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Administrative and public law seminar October 2016, London
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Administrative and public law seminarOctober 2016, London
Welcome to the administrativeand public law seminarThursday 20 October 2016Browne Jacobson, London
Information Law Update
Ros Foster and Megan Larrinaga
Hot Topics over the last 12 months• Legislative Changes GDPR FOIA Review• Significant Cases from Last Year Vidal-Hall Settles Dransfield Dismissed• New Cases DPA Damages SARs in the Courts Employees’ Right to Privacy• AOB Brexit
GDPR• Comes into force on 25 May 2018• Aims to create a uniform regime with enhanced rights
for data subjects, enhanced confidence in security andincreased accountability and a reduction inbureaucracy
• New definitions of personal data and sensitive personaldata
• New principles for data processing• New obligations on data controller and data processors• Increased fines for breaches of the Regulations
DEFINITIONS – PERSONAL DATACurrentData relating to a living individual who can be identifiedfrom those data or from those data and other informationwhich is in the possession of, or likely to come into thepossession, of the data controller.FutureAn identifiable person who can be identified directly orindirectly, in particular by reference to an identifier suchas name, identification number, location data, onlineidentifier or to one or more factors specific to theirphysical, cultural, physiological, genetic, mental,economic, cultural or social identity.
Special Categories of Data• Data revealing- Race or Ethnic Origin Political Opinions Religious or Philosophical Beliefs Trade Union Membership Health or Sex Life and Sexual Orientation Genetic or Biometric data in order to uniquely identify
a person• Processing of any/all of the above prohibited subject to
exceptions
Principles for Data Processing• Data must be processed lawfully, fairly and in a transparent
manner• Data must only be collected for a specified, explicit and
legitimate purpose• Data must only be processed to the extent that it is adequate,
relevant and limited to what is necessary in relation to thepurpose for which they are processed
• Data must be accurate and up to date. Data which is inaccurateshould be erased or rectified without delay
• Identifiable data should not be kept longer than is necessary• Ensure appropriate security of the data• Ensure compliance with the Regulations.
Data Subject Rights
• Data subjects can require: Inaccurate personal data be corrected or incomplete data be
completed including by way of supplementing a correctivestatement
Personal data to be in a machine readable and structuredformat commonly used by the data subject and that allowsfor further use
The data controller to delete their personal data wherecertain conditions are met (the “right to be forgotten”)
Data Subject Rights: continued Restriction of processing of personal data – so that this can
only be held by the controller and used for limited purposes Transfer of personal data from one data controller to
another (“data portability”) Processing of personal data not take place for direct
marketing, including profiling Not to be subject to a decision based solely on automated
processing, such as in connection with insurance premiums
The rights of access, rectification, erasure and the right toobject must be given effect to free of charge
Information to be provided to data subjects• Data controllers must provide the following to data subjects on
request: Identity and contact details of data controller and data protection
officer Intended purpose of processing and period for which data will be
stored Existence of rights: access, rectification, objection and erasure Right to lodge a complaint internally and to a supervisory authority Recipient or categories of recipients to whom data will be disclosed Intention to transfer to another country or international organisation• Information must be concise, transparent, intelligible and easily
accessible• Must be provided in writing unless otherwise requested.
Data Controller Obligations• Designate a data protection officer (where required)• Appoint a sub-processor• Adopt policies and implement appropriate technical
and organisational measures to ensure and be able todemonstrate compliance with GDPR
• Implement security requirements• Deal with privacy impact assessments• Comply with requirements of supervisory authority• Report breaches to the supervisory authority and
affected data subjects
Data Processor Obligations• Designate a data protection officer (where required)• Appoint a sub-processor only with authorisation of a data
controller• Adopt policies and implement appropriate technical and
organisational measures to ensure and be able to demonstratecompliance with GDPR
• Implement security requirements• Comply with requirements of supervisory authority• Maintain a written record of all personal data processing carried
out on behalf of a data controller• Notify data controllers without undue delay after becoming aware
of a breach
Non-Compliance by DataProcessors• Sanctions by regulator• Damages claims from data subjects
– failure to comply with lawful instructions of datacontroller
– apportionment between data controller and dataprocessor
• Damages claims from data controllers
Mandatory Breach Notification
• Notify data protection authority without undue delayand, where feasible, within 72 hours of awareness –reasoned justification required where timeframe is notmet
• Notify the affected data subjects without undue delay –where there is a “high risk” to their rights andfreedoms
• Not required if breach is unlikely to result in a risk tothe rights and freedoms of individuals
• Adopt internal procedures for data breaches
Consequences of a Data Breach• Level 1: €10,000,000 or 2% total worldwide annual
turnover• Level 2: € 20,000,000 or 4% total worldwide annual
turnover• Factors taken into account when determining fine:Nature, gravity and duration of the breachWhether breach intentional or negligent Previous breaches by the data controller/processor Technical and organisational measures in place.
