

In ROWE v HARINGEY LBC (2022) EWCA Civ 1370 the Council refused an application under Section 184(1) of the Housing Act 1996, on the ground of overcrowding, for housing assistance, by an applicant who lived with her two young children in a house in multiple occupation (HMO). They had exclusive use of one bedroom. They shared with four other adults a communal kitchen and bathroom. The Council considered that she was snot overcrowded according to the room and space standards in Sections 325 and 326 of the Housing Act 1985 and that it was reasonable for her to continue to occupy under Section 175(3) of the 1996 Act.

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Homelessness – Norton v Haringey LBC

October 21st, 2022 by James Goudie KC in Housing

Section 193 of the Housing Act 1996 is the full housing duty owed by local housing authorities to some homeless. Subsection (1) applies where an applicant is (i) homeless, (ii) eligible for assistance, (iii) in priority need, and (iv) not homeless intentionally. Subsection (2) then provides that, absent reference to another authority, the authority shall secure that accommodation is available for occupation by the applicant. The discharge of this duty is subject to a number of technical requirements. Some of these requirements have been considered by the Court of Appeal in NORTON v HARINGEY LBC (2022) EWCA Civ 1340. In that case the question was whether Haringey had discharged the Section 193(2) duty by making a private sector rented offer of accommodation.

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Equal Treatment and Transparency

October 20th, 2022 by James Goudie KC in Decision making and Contracts

In Case T-717/20, LENOVO v EuroHPC, Judgment on 19 October 2022, the EU General Court says that:-

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Town or Village Green

October 18th, 2022 by James Goudie KC in Land, Goods and Services

The Commons Act 2006 (“the 2006 Act”) provides a right to apply for the registration of a town or village green (“TVG”) in relation to land which has been used as of right for “lawful sports and pastimes” for at least 20 years by a significant number of inhabitants of any locality, or neighbourhood within a locality.  One effect of the statutory protection given to a TVG is that most forms of development or precluded.  Because of concerns that the TVG registration system was being used to prevent development proposed or approved through the planning system, the Growth and Infrastructure Act 2013 (“the 2013 Act”) amended the 2006 Act so as to disapply the right to apply to register land as a TVG if one of a number of “trigger events” takes place. One such event is where a development plan document identifies the land in question “for potential development”.

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Director Duties

October 11th, 2022 by James Goudie KC in Capital Finance and Companies

In BTI 2014 LLC v SEQUANA (2022 UKSC 25 the Supreme Court say that Directors owe their duties to the company, rather than directly to shareholders or creditors of the company. There is not a free-standing duty owed to creditors. However, where the company is insolvent, or bordering on insolvency, then the interests of creditors as a general body should be considered even if , and balanced against the interests of shareholders. The greater the company’s financial difficulties the more  the directors should prioritise the interests of creditors when making for example to  pay a dividend and if so how much. Once insolvency is inevitable the  creditors’ interests become paramount.



October 3rd, 2022 by James Goudie KC in Judicial Control, Liability and Litigation

In Plymouth City Council v ABC (2022) EWHC 2426 (Ch) the Council claims that the defendant downloaded personal data and confidential information otherwise than for the purpose of carrying out her duties as an employee of the Council and without the Council’s consent. The defendant applied for anonymity. This has been refused. The issue was the effect if any of the Sexual Offences (Amendment) Act 1992. That Act does not confer power on the Court to order that any party to proceedings should be anonymised. What it does do is to make it a criminal offence to identify certain persons in any publication thereafter. The question was whether the Act applies where there are no criminal proceedings in which an allegation of a relevant offence has been made. There was no clear authority on the point, albeit Sales J as he then was had, in National Westminster Bank v Lucas (2014) EWHC 653 (Ch), the Jimmy Saville case, expressed doubt that the Act had the effect of granting anonymity outside the context of criminal proceedings, and Keenan J in Birmingham City Council v Riaz (2016) 1 FLR 797 did not appear to consider that the 1992 Act was engaged. The Judge in the Plymouth case concluded, at paragraph 30,  that the Act applies only where a formal allegation is made in criminal proceedings, that is, where a criminal charge has been made.


