The appeal in R ( Majera) v SSHD (2021) UKSC 46 raised a question of constitutional importance: whether it is possible to act lawfully in a manner which is inconsistent with an Order of a Judge which is defective, without first applying for, and obtaining, the variation or setting aside of that Order. The answer, reversing the Court of Appeal, is: No.
The Test of Irrationality
October 13th, 2021 by James Goudie KC in Judicial Control, Liability and LitigationIn Pantellerisco v SoS for Work & Pensions (2021) EWCA Civ 1454 Underhill LJ for the Court of Appeal says, at para 56, that the “degree of intensity” with which the Court will review the reasonableness of a public law act or decision “ varies “according to the “nature” of the decision in question, and, at para 57, that in the context of governmental decisions in the field of “social and economic policy” the administrative law test of unreasonableness is generally applied with “considerable care and caution.” The approach of the Courts is in general to accord a “high level of respect” to the judgment of public authorities in that field. This respects the “separation of powers” between the judiciary and the elected branches of government.
Harassment
September 29th, 2021 by James Goudie KC in Judicial Control, Liability and LitigationIn Ashford Borough Council v Wilson (2021) EWHC 2542 (QB) the Borough Council and its Chief Executive sought on their own behalf and on behalf of the current and former officers, employees, councillors and agents of the Council, a final anti-harassment injunction against the Defendant, a large-scale landlord in Kent, pursuant to the Protection from Harassment Act 1997 [“the 1997 Act”]. The Claimants’ complaints related, principally, to letters and emails sent by the Defendant.
DISCRIMINATION IN RECRUITMENT OF FOSTER CARERS
September 28th, 2021 by James Goudie KC in Human Rights and Public Sector Equality DutyIn R (Cornerstone) v OFSTED (2021) EWCA Civ 1390 the Court of Appeal held that OFSTED had power to require Cornerstone to disapply or modify its recruitment policy for foster carers, as contained in its charitable instrument, notwithstanding the views of the Charity Commission. Different regulators May each reach their own conclusion within their respective competencies. When carrying out Inspections, OFSTED is entitled to have regard to the Equality and Human Rights Acts.
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Compulsory Purchase
September 21st, 2021 by James Goudie KC in Land, Goods and ServicesR (Gardner) v Lancaster City Council (2021) R.V.R. 177 was concerned with a claim for additional compensation under Section 23 of the Land Compensation Act 1961. There were two issues. The first was whether planning permission could be deemed to have been granted within 10 years. The Judge, Martin Rodger QC, addresses the interpretation of “ deemed”. The second was whether a planning permission was granted for the purposes of the 1961 Act when a resolution to grant was passed subject to conditions such as entry into a Section 106 agreement. No, says the Judge, at para 49.
Pension Scheme Governance
September 21st, 2021 by James Goudie KC in Decision making and ContractsThe Taskforce on Pension Scheme Voting Implementation has set out its Recommendations to the DWP on voting system issues and the respective roles of pension trustees and asset managers and communication between them. Currently, when pension schemes invest in pooled funds, they surrender their rights to vote at the AGMs of the companies they invest in. The asset managers in charge of these pooled funds are not always prepared to engage with their clients’ voting preferences, on issues such as climate risk management, diversity, and pay.
Fundamental Dishonesty in Relation to Claim
September 20th, 2021 by James Goudie KC in Judicial Control, Liability and LitigationThe central issue in Elgamal v Westminster City Council (2021) EWHC 2510 (Admin) was whether the Claimant had on the balance of probabilities been fundamentally dishonest in relation to his personal injury claim against the Council and accordingly the provisions of Section 57 of the Criminal Justice and Courts Act 2015 were applicable. Jacobs J. said:-
Air Pollution
September 16th, 2021 by James Goudie KC in Environment, Highways and LeisureA local authority must not act in a way which contributes indirectly towards, or facilitates, a breach of ECHR Article 8 rights, for example by providing land for or subsidising a pollution causing waste disposal or other plant: Lopez Ostra v Spain (1994) 20 EHRR 277. A local authority may be liable for inaction, or insufficiently speedy and robust action, against polluters and the perpetrators of nuisance, or for the environmental consequences of development which the authority provides under economic development powers, or which the authority permits, as landowner, or as planning or licensing authority. There may be positive obligations under Article 8 and fair balances have to be struck.
EMERGENCY TRANSPORT PLAN
September 10th, 2021 by James Goudie KC in Environment, Highways and LeisureLocal authorities are subject to a network management duty. Section 16(1) of the Traffic Management Act 2004 imposes a duty upon them not only to manage their road network, but to do so with a view to achieving objectives which include securing the expeditious movement of traffic upon the network. The duty is subject to reasonable practicability, and is elaborated upon in Section 16(2). In Trail Riders Fellowship v Devon County Council (2013) EWHC 2104 (Admin) the Court held that the highway authority had been entitled to make a Traffic Regulation Order prohibiting motor vehicles from using part of a road where that was expedient in the interests of road safety.
In HHRC Ltd v Hackney LBC (2021) EWHC 2440 ( Admin) Dove J says, at para 42, that the terms of Section 16 provide the authority with broad parameters within which to act consistently with the duty, that the objectives of Section 16 are broad, and qualified by the need to act, as far as reasonably practicable, having regard to the local authority’s other obligations and Policies. There is also statutory Guidance from the SoS. Read more »