FOIA Review – As you were (mostly)• March 2016 FOIA working well and does not need substantial
reform.Key recommendations• Section 35 (exemptions in respect of government policy
information)• Section 36 (prejudice to the effective conduct of public
affairs)• Limiting the scope for appeals• Extension of time to respond to FOIA requests – limited to an
additional 20 days• Internal Reviews – 20 days• Publication obligations
Last Year’s Cases – Vidal Hall• Ground-breaking case in which the CofA held that
cookies were personal data and a claimant neednot demonstrate pecuniary loss in order to make aclaim for damages pursuant to Section 13 DPA
• Effect of CofA decision was to disapply section13(2) of the DPA and allow Claimants to bring aclaim for breach of the DPA for distress alone
• Google appealed to the Supreme Court but on 12July 2016 the appeal was withdrawn.
Last year’s Cases - Dransfield• Leading Case on dealing with vexatious requests• Relevant factors in establishing whether request is vexatious are:(1)Burden – number, breadth, pattern and behaviour of the previous
requests(2)Motive(3)Value of the request(4)Harassment• The presence of any/all of the above does not necessarily mean a
request is vexatious but mean the request can be consideredvexatious
• Applied to the Supreme Court for permission to appeal• Permission refused on 17 December 2015
DPA Damages• TLT and others –v- Secretary of State for the Home Department
[2016] EWHC 2217• Home Office publishes quarterly statistics of children with no right
to remain in the UK who are returned to their country of origin• Two separate tables created one anonymised which is published and
one with personal data which is not published• In October 2013 the Home Office accidentally published both sets of
tables with details of almost 1600 applications for asylum/leave toremain. The information was downloaded 27 times in the UK andabroad and was uploaded onto a US website but subsequently takendown
• Claims issued by a number of affected individuals and the HomeOffice admitted liability
• Court had to determine remedy
DPA Damages• Court distinguished this case from cases involving
deliberate dissemination of private and confidentialinformation for gain e.g. by media publishers orindividuals
• Court considered that an important factor was loss ofcontrol over one’s private and confidential information
• Court analysed each individual claim and the evidencebefore it in respect of each claim and awardedcompensation ranging between £2,500 and £12,500
• Not only were the principles of privacy law individuallyconsidered but the strengths and weaknesses of eachclaim were assessed
SARs in the Court
• Section 7(9) DPA: court can order a data controller tocomply with a request if considers the data controllerhas not complied with its obligations
• Claims increasingly common with parties utilisingheavyweight representation
Approach of the Court?
Zaw Lin and Wai Phyo v Commissioner of Police forthe Metropolis [2015] EWHC 2484 (QB)• Claimants sought report produced by MPS in
connection with investigation by Thai police• MPS withheld in reliance on Section 29 exemption
(crime and taxation)• Claimants applied to Court for an order for
disclosure
SARs in the CourtGreen J held:• Court’s scrutiny must always be fact and context sufficient• Court must have regard to all relevant fundamental rights
when balancing the interests of the State and the individual• Narrower view should be taken of the breadth of discretion
than had been previously adopted (“free and untrammelleddiscretion”) – if decided MPS had erred must determine issuein line with the principles contained in the DPA
• Burden of proving right to invoke exemption falls on datacontroller who must do so “with significant and weightygrounds and evidence”
SARs – Disproportionate EffortMulcahy v Metropolitan Police Service• MPS estimated would take in excess of 441 hours/11
weeks to consider all the information held and decide ifit was the claimant’s personal data
• 12,344 pages, 2 minutes per page• Relied on Section 8(2): disproportionate effort• ICO fundamentally disagreed with approach taken but
took no action• Court agreed with MPS on basis of evidence before it
Employee Right to PrivacyBarbulescu v Romania (application 61496/08)• Mr Barbulescu was an engineer and was instructed by
his employer to install Yahoo messenger for workpurposes
• Employer suspected that the messenger service wasbeing used for personal reasons and monitored hismessages for a period of time without his knowledge.Employer also carried out a search of his work account
• Mr Barbulescu was dismissed for breach of companypolicy and challenged that dismissal through the Courts
Employee Right to Privacy• ECtHR held that an employer was entitled to access
employee’s private Yahoo messages• Was a work account operated on a work device but sent
messages to fiancée and family, some of an intimatenature, during work hours
• Company policy prohibited the use of a work account forpersonal purposes – B was sacked for breaching thepolicy
• ECtHR held that B’s Article 8 rights had been breachedbut that the interference was justified
• Not green light to monitor all employeecommunications.