Fairness (R (Timson) v SoS for Work & Pensions (2022) EWHC 2392 (Admin))

September 26th, 2022 by James Goudie KC in Decision making and Contracts

In R (Timson) v SoS for Work & Pensions (2022) EWHC 2392 (Admin) Cavanagh J considered the case-law authorities on the circumstances in which written guidance to decision makers may render unlawful the exercise of statutory discretion, the test for judicial review of a policy at common law, the Padfield and Tameside obligations, and, from para 150,  the fairness obligation. He reiterated that the rule is that, BEFORE a statutory purpose is exercised, ANY person who FORESEEABLY would be SIGNIFICANTLY DETERIMENTALLY AFFECTED should be given the OPPORTUNITY TO MAKE REPRESENTATIONS IN ADVANCE unless (1) the statutory provisions concerned expressly or impliedly provide otherwise or (2) the circumstances in which the power is to be exercised would render it 9i) impossible, (ii) impractical or (iii) pointless, any argument in support of which should be VERY CLOSELY EXAMINED. A Court will be SLOW TO OLD that there is no obligation to give the opportunity, when such an obligation is not dispensed with in the relevant statute. Cavanagh J considered common law claims and ECHR rights. As to the latter, he considered whether the claimant was a “victim” for the purposes of Section 7 of the Human Rights Act 1998, and whether there was a breach of the claimant’s rights under Article 1 of the First Protocol, in the context of social security benefits. In a control of use case, just as in a deprivation or expropriation case, a FAIR BALANCE must be struck between the demands of the general interests of the community and the REQUIREMENT of the protection of the individual’s FUNDAMENTAL RIGHTS. The rules of domestic law must be sufficiently ACCESSIBLE,  PRECISE and FORESEEABLE. The fact that the case is concerned with a control of use rather than deprivation of property may be relevant, for example, if may have an impact upon the FAIR BALANCE ISSUE. The fair balance test is addressed at paras 258-261 inclusive. Cavanagh J also considered the question sof “other status”  and comparator for the purposes of Article 14 of the ECHR.


Procurement Damages

September 22nd, 2022 by James Goudie KC in Decision making and Contracts

In Braceurself Ltd v NHS England (2022) EWHC 2348 (Admin) there was a two-horse contract race. The outcome of the procurement competition was very close. Even minor breaches of the procurement regime by the contracting authority could have had a decisive impact on the outcome. There was an actual loss of the contract, not the mere loss of the chance of winning a contract.  There was a breach. The Claimant sought damages. It failed, notwithstanding the “powerful impact” of the breach on the outcome. The breach was held not to be “sufficiently serious” to justify an award of FRANCOVICH/BRASSERIE DU PECHEUR damages. Whether that was the case, in accordance with the House of Lords decision in FACTORTAME, the UK Supreme Court decision in ENERGY SOLUTIONS v NUCLEAR DECOMMISSIONING AUTHORITY and the decision of the Court of Appeal in DELANEY v SoS for TRANSPORT, was the issue. That depended on all the many relevant factors and the individual facts of the case, as recognized by the Court of Appeal in Ocean Outdoor v Hammersmith & Fulham LBC. The impact of the breach on the availability of public services is amongst the relevant considerations. The Judge said, at para 90, that the phrase “sufficiently serious” indicates that a “fairly high threshold” must be passed before it can be said that, in all the circumstances, the test had been satisfied. This was because (1) it was a single breach case, (2) the breach was at the excusable end of the spectrum and minor, (3)the was inadvertent and occurred in good faith, (4) the Defendant’s purpose was a laudable one, (5)  overall the procurement was carefully planned and well-organised, (6) the adverse impact from the breach was limited, and (7) the case was far removed from the multiple breach case in ENERGY SOLUTIONS.