A new Regulation 24K has been added to the Local Authorities (Capital Finance and Accounting)(Wales) Regulations 2003, providing that a Welsh local authority must not charge an amount in its revenue account to reflect any fluctuation in the fair value of an investment in a pooled investment fund. Rather, such amounts must be recorded in a separate account, established, and used solely, for that purpose. This corresponds with Regulation 30K of the English 2003 Regulations, inserted in 2018.
Pooled Investments and Accounting
February 4th, 2020 by James Goudie KC in Capital Finance and Companies
Dishonest Assistance
February 4th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationOn (1) what is required in order to establish a claim for dishonest assistance, (2) whether to order a retrial, and (3) the limitations on the ability of an appellate court to interfere with a discretionary decision of a lower court, see MAGNER v RBS (2020) UKPC 5.
Delay in Bringing Homelessness Appeal
February 3rd, 2020 by James Goudie KC in HousingIn Ahmed v Tower Hamlets LBC (2020) EWCA Civ 51 the Court of Appeal considered the approach to be adopted towards the assessment of a “good reason” for delay in bringing an appeal under Section 204 of the Housing Act 1996 against an adverse review decision under the homelessness provisions of that Act, in circumstances where the reason put forward for the delay is that the applicant was unrepresented and was seeking legal aid. The time limit for bringing such an appeal is 21 days, and that (paragraph 35) remains the “basic rule”. The Court of Appeal said that (1) the “good reason” requirement provides a straightforward statutory test to which no gloss is or should be applied: paragraph 24; (2) the Mitchell/Denton principles should not be applied to the assessment: paragraph 29; (3) difficulties in obtaining legal aid and representation should be taken into account and given appropriate weight: paragraph 34; (4) when these are put forward as a reason for non-compliance with the time limit, the circumstances will need to be examined with care: paragraph 35; and (5) even if the Court is satisfied as to “good reason” that simply opens up a discretion to allow an appeal to be brought out of time, taking account of all relevant considerations, including the position of the local authority: ibid.
Consultation
January 30th, 2020 by James Goudie KC in Decision making and ContractsThere was a duty to consult only on options which represented genuine, i.e. realistic and viable, proposals for change. The status quo, referred to in the public documents produced at different stages of the consultation process, a status quo of which the local public were well aware, did not have to be part of the consultation. If it were felt that insufficient information had been made available then more could have been requested. So held by the Court of Appeal in R (Nettleship) v NHS South Tyneside CCG (2020) EWCA Civ 46 at paragraphs 59/60 and 63-65 inclusive.
Legal Certainty and Limitation
January 30th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationIn FMX v HRMC (2020) UK SC 1 the Supreme Court considered the fundamental principle of legal certainty of general application in EU law. This includes that where national legislative provisions appear to allow legal action without any time limit, then the principle of legal certainty requires it to be done within a reasonable time (paragraph 45, per Lord Briggs).
Restitution/Compromise Agreement/Mistake
January 30th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationIn Elston v King (2020) EWHC 55 (Ch) the Court considered the situation where a party seeks to set aside a compromise agreement on grounds of common mistake where the compromise was based on a view of the law that was later overturned. Marcus Smith J said:-
Legal Advice Privilege
January 30th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationIn Civil Aviation Authority v R (ota Jet2.Com Ltd) and the Law Society (2020) EWCA 35 the Court of Appeal considered when Legal Advice Privilege (“LAP”) is attracted, and affirmed that a claim for LAP requires the proponent of LAP to show that the relevant document, or communication, was created for the “dominant Purpose” (as opposed to one purpose) of obtaining legal advice. Hickinbottom LJ with whom Patten and Peter Jackson LJJ agreed, considered authorities including Three Rivers (No. 5) and Eurasian, and said:-
Persons Unknown
January 24th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationThe Court of Appeal, in Cuadrilla Bowland Ltd v Persons Unknown (2020) EWCA Civ 9, held, doubting, at paragraphs 46-51 inclusive and 66-69 inclusive, Boyd v Ineos Upstream Ltd (2019) EWCA Civ 515, and in the context of non-violent protest, that the fact that an injunction against ‘persons unknown’ referred to the requirement for an ‘intention’ to impede lawful activities did not render the injunction insufficiently clear or certain to be enforceable by committal to prison following a breach. “Intention” did not have any special legal meaning and was not difficult for a member of the public to understand. On an appeal by persons unknown against committal to prison for contempt of court for breach of an injunction to prevent trespass on the respondents’ land and unlawful interference with their rights. The respondents owned land on which they engaged in lawful “fracking”. The appellants were environmental protesters involved in protests on and near the respondents’ site. Read more »
Suspension of Contract
January 23rd, 2020 by James Goudie KC in Decision making and ContractsIn Alstom v Network Rail (2019) EWHC 3585 (TCC) O’Farrell J lifted (paragraph 76) an automatic suspension which arose upon a procurement challenge, where there was a serious issue to be tried (paragraph 30). Damages would be an adequate remedy for the Claimant (paragraphs 31-45 inclusive), but not for the Defendant (paragraphs 46-49 inclusive). Moreover, the balance of convenience test (paragraph 51) was in favour of lifting the suspension, having regard to the public interest (paragraphs 54-71 inclusive). Delay to the Project caused by continuing the suspension would (1) delay the anticipated benefits of the planned works, (2) result in abortive costs, and (3) jeopardise the business case and funding for the Project (paragraph 59). There was an urgent need to replace degraded assets (paragraph 67). Alstom’s point about the public interest in Network Rail complying with its legal obligations in respect of public procurement was a neutral one (paragraph 70). It had to be balanced against the public interest in Network Rail’s entitlement to proceed with the successful tenderer following a lawful and fair procurement exercise. At the suspension stage the Court was not in a position to judge which case will prevail. There was a strong public interest in proceeding with the works as soon as possible (paragraph 71). Nor would a partial lifting of the automatic suspension be appropriate (paragraph 75). The strong public interest in lifting the automatic suspension extended to the full Project.
Gypsy and Traveller Community
January 22nd, 2020 by James Goudie KC in Judicial Control, Liability and LitigationIn Bromley v Persons Unknown (2020) EWCA Civ 12 the Court of Appeal set out relevant law in relation to (1) Quia Timet Injunctions Against Persons Unknown (paragraphs 29-35 inclusive), (2) Quia Timet Injunctions to Prevent Likely Trespass (paragraphs 36-39 inclusive), (3) ECHR Article 8 and the Gypsy and Traveller Community (paragraphs 40-48 inclusive), and (4)(i) Relevant Statutes, including the Equality Act 2010 and the PSED (paragraphs 49-53 inclusive), (ii) Guidance in relation to unauthorised emcampments (paragraphs 54-56 inclusive), and (iii) the United Nations Convention on the Rights of the Child (paragraphs 57-58). The Court of Appeal next analysed the Appeal (paragraphs 59-98 inclusive)., especially in relation to proportionality, and then gave “Wider Guidance” as to how local authorities should act (paragraphs 99-109 inclusive), in particular (paragraph 104) the principal considerations which should be at the forefront of a local authority’s mind when considering whether a Quia Timet Injunction should be sought against Persons Unknown, and where the proposed Injunction is directed towards the Gypsy and Traveller Community.