The 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.
Sexual Harassment
October 30th, 2023 by James Goudie KC in Judicial Control, Liability and LitigationWith effect from 26 October 2024, the Worker Protection ( Amendment of Equality Act 2010 ) Act 2023 will introduce a duty on employers to take “ reasonable steps “ to prevent sexual harassment of their employees in the workplace.
Property Guardians
October 30th, 2023 by James Goudie KC in HousingThe Court of Appeal in GLOBAL 100 LTD v JIMENEZ ( 2023 ) EWCA Civ 1243 holds that parts of former office buildings included HOUSES IN MULTIPLE OCCUPATION under Section 254 of the Housing Act 2004. The buildings were occupied by “ property guardians “. Their “ only use “ of living accommodation was as their main residence.
New Acts
October 27th, 2023 by James Goudie KC in GeneralThe following Bills received Royal Assent and were enacted on 26 October 2023
- Online Safety Act, on which see the 11 KBW Panopticon Blog
- Worker Protection ( Amendment of Equality Act 2010 ) Act
- Energy Act
- Non-Domestic Rating Act, which makes a number of technical alterations
- Procurement Act, which will replace existing Regulations
- Levelling-up and Regeneration Act , including provisions in relation to devolution and planning environmental and housing related reforms
- Economic Crime and Corporate Transparency Act
Agent of change principle
October 25th, 2023 by James Goudie KC in Planning and EnvironmentalThe Agent of Change Principle is expressed at paragraph 187 of the NPPF: planning policies and decisions should ensure that new development can be integrated effectively with existing businesses and community facilities. This is because existing businesses and facilities should not have unreasonable restrictions placed on them as a result of development permitted after they were established. In R (TOTTENHAM HOTSPUR LTD) v HARINGEY LBC (2023) EWHC 2569 (Admin) Saini J at paragraphs 48-50 inclusive rejected a challenge that the LPA had failed lawfully to apply the principle, in relation to a major primarily residential redevelopment adjacent to the Tottenham Hotspur Stadium, The planning framework created a framework which would ensure that access to the Stadium, a key planning consideration, would be satisfactorily achieved without unreasonable impact on the Club. The Principle does not demand no impact. A judgment by the LPA is required.