Future Loss

March 12th, 2019 by James Goudie KC in Judicial Control, Liability and Litigation

In Qu v Landis & Gyr Ltd, (2019) UKEAT/0016/19/0803, a case about remedy for disability discrimination, and the difficult exercise of assessing what is likely to have happened absent a discriminatory dismissal, Simler J said as to the approach to the question of assessing future loss (emphasis added):-

“28.    The authorities show that it is a rare case where it is appropriate for a Tribunal to assess compensation over a Claimant’s career lifetime, as the Claimant invited the Employment Tribunal to do. The usual approach is to assess loss up to a point where a Tribunal is satisfied, having regard to all the uncertainties and vagaries of life, that the individual is likely to get an equivalent job. The speculative nature of the exercise means that it is possible that the individual will in fact get an equivalent job sooner or might be unlucky and take longer to do so. Thus, the Tribunal’s prediction will not necessarily be right, but those outcomes are inevitably factored into its assessment.  Since the calculation of compensation for future loss is both speculative and predictive, there is no certainty about what will happen, but rather a range of possibilities and chances of different things occurring. The assessment is not a question of fact but a question of carrying out an assessment on the basis of the Tribunal’s best estimate about the future. Read more »

 

Ratification

March 12th, 2019 by James Goudie KC in Decision making and Contracts

Causwell v General Legal Council (2019) UKPC 9 concerns whether disciplinary proceedings commenced by a person purporting to do so as agent for the complainant, but without the complainant’s authority, are capable of being made good by ratification by the complainant, or whether they are a complete nullity incapable of ratification. The question turns upon the principles of the law of agency relating to ratification and the true construction of relevant legislation. Read more »

 

Elected Representatives

March 12th, 2019 by James Goudie KC in Elections and Bylaws

Currently all controllers for the purposes of the Data Protection Act 2018 (“DPA 2018”) are required to provide certain information to the Information Commissioner’s Office (“the ICO”) and pay a charge, unless a relevant exemption applies. There are a number of exemptions from paying the charges for certain types of data controller and processing. The exemptions are intended to form part of a fair and flexible framework of paying charges to the ICO, and provide for scenarios where payment of a charge would not be appropriate, for example because payment of the charge would give rise to significant negative impact. Read more »

 

Bias

March 11th, 2019 by James Goudie KC in Decision making and Contracts

A Professional Conduct Panel (“the PCP”) of the Teaching Regulation Agency (“the TRA”) conducted a hearing to consider events and whether they required consideration by the Secretary of State for Education (“the SoS”) of a Prohibition Order preventing a teacher from pursuing his career. The PCP recommended such prohibition.  The SoS followed that recommendation.  It was his decision to make a Prohibition Order.

In Lone v SoS (2019) EWHC 531 (Admin) the teacher appealed. One of his grounds of appeal was alleged procedural irregularity, not on the part of the PCP or of the SoS, but rather on the basis that the Chief Executive of the TRA (“the CEO”) was acting as a judge in his own cause, and was automatically disqualified, in accordance with the Pinochet case, or that his position created an appearance of bias such as to vitiate the decision.  This ground failed. Read more »

 

Avoidance Schemes

March 8th, 2019 by James Goudie KC in Council Tax and Rates

In Rossendale BC v Hurstwood Properties and Wigan Council v Property Alliance Group (2019) EWCA Civ 364 actions by local authorities seeking to recover National Non-Domestic Rates from property developers in respect of unoccupied hereditaments were struck out where the developers had set up schemes to avoid the payments involving transferring leases of the properties to special purpose vehicle companies.  The Ramsey principle of purposive interpretation of the statutory scheme did not apply and there was no reason to pierce the corporate veil.

These appeals concerned two schemes. Both schemes involved the grant of leases of properties to SPVS without assets or liabilities which, as part of the scheme in question, were then placed in voluntary liquidation or were allowed to be struck off the register of companies as dormant companies and thus dissolved. Read more »

 

Rejection of a tenderer’s bid

March 6th, 2019 by James Goudie KC in Decision making and Contracts

In Cases T-439/17 and T-450/17, Yellow Window v EIGE and Eurosupport v EIGE, the EU General Court gave Judgment on 5 March 2019 in relation to a tender procedure for the provision of a public service.  The cases arose out of the obligation to state reasons for the rejection of tenderers’ bids. The Court reiterated that the duty to state reasons is an “essential” procedural requirement.  It is distinct from the question whether the grounds given are correct.  The Court said:-

