The issue before the Supreme Court in Pakistan International Airline Corporation v Times Travel (2021) UKSC 40 was whether, and, if so, in what circumstances, a party can set aside a contract on the ground that it was entered into as a result of the other party threatening to do a lawful act. The Supreme Court examines the elements of the doctrine of lawful act economic duress.
Legitimate Expectation
August 16th, 2021 by James Goudie QC in Decision making and ContractsThe requirement for the existence of a legitimate expectation that an assurance was “clear, ambiguous and devoid of relevant qualification” means that it’s creation will arise only where the claimant proves “the clearest of assurances”. The same test applies whether or not the case involves the removal of an existing right. So held in R (Mitchell) v SoS for Justice (2021) EWHC 2248 (Admin).
ETO
August 16th, 2021 by James Goudie QC in Environment, Highways and LeisureA statutory challenge to a decision in February 2021 not to revoke an Experimental Traffic Order in relation to a street in the Barbican failed in R (Tomkins ) v City of London Corporation (2021) EWHC 2265 (Admin). The challenge was on the basis that it was no longer possible to continue with the experiment in any meaningful way once traffic levels had reduced because of covid lockdown. However, monitoring had continued, albeit on a less comprehensive basis than intended, and useful data obtained. A genuine experiment continued. Not revoking the ETO was not irrational. See especially para 101 of the Judgment, and the treatment at para 86 of Trail Riders v Peak District Authority (2012) EWHC 3359 (Admin).
Unjust Enrichment
August 10th, 2021 by James Goudie QC in Judicial Control, Liability and LitigationThe most common defences to restitution claims are limitation and change of position. How far does a defendant have to go in proving the irreversibility of the unjust enrichment for the purposes of the change of position defence? Not so far as to pursue litigation in mitigation of loss if there is “little chance of recovery”. See paragraph 76 in Atkinson v Varma (2021) EWHC 2027 (Ch).
Balance of Convenience
August 9th, 2021 by James Goudie QC in Decision making and ContractsThe commencement of proceedings challenging the procurement of a contract brings into effect an automatic stay upon entering into the contract. Should the Court lift the stay? If there is a serious issue to be tried, and there is doubt as to the adequacy of damages for either of the parties, the issue turns on balance of convenience. In Draeger v London Fire Commissioner (2021) EWHC 2221 (TCC) O’Farrell J, at para 48, states that the balance of convenience test requires the Court to consider all the circumstances of the case. The question is what course of action is likely to carry the least risk of injustice. She restates the factors: (1) how long might the suspension have to be kept in force if an expedited trial could be ordered; (2) the public interest; and (3) the interests of all parties, including the successful bidder. If these factors do not point in one direction then the prudent course will usually be to lift the suspension and allow the contract to be entered into.
Flexible Tenancies
August 9th, 2021 by James Goudie QC in HousingA local housing authority has no power or discretion to accept a request for a review of their proposal not to grant another tenancy on the expiry of the fixed-term of the tenant’s existing flexible tenancy, if that request is made more than 21 days after the service of a notice pursuant to Section 107D(3) of the Housing Act 1985; but when there can be a review the underlying merits may be relevant. So held by Cavanagh J in R (Kalonga) v Croydon LBC (2021) EWHC 2174 (Admin).
Legal Professional Privilege
August 5th, 2021 by James Goudie QC in Judicial Control, Liability and LitigationIn assessing a FoIA request the in-built “significant weight” to be afforded to LPP is something to be considered in any event. It is not necessary for the party claiming LPP to demonstrate any specific prejudice or harm from the specific disclosure of the documents in question, or to establish either that Council officials would be inhibited from seeking advice if disclosure were made in the case or that advisers would be less likely to provide frank advice. Significant weight needs to be given to the public interest in maintaining LPP. This does not mean that the LPP exemption is absolute. All will depend on the public interest factors weighed in the balance. Disclosure is always a possibility which depends on public interest factors which are not in the control of decision-makers and their advisers, but an authority will most often be entitled to obtain legal advice on an issue and to rely on LPP to withhold it even when a request is made under FoIA. That is because of the built-in public interest in maintaining LPP. See FTT at paragraphs 31-35 inclusive in Murray-Smith v Information Commissioner, EA/2021/0039V, 4 August 2021.
ECHR
August 4th, 2021 by James Goudie QC in Human Rights and Public Sector Equality DutyProtocol 15 to the ECHR has entered into force. It amends the Preamble to the ECHR, to include references to (1) the subsidiarity principle and (2) the margin of appreciation doctrine. The Protocol also makes procedural changes.