Legal News

Martin and another v Kogan and others [2021] EWHC 24 ( Ch) What are the practical implications of this case? The judgment represents the latest chapter in the parties’ protracted litigation. At the retrial, Mr Justice Meade applied the Court of Appeal’s formulation of joint authorship in Kogan v Martin and others [2019] EWCA Civ 1645. He likewise examined the legal framework for evaluating witness testimony, including the overall approach to the dependability of witnesses’ recollections and the comparative weight to be placed on memory as opposed to contemporaneous records. In that context, he addressed the effect of Gestmin SGPS SA v Credit Suisse ( UK) Ltd [2013] EWHC 3560 ( Comm), [2013] All ER ( D) 191 ( Nov). He further considered how the balance of the remaining evidence should be assessed where a portion of a witness’s account is rejected as untrue. In...

What is the WTO government procurement agreement ( GPA)? The WTO GPA is a voluntary, plurilateral pact that obliges its parties to grant one another access to their respective government contracting and public purchasing markets on a reciprocal basis. Through its EU membership, the UK participated in the WTO GPA; the EU constitutes one of the 20 current participants. The UK has now sought independent accession to the GPA in its own right, and a further 22 jurisdictions hold observer status. Signatories are not free to design procurement systems without constraint; foundational principles are embedded within the Agreement and, indeed, many of these shaped the drafting of the current EU procurement rules. What are the key features of the regime? As noted, the GPA is more than a minimal framework. It comprises the Agreement’s main body together with members’ coverage schedules. While the Agreement...

What are the practical implications of this case? This decision is important for prosecutions about enforcement notices where the charge is that a defendant failed to comply with a notice in circumstances where an Article 4 Direction is in place removing permitted development rights. The court held that a defendant cannot require the prosecution to prove the existence of the relevant Article 4 Direction, because that question concerns the validity of the enforcement notice itself and, under TCPA 1990, s 285, may only be pursued by way of an appeal to the Secretary of State under TCPA 1990, s 174. What was the background? Mr Zahar repainted the outside of his home a dark grey and replaced wooden framed windows with upvc windows. The property was within a conservation area in which permitted development rights for these alterations had been withdrawn by an Article 4...

Nwabueze v University of Law Ltd and others [2020] EWCA Civ 1526 What are the practical implications of this case? As observed at paragraph [4], apart from equal pay, the Eq A 2010 divides jurisdiction into tightly sealed compartments. Claims about discrimination arising in the employment sphere, including matters involving qualifications bodies, fall under Eq A 2010, Part 5 and are within the exclusive jurisdiction of the Employment Tribunal ( ET). By contrast, discrimination connected with education is governed by Eq A 2010, Part 6 and sits within the exclusive jurisdiction of the County Court. The ruling confirms that students, or those applying for admission, who allege discrimination by universities under the Eq A 2010 must commence proceedings in the County Court, not the ET. Where an organisation counts as a university for the purposes of section 91 of the Eq A 2010, that...

Hillingdon Borough Council v Persons Unknown and others [2020] EWHC 2153 ( QB) What are the practical implications of this case? There is a persistent conflict between the workings of the courts and the wish of individuals to advance political and/or environmental causes. That friction lies at the core of the judge’s ruling in this matter. It was plain that the court had to neutrally weigh the fundamental liberties protected by human rights law against the council’s duty and right to safeguard the public from unlawful occupation and from unreasonable nuisance and annoyance on its land. In the end, the judge decided that because protesters could still continue their demonstrations on the land, they did not need to erect a camp or remain overnight, and they should not engage in conduct that creates unreasonable nuisance and annoyance in any manner...

Re C (a child) [2020] EWCA Civ 987, [2020] All ER ( D) 136 ( Jul) What are the practical implications of this case? The case arose when, during a remote hearing that had far exceeded its time estimate, a hard-pressed judge expressed irritation about the mother in what she believed was a private exchange with her associate. As the hearing link had not been closed, the parties unintentionally overheard the remarks. The Court of Appeal had to determine whether those adverse comments signalled a real possibility of bias; while sympathetic to the pressures the judge faced, it concluded that they did. Considerable understanding was extended to the judge, whose off-the-record words were accidentally audible during a break. The backdrop of the worldwide coronavirus ( COVID-19) pandemic is significant. The Court of Appeal recognised that family judges are grappling with...

A local authority v A [2020] EWCOP 38 What are the practical implications of this case? Hayden J confirmed that when a deputy wishes to cease acting, they must make an application to the court. Importantly, the court will not rubber-stamp such applications: the deputy, whether an individual or a body, must convince the court that stepping down accords with the person’s best interests. What was the background? As at May 2020, local authority deputies for property and affairs in England and Wales were acting for 22,775 people, making up around 39% of all deputyships. Over the previous two years, both the headcount of local authority deputies and the number of deputyships managed by local authorities had been steadily rising. The applicant council formulated criteria that led it to pinpoint seven matters in which it no longer wished to continue as deputy. It therefore supported a court...

