Legal News

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...

Reid v Price [2020] EWHC 594 ( QB) What are the practical implications of this case? This decision is a helpful authority on quantifying damages for claims involving disclosure of private information, breach of undertakings, breach of confidence, and the misuse of private information. It addresses how compensation should be assessed across overlapping privacy-related wrongs. The principles articulated in the judgment merit close attention by practitioners advising on likely awards in comparable situations, particularly since, in Warby J’s own phrase, ‘the authorities are not very numerous’. Warby J held that Mr Reid succeeded on four distinct causes of action: breach of contract, namely breach of express undertakings provided by Ms Price in 2011 that the relevant material would not be revealed unjustified breach of Mr Reid’s confidence misuse of private information concerning Mr Reid breach of statutory duty under section 4(4) of the Data...

Gaughran v United Kingdom ( App No 45245/15) [2020] ECHR 45245/15 What are the practical implications of this case? Confirming Lord Kerr’s dissent in the Supreme Court ( Gaughran v Chief Constable of the Police Service of Northern Ireland [2015] UKSC 29), [2015] 2 WLR 1303, the ECt HR concluded that the policy amounted to an unjustified interference with Mr Gaughran’s Article 8 rights. The court did not, though, propose any new overarching principles for such policies. It remains apparent that evaluation is fact dependent; the more calibrated and precise a policy, the more likely it is to withstand examination. The ECt HR’s divergence from the Supreme Court stemmed largely from its reliance on slightly different factual foundations. Notably, in assessing proportionality under Article 8, the ECt HR placed significant weight on the lack of adequate procedural safeguards allowing an individual to apply for...

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...

For much of the UK’s membership of the EU, the interaction between European law and the domestic system has sparked debate. To many observers, it operates as a limitation—practically, if not as a strict matter of doctrine—on the constitutional tenet that Parliament, acting with the Crown, is sovereign. In that context, the European Union ( Withdrawal Agreement) Bill ( WAB) sets out a number of measures with significant consequences for how sovereignty is to be understood in the United Kingdom. Current status of EU law At present, section 2(1) of the European Communities Act 1972 ( ECA 1972) stipulates that all rights, powers, liabilities, obligations and restrictions created by or under the Treaties, together with all remedies and procedures they provide, are to take legal effect in the United Kingdom without further legislation. Those rights must be recognised, available and enforced in UK law, and...

What are the practical implications of this case? As with the rulings at first instance and on appeal, there are likely to be consequences in both the political and legal arenas. Politically, the judgment heaps considerable pressure on the PM and the government. This is an extraordinary ruling by the Supreme Court. The court concluded that the PM acted unlawfully and without adequate justification, preventing Parliament from fulfilling its constitutional roles both as a legislature and as the body tasked with holding the executive to account. It is difficult to characterise this outcome as anything other than an embarrassment for the PM. It amounts to a serious censure and, in the circumstances, it is unsurprising that there are already calls for the PM to ‘consider his position’. Parliament has been......

What is FRT and which laws presently govern it in the UK? Are there any plans for regulation? FRT is a type of biometric identification that relies on facial characteristics, typically matching them with images in a database, to confirm someone’s identity (for example, e Passport gates at airports, spotting ‘persons of interest’ on a busy street, or identifying recipients of football banning orders at a football match). While implementations vary, the usual workflow starts by detecting and capturing a face, often from CCTV footage. A recognition algorithm then normalises the captured image—adjusting size, rotation and similar factors—so it aligns with the format of images stored on a database or ‘watchlist’ of known individuals. The normalised image is statistically compared with entries on the watchlist. If the similarity score set by the FRT operator meets the required threshold, a ‘match’ is registered between the...

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...

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...

What, in summary, are the recent developments relating to the EU settlement scheme? Following earlier pilot phases, the scheme went live in full on 30 March 2019, making it accessible to every EU citizen and their family members. The caseworker guidance is extensive and divided into two texts: EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members — a 104-page guide outlining eligibility, when an application is valid, what evidence to submit, the steps in the process, and particular rules for family members. EU Settlement Scheme: suitability requirements — a 22-page guide devoted to character and conduct considerations, and the ways these could affect an application under the EU settlement scheme. These materials assist applicants seeking a thorough grasp of the process and the paperwork they may require. Yet the breadth and depth of what is provided can feel daunting for...