Subject Access and Litigation
• Gurieva & Anor –v- Community Safety Development(UK) Ltd [2016] EWHC 643 (QB)
• Defendant was a private investigation companywho had been investigating the Claimants
• Claimants made a subject access request.Defendant refused in reliance on Section 29 DPA
• Claimants then sought an order from the Courtpursuant to Section 7(9) of the DPA
Subject Access and Litigation• Courts considered the trend towards the use of
subject access requests with a view to litigation tobe “unproblematic”
• Court found that such a motive does not matterand is no reason to refuse disclosure
• “I have difficulty with the notion that the use of aSAR for the purpose of obtaining early access toinformation that might otherwise be obtained viadisclosure in pending or contemplated litigation isinherently improper”
Subject Access and Fitness to Practise• Dr DB –v General Medical Council [2016] EWHC 2331• Patient P complained to the GMC that Dr DB failed to properly
diagnose him with cancer• GMC commenced an investigation to determine whether FTP
proceedings would be brought and commissioned an expert report intoDr DB’s treatment of P
• The report found that although the care provided was below theapplicable standard it was not seriously below
• GMC ultimately did not pursue FTP proceedings• P sought a copy of the expert report by way of a SAR• GMC sought the views of Dr DB who objected to the release of the
expert report. The GMC ultimately concluded that the report shouldbe released to P
• Dr DB challenged that decision in the Courts
Subject Access and Fitness to Practise• Court concluded that the GMC, although had conscientiously
carried out the balancing exercise, it had got the balance wrong• While the expert report contained P’s personal data, the real focus
was on Dr DB’s professional competence;• GMC failed to give adequate weight to Dr DB’s right to privacy• The absence of consent meant the GMC should have started with a
presumption against disclosure. An express refusal was anadditional factor in favour of non-disclosure
• The purpose and timing of the request was relevant. The sole ordominant use was litigation. Report was not sought to protect P’sprivacy by ensuring accuracy of personal data. Disclosure of thereport would mean Dr DB would be deprived of protectionsafforded by CPR 31
• Report should not be disclosed.
Brexit
• ?• DPA will still apply to some extent and we will still
be dealing with EU countries• FOIA will still apply – it’s still Tony Blair’s fault
Questions?
Ros [email protected]: +44 (0)20 7337 1015 M: 07760726726
Megan [email protected]: +44 (0)20 7871 8504 M: 07789942919
Prerogative Powers & Article 50
Laura Hughes20 October 2016
Overview
• Overview of prerogative powers• Article 50 Process• Exit Methods• Government –v- Parliament• Parliamentary Involvement• The Prerogative• The Legal Challenge
Prerogative Powers
• Powers held by the crown known as Prerogativepowers– Exercised by ministers of the Crown– Collection of specific powers; no definitive list– Prerogative powers are defined judicial decisions
(Case of Proclamations (1611))
• Bill of Rights 1689 and Crown Proceedings Act 1947– Where statute overlaps, prerogative powers are
suspended.
