In KYLE v COVENTRY CITY COUNCIL (2023) EWCA Civ 1360 the Court of Appeal says at para 42 that (1) there is no need for accommodation to be so bad that a person could not be expected to stay there for another night for there to be homelessness for the purposes of the Housing Act 1996, (2) on the other hand, a person does not have to be entitled to remain in accommodation indefinitely, or for any particular period of time for it to be “ reasonable for him to continue to occupy “ it; (3) neither need he have accommodation which it would be “ reasonable …to continue to occupy” for ever; (4) in general at least Section 175(3) will be satisfied and a person will not be “homeless” if there is accommodation which it would be “ reasonable for him to continue to occupy “over the period which would elapse before the local housing authority re-housed him; (5) the physical characteristics of accommodation will often be of central importance in determining whether it is “ reasonable … to continue to occupy “it; (6) Restrictions affecting the person’s life in , and use of, the accommodation may also be relevant.
Time Limits
November 16th, 2023 by James Goudie KC in Judicial Control, Liability and LitigationLimitation periods for bringing claims are set out in the Limitation Act 1980. The commencement of the period is postponed when any fact relevant to the right of action has been “deliberately concealed” from the claimant by the defendant. “Deliberate concealment” includes when there is a “deliberate commission of a breach of duty” in circumstances in which it is unlikely to be discovered for some time. The meaning of “deliberately” and “concealed” in this context are clarified by the Supreme Court in CANADA SQUARE OPERATIONS LIMITED v POTTER (2023) UKSC 41.
The Supreme Court holds that a fact will have been “concealed” if the defendant has kept it secret from the claimant, either by taking active steps to hide it or by failing to disclose it. Contrary to previous Court of Appeal authority, the claimant does not need to establish that the defendant was under a legal, moral or social duty to disclose the fact, nor does she need to show that the defendant knew the fact was relevant to the claimant’s right of action. All that is required is that the defendant deliberately ensures that the claimant does not know about the fact in question and so cannot bring proceedings within the ordinary time limit. Read more »
Council Tax: HMOs
November 8th, 2023 by James Goudie KC in Council Tax and RatesThe Chargeable Dwellings and Liability for Owners, SI 2023/1175,amend 1992 council tax measures (1) so that a house in multiple occupation is always treated as a single dwelling for the purposes of council tax in England and (2) to expand the prescribed class of houses in multiple occupation for which the owner, as opposed to the resident, is responsible for paying the council tax.
Abuse of Process
November 8th, 2023 by James Goudie KC in Judicial Control, Liability and LitigationTo what extent, if at all, can a claim, which is in time, and found to be arguable on the merits, be struck out as an abuse of process, because of what was said (or not said) at an earlier hearing in separate but unrelated proceedings? That was the issue before the Court of Appeal in ORJI v NAGRA (2023) EWCA 1289. The Court addressed the rule in HENDERSON v HENDERSON and found that it was not applicable.
Procurement
November 7th, 2023 by James Goudie KC in Decision making and ContractsThe 831 paragraph Judgment in the utility case of SIEMENS v HS2 (2023) EWHC 2768 (TCC) covers amongst other matters scoring challenges, change of control consent, evaluation, including power to seek clarification, abnormally low tender (ALT) review, verification prior to negotiation, pre-contract checks, modification, conflict of interest, adequacy of reason and judicial review. Legal principles on award criteria, equal treatment and transparency, and manifest error are set out between paras 135-146 and 575-577. The power to seek clarification is addressed at paras 511-516. The applicable test for ALT appears at para 559; the legal principles applicable to ascertaining the date when an economic operator first had actual or constructive knowledge of material grounds at paragraphs 731-735; abuse of process at paras 793-797; the adequacy of reasons at paras 817/818; and judicial review claims at paras 825-829. Siemens claim failed in all respects.
Limited Partnership
November 7th, 2023 by James Goudie KC in Judicial Control, Liability and LitigationThe question before the Court in FRONTIERS CAPITAL 1 LIMITED PARTNERSHIP v FLOHR (2023) EWHC 2723 (Ch) was whether the general partner of a limited partnership governed by the Limited Partnerships Act 1907 (the 1907 Act) has standing after the dissolution and apparent winding up of the partnership to sue a third party in respect of a cause of action accruing before dissolution. A limited partnership under the 1907 Act is of course different from an ordinary partnership under the Partnership Act 1890 (the 1890 Act) and from a limited liability partnership under the Limited Liability Partnership Act 2000.
Disclosure of Information
November 3rd, 2023 by James Goudie KC in Decision making and ContractsDisclosure by an authority of information that is requested under FoIA does not apply if the information is “exempt information” under Part 2 of FoIA if or to the extent that it is an absolute exemption or “in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.” A number of exemptions involve assessing prejudice. The approach to assessing prejudice is revisited in FANTA v INFORMATION COMMISSIONER (2023) UK FTT 00908 (GRC). First, the applicable interests within the relevant exemption must be identified. Second, the nature of the prejudice being claimed must be considered. It is for the decision maker to show that there is some causal relationship between the potential disclosure and the prejudice, and that the prejudice is “real, actual or of substance”. Third, the likelihood of occurrence of prejudice must be considered. The degree of risk must be such that there is a “real and significant risk” of prejudice, or there “may very well” be prejudice, even if this falls short of being more probable than not.
Rates
November 2nd, 2023 by James Goudie KC in Council Tax and RatesThe Non-Domestic Rates Act 2023 contains provisions on liability and mandatory relief ( Sections 1-3 ). Discretionary relief ( Section 4 ), administration, including frequency with which lists are compiled ( Sections 5-9 0, disclosure of valuation information ( Sections 10-13 ) and valuation and multipliers ( Sections 14/15 ). Schedule 1 ( 69 paras 0mcontains consequential provisions ).
Exempt Information
October 31st, 2023 by James Goudie KC in Council Tax and RatesSection 44 of the Freedom of Information Act 2000 (FoIA) contains an absolute exemption from disclosure. Indeed it prohibits disclosure. The circumstances include when disclosure is “prohibited by or under any enactment”. Sections 17-23 inclusive of the Commissioners for Revenue and Customs Act 2003 (the 2003 Act) relate to Information. Section 17 is concerned with use of information, Section 18 with confidentiality, Section 19 with wrongful disclosure, Section 20 with public interest disclosure, Section 21 with disclosure to prosecuting authority, Section 22 with data protection, and Section 23 with freedom of information. Disclosure is prohibited of revenue and customs information if the disclosure would specify the identity of the person to whom the information relates, or would enable the identity of such a person to be deduced. In STITT v INFORMATION COMMISSIONER (2023) UK FTT 887 (GRC) the FTT held that the Valuation Office Agency was right to have withheld information it held that related to council tax valuation bands. This includes the address, relevant local authority and bands for each property in England and Wales. Disclosure would enable identification of the person to whom the information related.