Legal News

R (on the application of Oceana) v Upper Tribunal ( Immigration and Asylum Chamber) [2023] EWHC 791 ( Admin) What are the practical implications of this case? Given the thorough consultation and investigation undertaken by the Independent Review of Administrative Law, it would have been unexpected if the Administrative Court had concluded that the meticulously framed ouster provisions were incapable of achieving their narrowly targeted aim. This ruling confirms it is exceptionally difficult to maintain that they are ineffective. It further underlines that the general jurisdictional gateway in TCEA 2007, s 11(4)—showing the UT acted ‘in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice’—poses a ‘substantial hurdle’ (at para [33]). Practitioners should note that this hurdle is usually cleared only where there is ‘a failure in process which is so grave as to rob the process of any...

Re P (a child) (fair hearing) [2023] EWCA Civ 215, [2023] All ER ( D) 11 ( Mar) What are the practical implications of this case? Practitioners should acquaint themselves with the principles articulated by Lord Justice Peter Jackson from para [42] onwards of this judgment, where the Court of Appeal set out how adjournment requests should be approached to ensure proceedings are ‘fair’. Those principles are liable to apply across proceedings under the Children Act 1989 ( Ch A 1989) and the Adoption and Children Act 2002. Where an adjournment is sought, para [46] confirms that fairness is the essential touchstone, and the weight to assign to any given proposition or other pertinent consideration is for the court’s judgement in the individual case. The propositions gathered at para [45] provide a non-exhaustive, yet very useful, suite of factors that a court may weigh when...

R (on the application of Edward Blacker) v Chelmsford City Council [2023] EWCA Civ 25 What are the practical implications of this case? The judgment sets out no fresh propositions; instead, it reiterates settled points relevant to a local planning authority’s handling of a planning application: An application decision only takes effect once it has been communicated to the applicant, not when the Planning Committee merely resolves to grant or refuse. Up to the point of formal notification, the Committee may alter its view at any stage, even where there has been no material change in circumstances. An earlier grant or refusal for the same site can amount to a material consideration on a later application, underscoring the need for consistency in similar cases. That consistency principle is not engaged, however, where no substantive earlier decision existed—as here, where a majority vote at an initial...

What are the practical implications of this case? This judgment carries practical consequences for all appellants engaging with the Planning Inspectorate. In particular, appeals that APOs commonly handle through the written representations’ procedure—namely householder and advertising appeals—are likely to be impacted and/or adjusted to align with the High Court’s observations on the limited role they ought to play. In addition, the ruling is expected to have broader effects on the Planning Inspectorate’s implementation of the Rosewell Review... What was the background? The claimant sought express consent for an advertisement in Shoreditch, London, which the local planning authority, the London Borough of Hackney, refused. The claimant then appealed to the Planning Inspectorate. During the appeal, they were informed that the matter would be determined via the written representations’ procedure and that a site visit would be undertaken by an inspector or his/her...

The United Kingdom General Data Protection Regulation, Retained Regulation ( EU) 2016/679, and the Freedom of Information Act 2000 ( FIA 2000) oblige public and private bodies to reply to subject access requests within one to three months when people seek details of the personal data those organisations hold about them. Yet, on 28 September 2022, the ICO announced that an investigation had found Virgin Media, the Ministry of Defence, the Home Office, the London Borough of Croydon, Kent Police, the London Borough of Hackney and the London Borough of Lambeth had 'repeatedly failed' to meet this statutory deadline. Following these conclusions, the regulator issued reprimands to all seven organisations and, under the FIA 2000, practice recommendations to two of the London boroughs. The agency added that these bodies have three to six months to make improvements or 'further...

Dee and another v Secretary of State for Levelling Up, Housing and Communities and another [2022] EWHC 2166 ( Admin) What are the practical implications of this case? This ruling underlines that proving an error of law was immaterial, and that the same outcome would have followed absent the mistake, is a significant hurdle. Although the Simplex defence is driven by the facts and turns on the language of the decision when read in the round, the requirement to establish that the result ‘would have’ been the same renders it an onerous task for any defendant. The judgment also illustrates that the challenge intensifies where the legal error is a failure by the decision-maker to have regard to a matter in exercising planning judgement, because the court will be reluctant to speculate on how consideration of a particular factor might have influenced that planning...

What are the practical implications of this case? Braceurself Ltd v NHS England [2022] EWHC 1532 ( TCC) underlines key lessons for both sides of a procurement dispute. For advisers to disappointed tenderers, it indicates that pursuing a broad challenge on multiple grounds can be a sound strategy where even a small upward tweak to scoring might have decisively changed the result. For contracting authorities, it is a sobering reminder that, even in a process that is otherwise well organised and meticulously planned (as acknowledged by Mr Nissen QC), evaluators must accurately grasp the substance of a bidder’s reply and must not allow irrelevant factors to influence the mark awarded. Further, Mr Nissen QC confirmed the correct judicial approach when claims of manifest error are advanced against an authority. Following the reasoning of Mr Justice Fraser in Bechtel Ltd v High Speed Two ( HS2) Ltd...