Prerogative Powers (2)
• BBC v Johns (Inspector of Taxes) [1965] Ch 32– Courts cannot broaden powers beyond existing scope
"It is 350 years and a civil war too late for theQueen's courts to broaden the prerogative.“• Blackburn v Attorney-General [1971]
– Treaty making powers of the crown are immunefrom interference by the courts
Prerogative Powers (3)
• Argued that Article 50 of TEU may be an exerciseof prerogative powers
• International treaties entered into usingprerogative powers
• EU membership by virtue of international treaties– Use of powers may extend to withdrawal from EU
treaties
Article 50 Process
• Treaty of Lisbon 2009• Article 50 of TEU:
– “own constitutional requirements”– Notify the EC under Article 50 (2)
• Two year withdrawal deadline; no withdrawal• Parties must agree arrangements for withdrawal• Expected March 2017• Referendum decision does not constitute notice
Other Exit Methods
• No clear framework for Article 50– Article 48 TEU: amending EU treaties, unanimous
agreement from Member States– Vienna Convention: fundamental change in
circumstances; Article 50 precedent
• Agreed exit method:– Repeal Bill to repeal the ECA 1972– Questions remain over the extent of EU legislation to
be re-enacted and for how long
Government –v- Parliament
• No codified constitution– Parliament: primary legislation– Prime Minister: prerogative power
• Parliament incorporated EU laws- unconstitutional• Constitutional law- EU law incorporated through
Royal Prerogative
Parliamentary Involvement
Attorney General v De Keyser’s Royal Hotel Ltd.[1920]:
“When the power of the Executive…has beenplaced under Parliamentary control, anddirectly regulated by statute, the Executive nolonger derives its authority from the RoyalPrerogative of the Crown but from Parliament”
Parliamentary Involvement cont.
• R v Secretary of State for the Home Departmentex parte Fire Brigades Union [1995]– Restrictions on use of Prerogative powers
• EU membership approved under ECA 1972– Contravenes Parliament’s intention
• Approval of repeal of ECA 1972
Parliamentary Involvement cont.
• European Parliamentary Elections Act 2002• Constitutional Reform and Governance Act 2010• USA: President may withdraw without congress
approval• Parliamentary supremacy: modify Royal Prerogative• European Union Act 2011
– No Parliamentary approval for Article 50
• Political case for involving Parliament?
The Prerogative
• Ratification/withdrawal: prerogative power• Article 50: does not contravene ECA 1972
– Does not frustrate Parliament’s intentions?
• Repealing ECA before withdrawal: breach• European (Amendment) Act 2008
– Treaty of Lisbon
• European Referendum Act 2015• Legislation to repeal ECA 1972
The Legal Challenge
• R (Santos) v SoS for Exiting the EU• Cast heard 13, 17 and 18 October• 3 judge Court – Lord Chief Justice, Master of the
Rolls and Lord Justice Sales• Leapfrog appeal to Supreme Court – all 11 Judges
sitting in early Dec• Concessions in the meantime?
Non-EU Treaty Obligations
Administrative Law
Richard Barlow20 October 2016
Non-EU Treaty Obligations
Overview• Brexit Models• Government Procurement Agreement• European Convention on Human Rights• The Aarhus Convention• The Kyoto Protocol and The Paris Agreement• Convention 108• Conclusions
Brexit Models• Repealing the European Communities Act 1972• Vienna Convention 1969• Different exit options:
– The Norway model– The Switzerland model– The World Trade Organisation model– Others
• The key question is how might existing non-EUinternational Treaty Obligations impact post Brexit?
Government ProcurementAgreement
• “WTO GPA”• Public Contracts Regulations 2015• Rules do not automatically apply to all activities• Enforcement: domestic review, WTO dispute
settlement mechanism• An alternative is the United Nations Commission on
International Trade Law (UNCITRAL) which hasproduced - 2011 Model Law on Public Procurement
ECHR
• EU Convention on Human Rights –v- EuropeanCharter of fundamental rights
• Brexit: EU Charter will no longer be relevant– Greater protection under the Charter
• Brexit: UK remains a signatory of the ECHR– Continuing duties under HRA 1998
• Repealing the Human Rights Act 1998; British Bill ofRights replicating the ECHR
The Aarhus Convention
• UK is a signatory in its own right:– Access to environmental information– Public participation in environmental decision
making process– Access to justice
• Environmental Impact Assessment, StrategicEnvironmental Assessment and Access toEnvironmental Information are all considered to berequired for compliance with the Convention
The Aarhus Convention
• UK in breach of Aarhus Convention– Costs of access to justice
• European Commission v United Kingdom [2014]– Environmental JR prohibitively expensive
The Aarhus Convention cont.
• Jackson reforms to costs• Brexit: unincorporated treaty• Compliance: existing EIR regulations or amendment
to FOIA exemptions• Expectation that as UK is a signatory to this
Convention it will continue to observe itsrequirements.