R (on the application of Hallam and another) v Secretary of State for Justice [2019] UKSC 2, [2019] All ER ( D) 143 ( Jan) What are the practical implications of this decision? The judgment exposes a wider concern about the treatment of those wrongfully convicted in England and Wales. After years in custody on unsafe convictions, many are released to minimal assistance and face significant barriers to rebuilding their lives, including: little structured support on release no automatic access to living allowances or specialist psychological care a requirement to apply to have their criminal record removed no apology or account of what went wrong an even lower likelihood of securing compensation CJA 1988, s 133(1ZA) prescribes the eligibility test for compensation following a miscarriage of justice. Inserted into the CJA in 2014 to define the meaning of miscarriage of justice, it requires applicants whose convictions have been quashed to...

Average fine for data breaches doubles to £146,000 in just a year What is this development about? Average penalties issued by the ICO have risen to £146,000 ($185,888), up from £73,000 in the equivalent 12‑month period, research from RPC indicates. The aggregate value of sanctions increased by 24% to £4.98m, compared with £4m a year earlier. Richard Breavington, a partner at the firm, said the regulator is showing more bite and a readiness to echo public sentiment, noting that the necessary mindset and authority are in place and that there has been a marked shift. The GDPR took effect in May 2018 and permits fines of €20m ($22.7m) or 4% of annual global turnover, whichever is greater. Before May 2018......

How has the exemption available for controllers under the GDPR in relation to liability to compensate data subjects changed? Under the earlier Data Protection Directive 95/46/ EC ( Article 23(2)), where a person was entitled to damages from a controller due to unlawful processing, the controller could rely on a potential exemption if it was not responsible for the event that caused the loss. Recital 55 offered two illustrations of situations for which the controller would not bear responsibility: a mistake by the data subject, and a case of force majeure The language of these provisions lacked clarity, and the concept of ‘force majeure’ has no consistent definition across EU legal systems (it does not even carry a settled meaning in English law, depending heavily on contractual wording). Unsurprisingly, this carve-out, and the reference to force majeure, was therefore loosely carried across into...

SRCL Ltd v National Health Service Commissioning Board (also known as NHS England) [2018] EWHC 1985 ( TCC) What are the practical implications of this case? The court delivered a series of significant observations that merit close attention across multiple aspects of the dispute. On procedure, it highlighted the centrality of agreed lists of issues, stating that a List of Agreed Issues is an essential device in contemporary litigation, not just in the specialist courts but across the High Court. The court was distinctly unimpressed by SRCL’s effort to advance a new contention at trial that had not appeared on the agreed list, determining that parties should be bound by what they have settled in that list rather than treating it as merely indicative. As to limitation, the judgment demonstrates that the short time limits under the Public Contracts Regulations 2015 SI 2015/102 ( PCR...

What is the background to the case? The judicial review stemmed from the Department for Infrastructure’s ( Df I) approval of an energy-from-waste scheme at Hightown Quarry in North Belfast. The proposal was advanced by Arc21, a consortium of NI local councils formed to deliver waste management solutions for those authorities. The approval decision was taken in September 2017 by the Df I’s Permanent Secretary, more than a decade after the project was first envisaged. As a rule, the ultimate sign-off would fall to the departmental minister. However, following the fall of the Stormont Executive in January 2017, there was no minister in post. The Df I therefore found itself in the awkward position of waiting for either the return of the Executive or the imposition of direct rule by Westminster. In September 2017—and indeed at that time—neither outcome looked remotely likely. A local...

It is common for suppliers in commercial services agreements to seek to generally exclude all their liability for ‘loss of data’—what sorts of potential claims would such an exclusion cover and what is the commercial rationale for including such a clause? As GDPR ( Regulation ( EU) 2016/679) neared its 25 May 2018 start date, these discussions became increasingly routine, with many organisations looking to ‘repaper’ and revise existing contracts to secure GDPR compliance. The term ‘loss of data’ has no statutory definition, so its scope must be read in the context of the particular agreement. In practice, it would usually be treated as catching claims arising from: Destruction of data Corruption of data Accidental disclosure of data Theft of data This would apply however the issue arose—eg through a virus, power failure, mechanical fault, human error or a...

Jones v Birmingham City Council [2018] EWCA Civ 1189, [2018] All ER ( D) 129 ( May) What are the practical implications of the judgment? There has long been debate over whether the civil standard required to obtain a gang injunction accords with Article 6 ECHR. The decision in Jones resolves that, for now, by stating unequivocally that proceedings under PCA 2009 Part 4 and ASBCPA 2014 Part 1 do not determine a criminal charge within the meaning of Article 6(1) ECHR, and that the fair trial guarantees in Article 6 more generally do not demand application of the criminal standard of proof. In essence, relying on the civil threshold to secure these injunctions is compatible with Article 6 ECHR, and practitioners may proceed on that footing unless and until the Supreme Court or the European Court of Human Rights decides...