“… the obligation to state reasons laid down in Article 296 TFEU presupposes that the reference to the strengths and weaknesses of a tender enables the tenderer concerned to understand the marks awarded in the light of the criteria and sub-criteria of the specifications … A correlation must therefore exist between comments identifying strengths and weaknesses, on the one hand, and the marks awarded in relation to those criteria and sub-criteria, on the other hand. Moreover, the statement of reasons must show clearly and unequivocally the reasoning of the author of the act, in such a way as to allow (i) interested parties to know the justifications for the measure taken in order to assert their rights and (ii) to enable the Court to exercise its power of review … More specifically, Article 113(2) of the Financial Regulation requires the contracting authority to provide the tenderer with the real reasons for the rejection of its tender. A statement of reasons which does not identify the true basis of the decision rejecting a tender and which does not faithfully reflect the manner in which the rejected tender was assessed is not transparent and does not satisfy the obligation to state reasons laid down by the latter provision …

 It follows from the foregoing that, failing a justification which is neither consistent nor unequivocal nor transparent, the mark awarded to a tender on the basis of which it will be classified must, as a matter of principle, be a reflection of the strengths and weaknesses identified by the evaluators in their comments.”

 

Local Authority Investments

March 4th, 2019 by James Goudie KC in Capital Finance and Companies

The Local Authorities (Capital Finance and Accounting) (England) (Amendment) Regulations 2019, S.I. 2019/396, make amendments to the Local Authorities (Capital Finance and Accounting) (England) Regulations 2003 (S.I. 2003/3146) (“the 2003 Regulations”). The technical amendments define the investments that shall not be treated as capital expenditure within local authority accounts. They also amend the categories of local authority investments in relation to which fluctuations in fair value are subject to specific accounting treatment.

Under the 2003 Regulations, local authorities must follow CIPFA’s Code of Practice on Local Authority Accounting in the United Kingdom, as amended or reissued in every financial year. The Government can modify local authorities’ duties to follow the proper practices set out in the Code on Local Authority Accounting, by including specific provisions in the 2003 Regulations. It also has a specific power to provide through regulations which expenditure of local authorities is, or is not, accounted for as capital expenditure. The 2003 Regulations make provision for capital finance and accounts under Part 1 of the Local Government Act 2003 (“the 2003 Act”). Regulation 25 of the 2003 Regulations provide for expenditure which is, and which is not, to be treated as capital expenditure for the purposes of Chapter 1 of Part 1 of the 2003 Act. Since 2004, Regulation 25 has excluded local authority investments in money market funds from treatment as capital expenditure in local authority accounts. Regulation 30K of the 2003 Regulations provides for specific accounting treatment for fair value gains and losses of local authority investments in pooled investment funds, including money market funds.

 

 

Legitimate Expectation

March 1st, 2019 by James Goudie KC in Decision making and Contracts

In R (RD) v Worcestershire County Council (2019) EWHC 449 (Admin), Nicklin J, dealt with the law on legitimate expectation from paragraph 75 of his Judgment.  He found that frustration of a legitimate expectation was not lawful.  He said:-

Paragraph 77: It may be difficult to decide whether a promise should be considered as inducing a procedural legitimate expectation or a substantive legitimate expectation;

Ibid:  In both cases, if the legitimate expectation is established, the Court will require the promise to be fulfilled, unless there is an “overriding reason” to resile from it;

Ibid: The question is whether the frustration of the expectation is “so unfair that it amounts to an abuse of power”; Read more »

 

Defective Premises

February 27th, 2019 by James Goudie KC in Judicial Control, Liability and Litigation

In Rogerson v Bolsover District Council (2019) EWCA Civ 226 the appellant was the tenant of a council house.  She suffered injury as the result of an accident.  The issue was whether the Council could be liable under Section 4 of the Defective Premises Act 1972.  The relevant defect would have been discovered if the Council had implemented a system of regular inspection.  Did the Council as landlord have a duty to inspect? Read more »

 

Bias

February 27th, 2019 by James Goudie KC in Decision making and Contracts

In R (United Cabbies Group (London) Ltd v Westminster Magistrates Court (2019) EWHC 409 (Admin) a Divisional Court reiterated principles relating to two categories of bias: presumed bias; and apparent bias. The Court said:-

  1. The applicable principles are not in doubt.

Presumed Bias

i) Where a judge has a direct pecuniary or proprietary interest in the outcome of a case, he or she is automatically disqualified, whether or not that interest gives rise to a reasonable apprehension of bias …

ii) The rationale of the rule is that “a man cannot be a judge in his own cause”. That being so, the rationale disqualifying a judge applies just as much if the judge’s decision will lead to the promotion of a cause in which the judge is involved together with one of the parties …

Read more »

 

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