Kyoto Protocol
• UN Framework Convention on Climate Change 1992• Kyoto protocol 1997; reductions to greenhouse gas
emissions• UK is a signatory in its own right• The Climate Change Act 2008 implements Kyoto
The Paris Agreement• Combat climate change• Can be ratified without EU or UK
– 55 countries; 55% of world’s emissions
• UK continues as a party to UNFCCC• Nationally Determined Contributions
– Separate NDC for UK– Unless joint EU/UK fulfilment agreement
• https://www.e3g.org/docs/Brexit_and_the_Paris_Agreement_E3G.pdf
Convention 108
• Data Protection Act 1984 to implement• GDPR due to be in force in May 2018• The UK remains a member of the Council of Europe
and a party to Convention 108 for the Protection ofIndividuals with regard to Automatic Processing ofPersonal Data
• Adequacy of data protection– Implementation of equivalent legislation
Environmental InternationalProtocols• There are many environmental international
conventions/protocols/agreements• Highlights include:• UN Convention on Biological Diversity• OSPAR Convention• Berne Convention 1976• Bonn Convention on Migratory Species 1979• CITES and CoTES
Procurement in 2016 andbeyond – current trends,updates and the impact ofBrexitAlex Kynoch and Will Thomas
Overview
• The UK procurement regime• Overview of Public Contracts Regulations (PCR)
2015• Practical advice on how to run a procurement
project• Energy Solutions EU Ltd v Nuclear Decommissioning
Authority [2016] EWHC 1988 (TC) – howprocurement can go wrong
• Procurement post-Brexit
Current UK procurement regime
• What is public procurement?• Who has to comply with the rules?• What are the obligations if the Public Contract
Regulations 2015 apply?• What are the consequences of a failure to
comply?
Legislative framework
• Directive 2014/24/EU of the EuropeanParliament and of the Council of 26 February2014 on public procurement
• Implemented by Public Contract Regulations2015 (S.I. 2015/102) (“PCR 2015”)
Contracting authorities
• The definition of contracting authorities is wide, including centraland sub-central authorities and bodies “governed by public law”.
• Contracting authorities include:– Government departments– Local authorities– Police and fire authorities– NHS trusts– Some non-departmental government bodies– The House of Commons
Which contracts of a contractingauthority are covered?• The PCR 2015 apply when a contracting authority seeks offers in
relation to:– A proposed public supply contract– A proposed public works contract– A proposed public services contract– A proposed contract for the provision of certain social or other
specific services– A proposed framework agreement or dynamic purchasing
system, where the subject matter involves any of the above
• Applies to “public contracts”.
Exclusions from the PCR 2015
• Excluded contracts
• Exemptions for public to public arrangements In-house awards (“Teckal” arrangements) Inter-authority cooperation (“Hamburg Waste”
arrangements)
Thresholds
• Works - £4,104,394
• Supply, services and design contracts– Central government - £106,047– Sub-central bodies - £164,176
• Light touch – £589,148
Abolition of the distinction betweenPart A and Part B services
Previously:
– An exhaustive list of Part A services which were subject to the full rigour ofthe EU rules; and
– A non-exhaustive list of Part B services that were subject to the EU rules onlyto a limited extent
Under the new Regulations (regulations 74 to 76):
– New Regulations provide that all services over relevant financial thresholdswill be subject to full rigour of rules unless they fall within list of services inSchedule 3 (social, health, education and certain other services) which areinstead subject to a new ‘Light Touch Regime’.
Light Touch Regime – when/how willit apply?• Special light touch regime applies to contracts for social, health, education and
certain other services with a value over €750,000 (reg 5(1)(d) (set for the UK at£589,148)
• Regulations take a very minimalistic approach (regulations 75 and 76):– (Reg 75) Confirms the directive mandatory provisions:
Contract notice or where permissible under other sections a PIN (with requiredinformation)
Award notices must be issued
– (Reg 76) No set structure but MUST ensure compliance with principles oftransparency and equal treatment
– Advert (notice or PIN) must confirm: Conditions for participation Time limits The procedure to be applied
– Lists matters which may be taken into account when awarding
Award procedure• Procedures available are:
– Open– Restricted– Competitive Dialogue– Competitive Procedure with Negotiation– Innovation Partnership
• As to choice of which to use:
– Open, Restricted procedures freely available– Competitive Procedure with Negotiation and Competitive Dialogue
Procedure in particular situations– Innovation partnership available where appropriate
Structure of a publicprocurement (1)
Planning and the business case
Selecting a procedure
Advertisement
Pre-qualification
Structure of a publicprocurement (2)
Invitation to tender/dialogue/negotiate
Dialogue/negotiation
Bid submission
Evaluation
Award, debrief and contract completion
Contract monitoring and preparing for re-tender
Consequences of failure tocomply?