Thurrock Council v Stokes [2022] EWHC 1998 ( QB) What are the practical implications of this case? At paras [369]–[410], Nicklin J delivers a thorough survey of the authorities on injunctions under TCPA 1990, s 187B, providing a useful point of reference for practitioners. The judgment also explains the court’s methodology when considering such relief. Section 187B(2) empowers the court to grant whatever injunction it considers appropriate to restrain breaches of planning control. At [415], Nicklin J stressed that no injunction should be made against an individual unless the evidence justifies it and the court is satisfied the order is both necessary and proportionate. Although this may seem self-evident, a court will not make a wide, restrictive order without proof that it is required and balanced. In this case, Thurrock failed to establish either requirement. At [424], Nicklin J remarked that the best route to a...

The question Take, for instance, an impugned decision made on 1 January. If you file on 1 April 2022, are you in time, or do you need to file by 31 March? The short answer It is very likely that the ‘corresponding date rule’ applies, so a JR of a decision taken on 1 January must be lodged on or before 1 April. The long answer What is the ‘corresponding date rule’? Put briefly, the rule treats “three months after” 1 January as 1 April. Lord Diplock explained this in Dodds v Walker [1981] 1 WLR 1027, [1981] 2 All ER 609. The case concerned the time limit in section 29(3) of the Landlord and Tenant Act 1954 ( LTA 1954), which required an application to be made “not less than two nor more than four months after the giving of the landlord’s notice”. The landlord’s notice was given on 30...

Background The UKIPO’s first call for evidence on AI and IP, running from 7 September to 30 November 2020, aimed to gather answers to numerous questions across patents, copyright, trade marks, designs and trade secrets. Feedback to that exercise highlighted concerns about the balance in the copyright regime between safeguarding human-created works and those produced by AI. Regarding patents, participants flagged potential obstacles to innovation as reliance on AI systems grows. For further details on that process, see News Analysis: Call for views on AI and IP—the UK government response. Building on those findings, the UKIPO opened an additional consultation to probe the key matters in greater depth. The resulting government response was issued on 28 June 2022 (see: LNB News 28/06/2022 48), and is considered below. Copyright and computer-generated works ( CGWs) The initial question for government was whether creations generated by a...

TV Harrison CIC v Leeds City Council [2022] EWHC 1675 ( Admin) What are the practical implications of this case? First, the ruling underscores the centrality of the development plan, and the obligation to comply with the strict statutory duties to have regard to it under section 70(2) of the Town and Country Planning Act 1990 ( TCPA 1990) and section 38(6) of the Planning and Compulsory Purchase Act 2004 ( PCPA 2004). Allocation of a site for housing does not dispense with the continuing requirement to properly assess all particularly pertinent and applicable development plan policies in the round. Secondly, it confirms that reasons are generally unnecessary separately where members adopt the recommendation contained in an officers’ report, in such circumstances. The judge held there was no duty on the relevant committee to give additional reasons where: a) members accepted the...

Mayor and Burgesses of the Tower Hamlets London Borough Council v Khan [2022] EWCA Civ 831 What are the practical implications of this case? Lease agreements often include provisions enabling landlords to reclaim legal costs incurred ‘in contemplation of’ or ‘incidental to’ forfeiture proceedings. Attempts to recover rent and service charge arrears are frequently brought in forums where costs are generally not recoverable, such as the FTT and the County Court Small Claims Track. Landlords therefore lean on these provisions to assert that costs are contractually recoverable because proceedings to recover rent/service charge arrears were issued ‘in contemplation of’ or ‘incidental to’ prospective forfeiture proceedings. The Court of Appeal’s decision curtails the range of what will be treated as ‘incidental to the preparation and service’ of a section 146 notice, yet gives no guidance on what costs are incurred ‘in...

What are the practical implications of this case? This was a renewed bid for permission to pursue a judicial review of Manchester City Council’s decision to grant planning permission for replacing a car park with a 55‑storey tower including student accommodation. As with all rulings at the permission stage, the judgment does not create a precedent: the court was simply deciding whether any ground met the arguability threshold for the claim to proceed to a substantive hearing. Even so, it raises notable points on deliverability and consultation. Deliverability: the court held that the presence of private rights that may need to be bought out—such as rights of light, a right of way over the development land or, as here, a right to park in the car park—does not render a scheme undeliverable. These are questions of commercial practicality and do not undermine...