Dowse and another v City of Bradford Metropolitan District Council [2020] UKUT 202 ( LC) What are the practical implications of this case? The doctrine of adverse possession has long sat awkwardly with the regime of registered land and its mirror principle—the expectation that the register alone should reveal all key details about a parcel, including who owns it. That is why the LRA 2002 dramatically curtailed a squatter’s capacity to acquire title to registered land: the primacy of the title register should, in general, prevail. This decision is important because it gives unequivocal effect to that position. Unless a squatter can demonstrate 12 years’ adverse possession of registered land completed before the LRA 2002 took effect, the registered proprietor holds the upper hand. So long as the statutory process is properly followed, there are only three tightly confined situations in which a...

Remondis Gmb H v Abfallzweckverband Rhein- Mosel- Eifel Case C-429/19 ECLI: EU: C:2020:436 What are the practical implications of this case? The Court of Justice has persisted with a narrow reading of exemptions in the Public Procurement Directive ( Directive 2014/24/ EU) and took a purposive stance when construing a contract said to be exempt. The Court of Justice confirmed the degree of collaboration needed for reliance on the Hamburg exemption, insisting that cooperation must be genuinely set up or carried out to have effect. This maintains a strict view of derogations and emphasises demonstrable, substantive collaboration in practice. To rely on the exemption, contracting authorities should think carefully about how they frame, evidence, and deliver joint strategies and mutual advantages when entering a Hamburg-exempt arrangement. If they neglect this, and cannot show real collaboration in practice, disgruntled private sector operators...

Riverside Truck Rental Ltd v Lancashire County Council— R (on the application of Riverside Truck Rental Ltd) v Lancashire County Council [2020] EWHC 1018 ( TCC) What are the practical implications of this case? The stringent deadlines in public procurement disputes remain a pitfall for those not alert. In the unusual situation where a bidder brings both a Technology and Construction Court claim under the procurement regime and a judicial review, it is crucial to appreciate that the timetabling rules are applied differently across those proceedings. In judicial review, when considering an extension, the court weighs (para [101]): whether there is an objectively reasonable explanation for delay; whether the defendant and/or third parties would suffer prejudice; what the public interest demands. That framework is not mirrored in claims under the PCR 2015. While public interest may feature in judicial review, it plays no part in...

On 29 April 2020, the Fire Safety Bill received its second reading in the House of Commons and was also referred to a Public Bill Committee. The Bill will amend the Regulatory Reform ( Fire Safety) Order 2005, SI 2005/1541, to provide clearer guidance on the duties of the Responsible Person or duty-holder in multi-occupied, residential premises. Currently, under the Fire Safety Order, fire and rescue authorities hold enforcement powers over the shared parts of blocks of flats, for example entrance halls and landings. They do not possess such powers beyond the front doors of flats to act within individual homes, nor do they also have powers concerning the exterior of buildings. The Fire Safety Bill proposes amendments to the scope of the Fire Safety Order to make clear that the responsible person or duty-holder for multi-occupied residential buildings must manage and reduce fire risk relating to the...

Tim Sp A— Direzione e coordinamento Vivendi SA v Consip Sp A, Ministero dell’ Economia e delle Finanze Case C-395/18 What are the practical implications of this case? General implications This ruling is expected to trigger reconsideration of national procurement laws across EU Member States that impose automatic, rather than discretionary, exclusions. Under Article 57(4) of Directive 2014/24/ EU, contracting authorities may choose to bar tenderers shown to be unreliable—for example due to breaches of environmental or social duties, including accessibility rules for disabled persons ( Article 57(4)(a)). Member States may transpose these grounds with differing levels of rigour, provided the conditions align with general EU law (paras [33] and [34]). The Court of Justice delineated the scope of that discretion by confirming that Member States may require contracting authorities to exclude bidders for infringements of social and labour law committed by their nominated...

Secretary of State for Transport v Arriva Rail East Midlands Ltd ( Arriva) [2019] EWCA Civ 2259 (18 December 2019)) What are the practical implications of this case? This Court of Appeal ruling, which confirms the High Court’s earlier judgment, offers firm guidance on the distinct character of the Francovich damages cause of action and the limitation deadlines governing it. While confined to Regulation ( EC) 1370/2007 (the Railway Regulation), its reach is broader for breach of statutory duty claims and Francovich actions, so long as the latter persist within UK law. Where a claimant considers judicial review to contest a decision said to infringe EU law, the ordinary three-month period governs that challenge. However, for private law claims— even if public law grounds based on EU law are ongoing or echoed in Part 7 proceedings—the relevant time bar is the domestic...

