The validity of a temporary Experimental Traffic Order, restricting access through a London street to zero omission vehicles, was upheld Tomkins v City of London (2020) EWHC 3357 (Admin). It was found that there had been no duty to carry out a non-statutory consultation. There was no legitimate expectation to that effect. However, declarations were granted in relation to failings to comply with procedural requirements and statutory requirements in relation to statement of reasons.
Misconduct
December 4th, 2020 by James Goudie KC in StandardsA 118 page Law Commission Report, No. 397, with 22 Recommendations, recommends substantive and procedural reform of the common law offence of misconduct in public office, which operates in parallel with the tort of misfeasance in public office. The Report proposes two replacement offences, not to be applicable to the provision of education and health services. They are “ corruption in public office”, with a test of what a reasonable person will think is “ seriously improper”; and “ breach of duty in public office”, to prevent death or serious injury. The Report also recommends a statutory list, to be capable of amendment by SI, of positions that constitute “ public office”, to which a functional test would be applied.
Liability for Accident in Public Park
December 4th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationIn Lewis v Wandsworth LBC (2020) EWHC 3205 (QB) it is held that the local authority had been under no legal duty to warn those using a path in a public park that a game of cricket with a hard ball was in progress and that the boundary of the cricket pitch was alongside the path. Bolton v Stone (1951) AC 850 was considered. Reasonable foreseeability of an accident is not sufficient to found liability. The Court has to consider not only the potential seriousness of an accident but also the chances of an accident happening and the measures which could be taken to minimise or avoid an accident.
Consultation
December 3rd, 2020 by James Goudie KC in Decision making and ContractsIn R ( MP ) v SoS for Health and Social Care (2020) EWCA Civ 1634, dismissing an appeal from Lewis J, as he then was, the Court of Appeal observed :-
PSED
December 2nd, 2020 by James Goudie KC in Human Rights and Public Sector Equality DutyThe nature of the PSED duty to have regard is informed by the particular function being exercised. See ZK v Redbridge LBC (2020);EWCA Civ 1597 at paras 82-84. In any case where a public authority’s functions under legislation are expressly directed at the needs of a protected group it may be/unnecessary to refer to the PSED, or to infer from an omission to do so a failure to have regard to that duty.
Judicial Review
December 1st, 2020 by James Goudie KC in Judicial Control, Liability and LitigationThere is increasing concern about the need for appropriate procedural rigour in judicial review cases. In R (Dolan) v SoS for Health (2020) EWCA Civ 1605 the Court of Appeal says, at para 117 that procedural rigour is important for justice to be done and for fairness to all concerned.
LHAs Working with RSLs
December 1st, 2020 by James Goudie KC in HousingWPPN 02/20 provides Welsh Government guidance on procurement law for Local Housing Authorities working with Registered Social Landlords to deliver Housing Revenue Account development programmes, with particular reference to the Directive 2014/24/EU and PCR 2015 Regulation 12(7) exemption for cooperation between contracting authorities with respect to public services.
Homelessness
November 30th, 2020 by James Goudie KC in HousingHas a local authority’s main housing duty ceased? Had they made a “ final offer of accommodation” by making a nomination to a housing association? No, says the Court of Appeal in Nikolaeva v Redbridge LBC (2020) EWCA Civ 1586. It might never give rise to the provision of accommodation.
The Court observes that it is essential that review decisions are concise where possible, contain an accurate record of the relevant facts, and are structured in a way which enables the reader easily to follow the conclusions which have been reached and the reasons for those conclusions.