The extent to which an existing contract can be varied and the same contract continue as varied and when the purported variation or modification will amount to there being a new contract is a question that arises in at least two contexts. One situation is in relation to the procurement of contracts and the EU driven public procurement regime. That is governed by that statutory regime. The other situation is when the question is governed by the common law of contract. It was the latter with which the Court of Appeal were concerned in Cobalt Data Centre v HMRC (2022) EWCA Civ 1422.
Rectification of Contracts
October 28th, 2022 by James Goudie KC in Decision making and ContractsIndividual contracts of employment between local authorities and other bodies as employers and their employees commonly incorporate provisions from collective agreements with Trade Unions. To the extent that happens individual employees can seek rectification of the provisions on usual contractual principles. However, However, the collective agreements as such will not generally provide that they are legally enforceable. Then the Trade Union will not be able to seek rectification. That is because collective agreements are not themselves legally enforceable save where they so provide : Section 179 of TULRCA 1992. The equitable remedy of rectification is available only in respect of legally enforceable agreements : the Court of Appeal in Tyne & Wear Passenger Transport Executive v RMT (2022) EWCA Civ 1408.
Environmental Demonstrators
October 27th, 2022 by James Goudie KC in Judicial Control, Liability and LitigationBREEN v ESSO PETROLEUM (2022) EWCA Civ 1405 is concerned with an environmental protestor guilty of civil contempt of court and the appropriate sanction. The Court addresses in paras 6 & 7 the correct approach to sanctions in contempt cases and in paras 8-11, 13-15, and 72 the particular considerations in protestor cases. An important objective of the sanction is to ensure future compliance with the order in question. The importance of complying with court orders, no matter the sincerity of the protestor’s views, is paramount. In a democratic society, it is the duty of responsible citizens to obey the law and respect the rights of others, even where the law or other people’s activities are contrary to the protestor’s own moral conviction. There is no default position or presumption that a protestor in contempt of court will ordinarily receive a suspended sentence. There is no principle that immediate custody is appropriate only in cases of direct harm and disruption to the public.
Permitted Development Rights
October 27th, 2022 by James Goudie KC in Planning and EnvironmentalThe exemption from the normal processes of development control for permitted development is held in R (Hayes) v Stroud DC (2022) EWHC 2661 (Admin) no longer to apply once the permitted use of a building within the planning unit for agricultural purposes has ceased permanently and been replaced by another use or a combination of uses.
Settlement Agreements
October 27th, 2022 by James Goudie KC in Judicial Control, Liability and LitigationPart 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.
Consultation
October 25th, 2022 by James Goudie KC in Decision making and ContractsWho, 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.
Overcrowding
October 24th, 2022 by James Goudie KC in HousingIn 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.
Homelessness – Norton v Haringey LBC
October 21st, 2022 by James Goudie KC in HousingSection 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.
Equal Treatment and Transparency
October 20th, 2022 by James Goudie KC in Decision making and ContractsIn Case T-717/20, LENOVO v EuroHPC, Judgment on 19 October 2022, the EU General Court says that:-
Town or Village Green
October 18th, 2022 by James Goudie KC in Land, Goods and ServicesThe 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”.