R (on the application of Good Law Project Ltd and another) v Prime Minister and another [2022] EWHC 298 ( Admin) Standing addresses who is entitled to initiate a claim in judicial review and, across successive administrations, it has been regarded as ‘ripe for review’ for a considerable period. In 2013, the government issued a consultation on reforming judicial review, proposing a tighter approach to standing that would demand a more immediate and concrete interest in the subject of the challenge. In July 2020, the government convened an independent panel to examine a range of substantive and procedural changes, with standing among the topics considered. After the judgment in GLP and Runnymede Trust, standing is poised to move from a rarely contested or discussed point within judicial review proceedings to one that may often take centre-stage in public interest cases. The ruling is...

R (on the application of Park Lane Homes ( South East) Ltd) v Rother District Council [2022] EWHC 485 ( Admin) What are the practical implications of this case? First, the judgment confirms there is no duty in statute, national policy, or Secretary of State guidance for a neighbourhood development plan to include housing provision or make housing allocations. However, where a draft neighbourhood plan proposes to exclude such provision, care is needed to ensure it does not conflict with the development plan. Secondly, the judgment clarifies that, while procedural fairness may on occasion necessitate further consultation or additional opportunities to make representations, such situations will be uncommon where a detailed statutory regime is in place, as with neighbourhood plans. In general, where the statutory requirements are fulfilled, it will be challenging to rely on procedural unfairness when contesting a...

Ukraine conflict—impact of Russian invasion and sanctions on English law contracts—frustration, illegality, force majeure & MAC Does your agreement contain an illegality, force majeure or material adverse change ( MAC) provision and, if so, has it been engaged? This turns on construction, so the orthodox approach applies—scrutinise the pertinent circumstances and the wording of the provision. What, precisely, is the operative occurrence? It might be a legal development (eg whether making payment would constitute a criminal offence) or a factual situation (routes are blocked, power is unavailable, the plant has been hit). Does that occurrence fall within the clause’s reach, expressly or by necessary implication? Many force majeure provisions enumerate events that qualify. An illegality provision may identify the system of law under which performance must have become unlawful. MAC provisions frequently do not delineate what is covered, relying instead on the plain sense of the...

X London Borough Council v MR (by his litigation friend, the Official Solicitor) and others [2022] EWCOP 1 What are the practical implications of this case? While best interests determinations are always grounded in their specific facts, this decision will interest Court of Protection practitioners because it models a comparative best interests evaluation of end-of-life residence and care options. The judgment underscores that, in welfare proceedings, the court and the parties must look beyond mere preservation or extension of life and physical health, and give proper weight to a person’s quality of life. Here, the court accepted that relocating to a different care home carried ‘a high risk of adverse events including a higher risk of mortality’, especially in the initial months after any move. It also acknowledged that MR’s advanced dementia significantly curtailed his capacity to comprehend religious or cultural customs or...

On 15 December 2021, the government presented to Parliament regulations to implement the proposals set out in the Consultation response: EV Charge points in Residential and Non-residential Buildings (for more information on the proposals, see: Consultation outcome on electric vehicle charge points in buildings published, LNB News 22/11/2021 81). The Regulations, SI 2021/1392, set out the specifics developers and other stakeholders require to comply with the new obligations. In this legal update, we address key questions about the new regulations and their application. When do the Regulations come into force? The Regulations will come into effect on 15 June 2022. What about developments in progress as at 15 June 2022—will they be subject to the new requirements? The Regulations contain transitional provisions. They will not apply in relation to building work where a building notice or an initial notice has been provided to, or full plans have been...

Shah v Barnet London Borough Council [2021] EWHC 2631 ( QB) What are the practical implications of this case? Master Stevens’ judgment provides a clear demonstration of the considerations a court will apply when a defendant seeks to resile from a pre-action admission under CPR 14.1A. Its significance is not confined to personal injury claims. The Master’s thorough survey of the authorities and careful weighing of the factors in CPR PD 14, para 7.2 equips both claimants and defendants to assess the strengths of making or opposing such applications. The decision emphasises that a defendant must come armed with precise, persuasive reasons both for having made the admission and for wishing to withdraw it. The threshold for undoing a pre-action admission is high. Claimants will be reassured by the judge’s concern that attempting to resile after substantial investigation of quantum has been...

R (on the application of Sav Development Ltd) v London Borough of Tower Hamlets [2021] EWHC 3211 ( Admin) What are the practical implications of this case? This judgment illustrates and confirms that: where justified, local policy may diverge from national policy for local authorities, when such a course is contemplated during plan-making, thorough evidence gathering is essential a conflict between policies can only exist where there are two policies there is no inconsistency between a document containing a specific policy on a topic and another that is silent on that topic this approach applies to both section 38(5) of the Planning and Compulsory Purchase Act 2004 ( PCPA 2004) and the Town and Country Planning ( Local Planning) ( England) Regulations 2012, SI 2012/767, reg 8(3) planning policy should be read on its face, unless there is a...