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).

 

 

Houses in Multiple Occupation

June 17th, 2020 by James Goudie KC in Housing

Is a building an HMO? Yes, if the building has been converted into flats, albeit self contained and with no shared amenities, and two conditions are both satisfied : less than two thirds of the flats are owner-occupied; and the conversion work failed to comply, and still does not comply, with the “ appropriate building standards “, under the Building Regulations. So held in Hastings BC v Turner (2020) UKUT 184 (LC), interpreting Sections 254 and 257 of the Housing Act 2004, and allowing the Council’s appeal. There are five separate and alternative tests for determining whether a building is an HMO. One of them is satisfied in the above situation.

 

Compliance with the PSED

June 16th, 2020 by James Goudie KC in Human Rights and Public Sector Equality Duty

Amongst the issues considered by a Divisional Court (Bean LJ and Cavanagh J) in a 55 page Judgment in Adiatu v HMT (2020) EWHC 1554 Admin was, from para 195, the scope of the PSED, including, from para 239, the question, which the Court answered in the affirmative, whether the public authority’s duty is to have regard to the equalities implications of the decision that is actually taken. The Court rules that it does not have to consider the equalities implications of other decisions that might have been taken instead : paras 242-245.

 

Supply Contracts

June 10th, 2020 by James Goudie KC in Decision making and Contracts

Procurement Policy Action Note 04/20 “ Recovery and Transition from Covid-19” sets out guidance on payment by public bodies to their suppliers to ensure service continuity during the coronavirus outbreak. It builds on PPN 02/20.

 

Cycle Lanes

June 10th, 2020 by James Goudie KC in Environment, Highways and Leisure

The Civil Enforcement of Parking Contraventions (England) General (Amendment) Regulations 2020, S.I. 2020/548, further amending S.I. 2007/3483, come into force on 22 June 2020. They give local authorities, with civil parking enforcement powers, pursuant to the Traffic Management Act 2004, power to send penalty charge notices based on approved CCTV evidence through the post to drivers who park or load illegally in mandatory cycle lanes.

 

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