Quinn Infrastructure Services Ltd v Sullivan and others [2019] EWHC 2863 ( Comm) What are the practical implications of this case? The decision turned predominantly on the particular facts and depended heavily on specialist opinion, yet it clearly flags points practitioners must watch carefully when counselling clients on arrangements. Loose, undocumented understandings can create difficulties if not properly recorded and memorialised. It further underlines the core rule that a party cannot recover for a loss it has not actually sustained. Lastly, it exemplifies the difficulties posed by so-called ‘blind alley’ efforts on prototypes that were never deployed or delivered, and, in practice, the task of assessing what amounts to a fair fee for work performed. What was the background? The claimant provided engineers to BT. The first defendant acted as a de facto director and was subsequently thereafter made managing director of the claimant’s telecoms arm. The second...

R (on the application of Bond) v Vale of White Horse District Council [2019] EWHC 3080 ( Admin) What are the practical implications of this case? The Planning Court’s ruling is tightly tied to the particular facts. The issue arose because a change to the green belt policy within a local plan—introduced to mirror the recommendations of an inspector undertaking an independent examination—was not translated onto the adopted proposals map. The map failed to reflect the inspector-led modification carried through the plan-making process, leaving a mismatch between policy text and mapping outputs. That said, the judgment usefully reiterates that an adopted policies map is not a development plan document for the purposes of the Planning and Compulsory Purchase Act 2004 ( PCPA 2004). A policies map, once adopted, is a local development document and sits outside the local plan itself. Moreover, a policies map only needs to be...

Downe v Universities Superannaution Scheme ( USS) and another [2019] EWHC 2403 ( Ch), [2019] All ER ( D) 75 ( Sep) What was the background? Ms Downe is a member of the Universities Superannuation Scheme ( USS). Under the USS rules, a member may receive an early retirement pension on a non-reduced basis if their employment ends for redundancy. For USS purposes, redundancy is made out where a member’s employment is terminated and this is due, wholly or mainly, to the employer’s requirements for employees to carry out work of a particular kind ceasing or reducing, or being expected to cease or reduce. Ms Downe worked for the Society of College, National and University Libraries ( SCONUL) in various roles, notably in accounts and in events management, up to 16 November 2012. She had a strained working relationship with her manager, Mrs R, who joined...

R (on the application of Wingfield) v Canterbury City Council [2019] EWHC 1975 ( Admin) What are the practical implications of this case? The decision does not establish any new legal principle, but usefully reiterates settled law concerning what is commonly termed ‘salami slicing’. This describes breaking up a single development into smaller elements that fall beneath EIA thresholds, thereby sidestepping the need for an environmental assessment. Salami slicing has been found to be unlawful and should be avoided. The judgment confirms that defining the relevant ‘project’ for EIA purposes is a matter for the competent authority’s judgment, though it remains susceptible to challenge on grounds of Wednesbury rationality or other public law error. Lang J indicated that the following considerations are pertinent when deciding whether two schemes amount to a single project for the EIA regime: common...

R (on the application of Z and another) v Hackney London Borough Council and another [2019] EWCA Civ 1099 What are the practical implications of this case? The merits of the judicial review were difficult to discern, as the claimant accepted on the evidence that the allegedly discriminatory policy was justified on the statutory basis in section 193 of the Equality Act 2010: it sought to prevent or redress disadvantage linked to being an Orthodox Jew, notably by supporting a secure community to counter anti‑ Semitism. The real interest of the judgment lies in the Court of Appeal’s firm backing of the Divisional Court’s decision (that court comprising two seasoned judges, one, as is customary, drawn from the Court of Appeal). The appellate court underlined that it is not there to rehear the case; it will interfere with...

Brent London Borough Council v Secretary of State for Housing, Communities and Local Government and another [2019] EWHC 1399 ( Admin) What are the practical implications of this case? The decision confirms there is no duty on an inspector, in all appeals against enforcement notices, to go searching to determine whether some additional or alternative breach of planning control, different from that alleged in the notice, has taken place. Nor is there any rule of statutory interpretation requiring an inspector, when deciding such an appeal, to assess whether the use existing ten years before service of the notice had, within the ten-year period ending on the date of service, altered through intensification to such an extent as to amount to a material change of use. That said, where an enforcement notice asserts, or the local planning authority ( LPA) that issued it...

P.m. and Others (request for preliminary ruling) C-264/18 What are the practical implications of this case? Under the PCR 2015, a wide range of legal services let by public bodies fall within the ‘light‑touch’ regime in Chapter 3. As a result, awarding those contracts is governed by less burdensome requirements than those that apply to most other service procurements under the PCR 2015. Yet a narrower set of legal services—chiefly arbitration and conciliation work, together with representation in certain legal proceedings (and legal advice connected to such proceedings)—are carved out altogether from the procurement rules by regulation 10 of the PCR 2015. The dispute stems from a Belgian challenge to the exclusion of the relevant legal services under the Belgian counterpart to regulation 10. The applicants contended that excluding those services conflicted with the freedom of establishment and the freedom to provide services in the TFEU, and also...