A School’s appeal against the refusal of an interim injunction was dismissed in R ( Governing Body of X ) v OFSTED (2020) EWCA Civ 594. The injunction sought was to restrain OFSTED from publishing a Report. The Report graded the School as inadequate. The Court of Appeal addressed the approach to interim injunctions in public law proceedings.
Ultra Vires
May 7th, 2020 by James Goudie KC in Decision making and ContractsOn the application of the ultra vires doctrine to contracts with public bodies, see SFM v Christ the King College and Isle of Wight Council (2020) EWHC 1118 (Comm). The Judge held that the contract in question was a finance lease rather than an operating lease, I.e. a form of borrowing, and beyond the College’s capacity and ultra vires.
Disclosure
May 6th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationIt is fundamental to disclosure obligations in litigation that it must not be the client who makes the selection of which documents are relevant and disclosable. That is the responsibility of the solicitor.
Policies and Consistency
May 4th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationWhen there is a statutory discretion is there a requirement to have and publish a policy on the exercise of that discretion? No, says the Northern Ireland Court of Appeal in the context of the discretion of the Secretary of State for Northern Ireland, under the Northern Ireland Act 1998, implementing the Belfast Agreement, to hold a border poll : Application by Raymond McCord for Judicial Review (2020) NICA 23. The case is of general interest on policies, on the rule of law, and on general administrative law principles of consistency, equal treatment, transparency and accountability.
Habitats
May 1st, 2020 by James Goudie KC in Planning and EnvironmentalIn Case C-254/19, Friends of the Irish Environment v Irish Planning Board, Advocate-General Kokott has on 30 April 2020 delivered her Opinion in relation to the extension of a development consent for the construction of a liquefied natural gas regasification terminal next to two Special Areas of Conservation. The consent was for 10 years. The works had not started. The extension would be for a further 5 years. The primary question was whether the extension was a plan or project within Article 6 of the Habitats Directive. Yes, says the A-G. Therefore it is subject to an appropriate assessment of the implications for wild flora and fauna.
Remote Hearings
May 1st, 2020 by James Goudie KC in Judicial Control, Liability and LitigationThree Court of Appeal Judgments on one day, from an identically constituted Court, on local authorities and remote coronavirus hearings. L (Adoption) (2020) EWCA Civ 577 on covert sibling tests and ECHR Article 8. A (Children) (2020) EWCA Civ 583 providing general guidance. B (Children) (2020) EWCA Civ 584 on procedural principles.
Registration of Common Land
April 23rd, 2020 by James Goudie KC in Land, Goods and ServicesThe phrase “ the curtilage of a building” in the Commons Act 2006 requires the land in question to form part and parcel of the building to which it is related. The correct question is whether the land falls within the curtilage of the building , not whether the land together with the building fall within, or comprise, a unit devoted to the same or equivalent function or purpose. So held by Holgate J in Hampshire County Council v SoS for DEFRA (2020) EWHC 959 (Admin), especially at paras 127 and 132.
ECHR Article 14
April 22nd, 2020 by James Goudie KC in Human Rights and Public Sector Equality DutyOn objective and reasonable justification for difference in treatment, and in particular whether, fairly balancing the severity of the effects against the importance of the objective, the impact is disproportionate, and when the “ manifestly without reasonable foundation” criterion applies to an issue of justification, see R (Joint Council for the Welfare of Immigrants) v SSHD (2020) EWCA 542, from para 112.