Interim Injunction

October 9th, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

In R ( LOCHAILORT INVESTMENTS ) v MENDIP DISTRICT COUNCIL (2019) EWHC 2633 ( QB ) the Court was concerned with an application for an interim injunction to stay a Referendum on a Neighbourhood Plan. On the balance of convenience, Stein J said, at para 28, that an important factor is the general public interest in permitting a public authority to continue to act in a manner which it considers to be in the public interest. However, she considered, at para 35, that the cost, disruption and uncertainty of proceeding with a Referendum in circumstances where the lawfulness of doing so is the subject of a challenge that has reasonable prospects of success, are matters which, in the circumstances of the case, weighed in favour of granting the injunction. Moreover, para 39, the status quo was the position before the planned Referendum has taken place.

 

Concession Contracts

October 8th, 2019 by James Goudie QC in Decision making and Contracts

In OCEAN OUTDOOR UK LTD v LONDON BOROUGH OF HAMMERSMITH AND FULHAM (2019) EWCA Civ 1642 the Court of Appeal has dismissed Ocean’s appeal from O’Farrell J’s Judgment dismissing Ocean’s claim that the Concession Contracts Directive and Regulations applied to two leases of land owned by the Council either side of the Hammersmith Flyover on which are situated substantial structures which support large digital advertising screens. The Court of Appeal confirmed (1) that the leases were not “services” concessions contracts, (2) that they were not contracts “for pecuniary interest”, and (3) that in any event the land exemption applied. As to (1), the Directive and Regulations relate to services which are for the benefit of the contracting authority or its residents, in furtherance of the authority’s strategic objectives or to satisfy their statutory obligations. As to (2), an essential requirement of a contract for pecuniary interest is that the contractor assumes a legally enforceable obligation to carry out the services. As to (3), the land exemption is wide: the leases were genuine leases and agreements for the rental of land.

 

PSED

October 8th, 2019 by James Goudie QC in Human Rights and Public Sector Equality Duty

In SIMONE v CHANCELLOR OF THE EXCHEQUER (2019) EWHC 2689 (Admin) Lewis J said, at para 63, with respect to Section 149 of the Equality Act 2010, that it is helpful to identify the specific function(s) that the public authority is exercising. This is because it is in the exercise of its functions that a public authority is under a duty to have due regard to the specified matters. Lewis J added that the question of what regard is due will be influenced by a number of factors, including, but not limited to (1) the nature of the decision being taken, (2) the stage of the decision-making process that has been reached, and (3) the particular characteristics of the function being exercised.

 

GPOC

October 7th, 2019 by James Goudie QC in Decision making and Contracts

In QUALTER v PRESTON CROWN COURT AND CHESHIRE WEST AND CHESTER COUNCIL (2019) EWHC 2563 (Admin) a Divisional Court emphasised the breadth of the General Power of Competence under Section 1 of the Localism Act 2011 as compared with the well-being power under Section 2 of the Local Government Act 2000. GPOC authorised a trading standards investigation into energy brokers. Investigations into fraudulent activity are not subject to the expediency test in Section 222(1) of the Local Government Act 1972 : they are different in this respect from a prosecution. The Court said that it is clear from the terms of Section 1 of the Localism Act that Parliament intended that the powers of local authorities should be “ widened” ( but not unfettered ). “ Any Court must be very slow to interfere with a local authority’s exercise of their general power. “

 

 

Air Quality

October 2nd, 2019 by James Goudie QC in Planning and Environmental

Gladman Developments Ltd v SoS for CLG and Swale Borough Council (2019) EWCA Civ 1543 is concerned with the likely effects of a proposed housing development on air quality, the Air Quality Directive, 2008/50/EC, the national air quality plan and the NPPF, and mitigation measures proposed by the developer. The Air Quality Directive is transposed into domestic law by the Air Quality Standards Regulations 2010.   The Council had published an Air Quality Management Area Action Plan.

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PSED

October 2nd, 2019 by James Goudie QC in Human Rights and Public Sector Equality Duty

In R (Parkin) v SoS for Work and Pensions (2019) EWHC 2356 (Admin) Elisabeth Laing J at paragraph 88 identified four key features relevant to that case (in relation to universal credit) of the many decisions about the scope of Section 149 of the Equality Act 2010: (i) Section 149 does not require a substantive result; (ii) it implies a duty to make “reasonable inquiry” into the obvious equal impacts of a decision; (iii) it requires a decision-maker to understand the obvious equality impacts of a decision before adopting a policy; and (iv) complying with it is not a box-ticking exercise.

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Injunctions against persons unknown

September 30th, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

An injunction should not be granted against persons unknown when the wording of the injunction sought to restrain tortious conduct is wide enough to include persons who had not committed, or threatened to commit, any civil wrong. In Canada Goose v Persons Unknown (2019) EWHC 2459 (QB) Nicklin J said, at paragraphs 62-89 and 144-163, that the class of people potentially captured as “persons unknown” was not Read more »

 

Expenses Incurred

September 19th, 2019 by James Goudie QC in Elections and Bylaws

In R (Good Law Project) v Electoral Commission (2019) EWCA Civ 1567 the Court of Appeal was concerned with the interpretation of the phrase “expenses incurred”, which is to be found throughout election legislation, and dates from the middle of the nineteenth century. The Court observed, at paragraph 82, that it did not appear to have caused any great difficulty in practice.  The Court referred, at paragraph 83, to the Cockermouth Division case (1901) 5 O’M v H 155, and said:-

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Non-Party Costs Order

September 19th, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

In Aldemir v Cornwall Council (2019) EWHC 2407 (Admin) Swift J held that Magistrates acting pursuant to their appeal jurisdiction under Section 181(2) of the Licensing Act 2003 had the power to make a non-party costs order in favour of the licensing authority whose decision was appealed.  However, in this case the procedure followed when the costs orders were made was found to be flawed.  Swift J said:-

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Injunctions

September 19th, 2019 by James Goudie QC in Judicial Control, Liability and Litigation

In Redcar & Cleveland BC v PR (2019) EWHC 2305 (Fam) Cobb J considered the circumstances in which interim injunctions are granted to local authorities under the Court’s inherent common law jurisdiction to protect vulnerable adults. That jurisdiction is not confined to cases where a vulnerable adult is disabled by mental incapacity from making his or her own decision about the matter in hand, and cases where an adult, although not mentally incapacitated, is unable to communicate his decision.  The jurisdiction extends to a wider class of vulnerable adults, where there is evidence of vulnerability and a need to protect the vulnerable person, and statutory processes would not offer the level of protection needed.  Nor is the jurisdiction excluded if the order amounts to a deprivation of liberty, at any rate if any such deprivation does not exceed six weeks.   Cobb J said  (paragraph 46):-

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