In ABBASI v NEWCASTLE NHS FOUNDATION TRUST (2025) UKSC 15 the Supreme Court provides important guidance on injunctions restraining speech on matters of public interest, including injunctions to prevent interference with a public authority’s performance of statutory functions. The Court reaffirmed that, though it may be necessary to protect public servants from offensive, abusive or defamatory attacks calculated to affect the performance of their duties, public servants acting in an official capacity may be subject to wider limits of acceptable criticism than ordinary citizens, and that the requirements of protecting them have to be weighed against the interest of freedom of expression or of open discussion of matters of public concern.
INUNCTIONS RESTRAINING SPEECH
April 30th, 2025 by James Goudie KC in Judicial Control, Liability and Litigation
ARTICLE 6
April 30th, 2025 by James Goudie KC in Human Rights and Public Sector Equality DutyIn WALSALL MBC v A MOTHER (2025) EWHC 929 (Fam) Lieven J says that the applicability of Article 6(1) of the European Convention on Human Rights in civil cases depends on the existence of a “dispute” over the civil right in question. The word “dispute” has to be given a substantive meaning rather than a formal one. It is necessary to look beyond the appearances of and language used and concentrate on the realities of the situation according to the circumstances of each case. The dispute had to be genuine and of a serious nature. Unlike the situation in respect of criminal charges under Article 6(3), Article 6(1) gives no authoritative rights to legal assistance in civil disputes. Nor did Article 6 imply that the State has to provide free legal aid for every dispute relating to “civil rights”. The rest is whether legal assistance is “indispensable” for effective access to the Court.
SUBSTANTIVE LEGITIMATE EXPECTATION
April 15th, 2025 by James Goudie KC in Decision making and ContractsIn R (GRANTCHESTER PARISH COUNCIL) v GREATER CAMBRIDGE PARTNERSHIP and CAMBRIDGESHIRE COUNTY COUNCIL and others (2025) EWHC 923 (Admin) Lieven J states, at para 46, that the parameters of what statements can give rise to a legitimate expectation and in what circumstances are complex, with a large number of authorities on various different factual situations. She observes: “When considering these cases it is important to have regard to the precise factual legal context in which many of the judicial pronouncements were made”. At para 47, she identifies 3 key stages: (1) Was there a clear and unambiguous commitment? (2) Was it reasonable and legitimate for the promisee to rely upon it against the public authority? (3) Would it be inappropriate to allow the promisee to enforce the commitment? At para 49 she states that the burden of establishing a commitment which is clear, unambiguous and devoid of relevant qualification rests on the person asserting it; at para 50 that a distinction is drawn between what will be required in cases of substantive legitimate expectation rather than procedural expectation; and at para 56 that if the promise would interfere with the public authority’s statutory duty it cannot give rise to a legitimate expectation.
USES CLASSES
April 14th, 2025 by James Goudie KC in Planning and EnvironmentalIn WEST SUFFOLK COUNCIL v SoS (2025) EWHC 861 (Admin) the Administrative Court discusses the correct interpretation of the TOWN AND COUNTRY PLANNING (USE CLASSES) ORDER 1987, specifically the phrase in Class E(e) “the provision of medical or health services, principally to visiting members of the public” and the phrase in Class E(g)(ii) “the research and development of product or processes”.
Lang J concludes that the natural and ordinary meaning of the language in both cases is clear. As to the former, two things are required. First, there has to be use of premises, or part premises, for the purpose of the provision of medical or health services. Second, the services have to be provided principally to visiting members of the public. As to the latter, two things are required. First, there has to be use, or part use, for the purpose of research and development. Second, that has to be of products or processes.
CONSULTATION
April 10th, 2025 by James Goudie KC in Decision making and ContractsIn R (AB) v BRISTOL CITY COUNCIL and ES and JX v DEVON COUNTY COUNCIL (2025) EWCC 1 a judicial review challenge failed to the entry by the Councils into “Safety Valve Agreements” with the Department of Education in relation to deficits in the Dedicated Schools Grant pursuant to Section 14 of the Education Act 2002. The allegations included breach of the duty to consult under Section 27(3) of the Children and Families Act 2014 and of the PSED. Linden J accepted (para 18) that there was a “powerful reason” for the Councils to take steps to address their deficits at the times when they decided to participate in the Safety Valve Programme and to enter into their SVA.
PSED
April 10th, 2025 by James Goudie KC in Human Rights and Public Sector Equality DutyThe Appellant in R (YVR) v BIRMINGHAM CITY COUNCIL (2025) EWCA Civ 393 is a severely disabled young man who will never be able to work and who is dependent on state benefits. His eligible social care needs have been assessed and are met by Birmingham City Council, which charges him for the provision of those services, as it is entitled but not obliged to do by the applicable legislation, Section 14 of the Care Act 2014 and Regulations. The issue on the appeal was whether the Council’s charging policy was adopted in breach of the PSED on the ground that the Council failed to have “due regard” to the need to eliminate discrimination and to advance equality of opportunity for severely disabled persons such as the Appellant. The Judge held that there was no breach of the PSED. The Appeal to the Court of Appeal failed.
BOUNDARY AGREEMENT
April 9th, 2025 by James Goudie KC in Land, Goods and ServicesThe Appeal in WHITE v ALDER (2025) EWCA Civ 392 is concerned with whether a boundary agreement binds successors in title and whether, if it is capable of doing so, it binds them only if they have knowledge of the agreement. Asplin LJ considered the relevant authorities at paras 21-53 inc. She concluded:-
ECHR ARTICLE 14
April 7th, 2025 by James Goudie KC in Human Rights and Public Sector Equality DutyIn SULLIVAN v ISLE OF WIGHT COUNCIL (2025) EWCA Civ 379, Underhill LJ observed, at paragraph 115, that it is often the case in claims based on Article 14 of the Convention that issues of analogous position, status and objective justification overlap. Lewis LJ reiterated, from paragraph 26, that:-
- Article 14 can be considered only in conjunction with the enjoyment of one or more of the substantive rights or freedoms set out in the Convention; and
- In general terms, the approach to the question of whether differential treatment is contrary to Article 14 involves consideration of four broad issues:
- does the subject matter of the complaint fall within the ambit of one of the Convention rights?;
- has the person making the claim been treated less favourably than other people who are in an analogous, or relevantly similar, situation?;
- is that difference in treatment based on an identifiable characteristic amount to a status?; and
- is the difference in treatment objectively justifiable? That in turn involves consideration of whether the measure giving rise to the differential treatment pursues a legitimate aim and whether there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The burden is on those seeking to contend that measures are objectively justified to demonstrate that this is so.
ARTICLE 8
April 1st, 2025 by James Goudie KC in Human Rights and Public Sector Equality DutyIn N.S, v UK, Judgment 25 March 2025, the European Court of Human Rights is concerned about the making of a final adoption order and compliance with Article 8 of the European Convention of Human Rights. The issue ( paras 159/160 ) was whether the order was necessary in a democratic society. The Court set out (paras 165-171 ) the general principles relevant to child welfare measures. The Court finds no violation of Article 8.