Duty of Care

March 30th, 2021 by James Goudie KC in Judicial Control, Liability and Litigation

In Anchor Hanover Group v Oxfordshire County Council and Others (2021) EWHC 543 (TCC) O’Farrell J at para 59 stated principles as follows: (1) Local and other public authorities do not owe any duty of care at common law simply by exercising their statutory duties and powers; (2) The absence of a duty of care extends to advice given as part of the exercise of such duties; (3) However, a common law duty to protect from harm may arise, where the principles applicable to a private party would impose that duty; and (4) Such cases include where there is an assumption of responsibility.

 

 

GPOC: Wales

March 24th, 2021 by James Goudie KC in Decision making and Contracts

Note the draft General Power of Competence (Commercial Purpose) (Conditions) (Wales) Regulations 2021, pursuant to Sections 24 and 27/28 Of the Local Government and Elections (Wales) Act 2021, requiring amongst other things authorities to prepare and approve a Business Case before using the General Power to do things for a commercial purpose/trading, together with regulatory Impact Assessment, and Welsh Government Consultation Document, for response by 11 June 2021. The General Power comes into force for principal councils on 1 November 2011 and for eligible community councils on 5 May 2022.

 

Duty of Candour

March 19th, 2021 by James Goudie KC in Judicial Control, Liability and Litigation

In DVP v SSHD (2021) EWHC 606 (Admin) the Divisional Court emphasised the importance of the duty of candour when making applications for judicial review. Dame Victoria Sharp P said at para 9: “The duty of candour in this context means that the claimant must disclose any relevant information or material fact which either supports or undermines his case. Material facts are those facts which it is material for a judge to know when dealing with the urgent application. The duty requires the claimant to make the court aware of the issues that are likely to arise and the possible difficulties in the application or underlying claim.” She added, at para 10, that if there is a breach of the duty an order will be set aside even if it might otherwise have been justified. See also paras 73-80.

 

Rough Sleepers During Covid

March 11th, 2021 by James Goudie KC in Housing

R (Ncube) v Brighton & Hove City Council (2021) EWHC 578 (Admin) concerned the powers available to a unitary local authority, with both housing and social care duties and powers, to provide accommodation for rough sleepers with no recourse to public funds. Section 185 of the Housing Act 1996 renders persons from abroad not eligible for housing assistance. Freedman J’s holdings include that there was power in this case for the authority to provide temporary accommodation pursuant to the emergency power under Section 138 of the Local Government Act 1972 and/or Section 2B of the National Health Service Act 2006, and neither of these routes were a circumvention of Section 185 if the unitary was acting as social services rather than housing authority. However, Section 1 of the Localism Act 2011 could not be relied upon. That would be a circumvention of Section 185.

 

Companies

March 9th, 2021 by James Goudie KC in Capital Finance and Companies

The Duomatic principle, that anything a company’s members could do by formal resolution they could also do informally if they all assented to it, does not apply where the transaction would be ultra vires: Satyam Enterprises Ltd v Burton (2021) EWCA Civ 287.

 

Procurement

March 4th, 2021 by James Goudie KC in Decision making and Contracts

See Bechtel Ltd v High Speed (HS 2) Ltd (2021) EWHC 448 (TCC) on judicial oversight of procurement and challenges to the outcome of procurement challenges: paras 18-28; confidentiality in litigation concerned with procurement challenges: paras 31-39; evidence from claimant witnesses: paras 135-139; manifest error: paras 256/257; transparency, keeping records, equality of treatment, giving of reasons, proportionality: paras 79, 274-277, 281-333; limitation: paras 339/340; abnormally low tender: paras 456-468; modifications: paras 482-492; and abandonment: paras 506-508.

 

Footpaths

February 25th, 2021 by James Goudie KC in Environment, Highways and Leisure

In Open Spaces Society v SoS (2021) EWCA Civ 241 the Court of Appeal held that, in deciding whether it is expedient to confirm a public path diversion order, in exercise of the power conferred by Section 119(6) of the Highways Act 1980, the decision-maker MUST have regard to the matters specified in paras (a) to (c) and any material provision of a rights of way improvement plan, AND MAY have regard to ANY OTHER RELEVANT MATTER, including, when appropriate, the owner or occupier of the land over which the path currently passes, or the WIDER PUBLIC INTEREST.

 

Companies

February 25th, 2021 by James Goudie KC in Capital Finance and Companies

In Byers v Chen (2021) UKPC 4 the Privy Council affirmed, at paras 64/65, the Duomatic principle, that, where it can be shown that all shareholders who have a right to attend and vote at a general meeting of the company assent to some matter which a general meeting of the company could carry into effect, that assent is as binding as a resolution in general meeting would be. The Privy Council also affirmed, at paras 68/69, that a director who has given the company proper notice of his or her resignation is not entitled to withdraw that notice, save with the consent of the company or possibly the ultimate beneficial owner.

 

Misrepresentation

February 22nd, 2021 by James Goudie KC in Decision making and Contracts

In Leeds City Council v Barclays Bank (2021) EWHC 363 (Comm) claims for rescission of loans were struck out. The claims arose out of the LIBOR rigging affair of 2012. They were struck out because the claimant local authorities could not show that they relied on the representations which they allege were made. Cockerill J ruled, at paras 65 and 102, that proof of “understanding” of the representation in the sense of which complaint is later made, is a constituent part of a misrepresentation claim.

 

Gig Economy

February 22nd, 2021 by James Goudie KC in Best Value

In Uber v Aslam (2021) UKSC 5 the Supreme Court has held that Uber drivers are not self-employed contractors, notwithstanding contractual documentation that they are. Rather, as a matter of purposive statutory interpretation, and having regard to what is expected and happens in practice, they are “workers”, for the purposes of employment protection, working time and the national minimum wage.

 

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