In 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).
Legal Certainty and Limitation
January 30th, 2020 by James Goudie KC in Judicial Control, Liability and Litigation
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.
State Aid
January 20th, 2020 by James Goudie KC in Capital Finance and CompaniesIn Case T-257/18, Iberpotash S.A. v European Commission, CJEU General Court Judgment on 16 January 2020, the first issue was whether there was a transfer of State resources. The Court said:-
ECHR Articles 6, 14 and 1/1/PSED
January 20th, 2020 by James Goudie KC in Human Rights and Public Sector Equality DutyIn R (BMA) v SoS for Health and Social Care (2020) EWHC 64 (Admin), Andrews J held, para 151, that the BMA was entitled to declaratory relief and a quashing order in respect of 2019 Pension Regulations which purported to enable the SoS to make a suspension decision in respect of pension benefits after criminal charge, but before any conviction. The BMA established to the Judge’s satisfaction that (1) the power to suspend pension benefits in the form in which it was introduced by the 2019 Regulations was a breach of ECHR Article 14, in conjunction with Article 1 of Protocol 1; (2) that this was compounded by an absence of appropriate procedural safeguards, as required both by ECHR Article 6 and by the common law principles of natural justice; (3) that although the Article 6 deficiencies might have been capable of cure had they stood alone, the Court was unable to use the wide powers, given to the Court under Section 3(1) of the Human Rights Act 1998, to interpret the legislation in a manner which would render it compatible with the ECHR; and (4) the SoS also failed to comply with the PSED, under Section 149 of the Equality Act 2010, when making the 2019 Regulations, which was an entirely independent ground upon which the decision to introduce the power was unlawful.
Capacity to Bring Claim
January 16th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationIn Aireborough Neighbourhood Development Forum v Leeds City Council (2020) EWHC 45 (Admin) there was a preliminary issue whether the Forum, an unincorporated association, had the legal capacity to make an application to make a statutory challenge to the LPA’s adoption of a Development Plan Document. Lieven J held that it did have such capacity. She addressed conflicting decisions on whether an unincorporated association can bring a judicial review claim. Lieven J held that an unincorporated association does have capacity to bring both a judicial review and a statutory challenge. She said that there is a critical distinction in this respect between private and public law litigation. In public law, the legal capacity of the claimant is not a critical component of the Court having jurisdiction.
Public Open Space
January 14th, 2020 by James Goudie KC in Land, Goods and ServicesIn R (Day) v Shropshire Council and Shrewsbury Town Council (2019) EWHC 3539 (Admin) Lang J held that land (1) was open space, distinguishing Whitstable Society v Canterbury City Council (2017) EWHC 254 (Admin), (2) was subject to a statutory trust under the Public Health Act 1875 and the Open Spaces Act 1906, following R (Friends of Finsbury Park) v Haringey LBC (2018) P.T.S.R. 644, and (3) had not been validly appropriated to any other use. The requirement therefore applied under Section 123(2A) of the Local Government Act 1972 (“LGA 1972”) to advertise a proposed disposal of any part of the land and to consider objections. This the Town Council had failed to do. However, the public rights could not be enforced against a buyer. The legal effect of a disposal is governed by LGA 1972, Sections 128 and 131, not by the private law of trusts. Lang J said, at paragraph 116:-