Bias

July 9th, 2020 by James Goudie KC in Decision making and Contracts

Apparent bias exists where, in context, the hypothetical “ fair-minded” and “ informed” observer, having considered the facts, would conclude that there was a “real possibility” that the tribunal was biased, for example by pre-judgment. In R (Roberts) v Leicester Crown Court (2020) EWHC 1783 ( Admin) it is held, para 48, that does not rule out “ probing the issues from the outset”. On the contrary : “ Early identification of the real issue in a case is very helpful to any tribunal”. Moreover, para 52, it is often helpful to indicate when a particular issue is troubling the tribunal.

However, para 53, the tribunal’s insistence that it has kept an open mind is not itself of much weight.

 

Judicial Review

July 9th, 2020 by James Goudie KC in Judicial Control, Liability and Litigation

 

From time to time the basic position in relation to Judicial Review requires to be restated. R (Dolan) v SoS (2020) EWHC 1786 (Admin), was such an occasion. This was a challenge to Coronavirus Restrictions Regulations pursuant to the Public Health ( Control of Diseases) Act 1984.

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State Aid during Covid-19

July 8th, 2020 by James Goudie KC in Capital Finance and Companies

Brexit notwithstanding, the UK remains subject to the EU State Aid regime administered by the EU Commission. On 19 March 2020 the Commission adopted a “ Temporary Framework “ for State Aid measures to support the economy during Covid-19 (the TF). The TF was amended on 3 April and 8 May 2020. A feature of the TF was that aid was not available for undertakings already in financial difficulty by 31 December 2019.

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Invalid Notice

July 8th, 2020 by James Goudie KC in Housing

An assured tenancy cannot generally be brought to an end except through a Court Order that is subject to the landlord having served a Notice in accordance with Section 8 of the Housing Act 1988. It is held in Jarvis v Evans (2020) EWCA Civ 854 that a Section 8 Notice in breach of the Housing (Wales) Act 2014 is invalid. The Court of Appeal observes that if notices served in breach of the 2014 Act licensing regime were nonetheless effective tenants would be reliant on local authorities for enforcement of that regime, whereas local authorities have many demands on limited resources. The legislative intent was that tenants should not be left dependent on local authorities : paras 42(iv) and 45/46.

 

Disclosure

July 7th, 2020 by James Goudie KC in Judicial Control, Liability and Litigation

In R (Charles) v SoS for FCO (2020) EWHC 1620 (Admin) a Divisional Court restated that in Judicial Review proceedings (1) standard disclosure is not automatic, (2) the right of inspection of documents referred to in a witness statement is not applicable, (3) a confirmation by a party that it has disclosed all relevant documents is conclusive unless there are grounds for supposing it to be mistaken, and (4) disclosure is of what is necessary for the just and fair determination of the issues.

Judicial review is not like other civil litigation as regards disclosure : para 20. However, there is a “duty of candour” on the parties : para 21.

 

Mental Capacity

July 7th, 2020 by James Goudie KC in Social Care

In Tower Hamlets LBC v PB (2020) EWCOP 34 Hayden J has applied the presumption of capacity in the Mental Capacity Act 2005 and highlighted that a person is not to be treated as unable to make a decision merely because he makes an unwise decision. The Judge gave guidance on assessing the capacity of those who are alcohol dependent to decide where they live and what type of care they receive, and re-stated the relevant principles.

 

Aarhus

July 6th, 2020 by James Goudie KC in Environment, Highways and Leisure

In Case C-826/18 from the Netherlands Advocate General Bobek’s Opinion dated 2 July 2020 says that all of (1) Article 6 of the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters, (2) Article 6 of Directive 2011/92/EU, as amended, on the assessment of environmental effects, and (3) Article 24 of Directive 2010/75/EU on integrated pollution prevention and control, confer full participation rights ONLY on “the public concerned”, NOT on the public at large.

 

Public Spaces Protection

July 6th, 2020 by James Goudie KC in Local Authority Powers

In Wycombe District Council v Snowball (2020) EWHC 1656 (Admin) a Public Spaces Protection Order (PSPO), made under Section 59 of the Anti-Social Behaviour etc Act 2014, was in force. The PSPO prohibited consumption of alcohol, or having an open container for alcohol, in a restricted area. The respondent was in a restricted area. He was holding an open can. It was labelled as lager. He was seen drinking from it. He refused to surrender the can. He was issued with a Fixed Penalty Notice (FPN) under Section 68 of the Act.

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Investigation

June 22nd, 2020 by James Goudie KC in Standards

For the refusal of an injunction to stop the investigation of complaints against a councillor about his conduct, see Bishop v Public Services Ombudsman for Wales (2020) EWHC 1503 (Admin). The importance of expression in the political sphere is reiterated at para 13.

 

Judicial Review

June 17th, 2020 by James Goudie KC in Judicial Control, Liability and Litigation

“ Rolling” JR may be appropriate in some cases. JR does not relate exclusively to specific decisions with specific dates. It may also relate to continuing conduct, when there is a “ moving picture”, as in the adult social care case of R (Raja) v Redbridge LBC (2020) EWHC 1456 ( Admin).

 

 

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