• Proceedings may be brought in the High Court
• The Court can suspend a procedure, set aside adecision or award damages
Practical advice on how to run aprocurement project• Remember certain key principles:
– Be open and transparent– Be objective and ensure equal treatment of
tenderers – allow all tenderers a fair and equalchance of winning the contract
– Be consistent
Practical advice on how to run aprocurement project• The contracting authority needs to ensure it can
demonstrate that it has obtained the best price whichis reasonably obtainable on the sale of any land
• A Council’s best value duty• State aid• The Wednesbury reasonableness test• A Council’s constitution, rules and standing orders
Making a decision• All decisions must be fair, objective and transparent• Officers must be aware of the need for:
– Disclosure of interests in a bidder and avoiding conflictsof interest
– Avoiding supplier hospitality– Maintaining confidentiality– Keeping clear and accurate records– Code of Conduct– Complying with the law– Reporting any concerns
Energy Solutions EU Ltd v Nuclear DecommissioningAuthority [2016] EWHC 1988 (TC) – how procurementcan go wrong• The procurement exercise for the clean-up of 12
nuclear sites resulted in an incorrectly awardedcontract
• Had the NDA correctly followed its own evaluationrules, the winning party (Cavendish Fluor Partnership –CFP) would have been disqualified
• The NDA had manipulated the valuation process toavoid disqualifying CFP’s bid
Energy Solutions EU Ltd v NuclearDecommissioning Authority [2016] EWHC 1988(TC) – how procurement can go wrong• The NDA had not met its obligations relating to
transparency and equal treatment under the PublicContracts Regulations 2006
• Applying the correct weighting, the adjusted resultsmeant that Energy Solutions EU Ltd had submitted themost economically advantageous tender
• Energy Solutions EU Ltd was entitled to damages as aresult of the errors made by the NDA
Woods Building Services v Milton KeynesCouncil [2015] EWHC 2172 (TCC)
• Heavily criticised for lack of explanation of scores inevaluation records – cast doubt on scores awarded
• Court went further in assessing scoring than previouscases
• Damages available even though contract not awarded –suggests right to abandon a process is not absolute
Standard Selection Questionnaire
• Procurement Policy Note 8/16
• Replaces standard PQQ
• Applies to all contracting authorities
• N/A to health services or works contracts (or goods& services “needed in relation to the works”)
Standard Selection Questionnaire
• Must allow bidders to self-certify
• Must report deviations which are:– Changes to the standard wording– Additional questions which aren’t specific to the
procurement in question
• Must use electronic submissions from 18 April 2017
Brexit
• Immediate impacts?– EU law continues to apply until we formally leave
the EU– Public procurement must continue to comply with
the PCR 2015– PCR 2015 is UK legislation so will not cease to apply
after formally leaving the EU– PCR 2015 would need to be specifically repealed or
amended by Parliament
Summary of post-Brexit options
Post-Brexit Procurement
• Regulated procurement regime is highly likely• Regulations based on award of public contracts
being:– Transparent– Fair– Accountable (formal challenge process)
• Public appetite for transparency and accountability• Commercial appetite for fairness and ability to
challenge
Brexit conclusions
• Only time will tell
• Until then – business as usual
Public Law: Case Law Update
Ben Standing - Solicitor20 October 2016
Overview• Judicial Review: Guidance• Procedure• Mistake of Fact• Duty of Candour• Expert Statutory Decision Makers• Detailed Reasons• Without Merit Applications• Consultation• Adherence to Policies
Judicial Review
New Judicial Review guidance 2016• “Invaluable roadmap”• “Good practice is identified”• Contains details on specific practice points
– Duty of candour– PCOs and costs
Cost Capping Orders• S88- S90 CJCA 2015 - In force 8 August 2016
• May be granted:– On application only; permission must have been
granted– Public interest proceedings– The claimant would otherwise withdraw– Reasonable to do so
• Court must have regard to financial resources ofthe parties and extent to which claimant is likelyto benefit if relief is granted
Procedure (1)
R (Yousuf) v SSFCA [2016] EWHC 663 (Admin)Background:• British overseas citizen• Passport application: ‘fraudulent’ birth certificate• SoS rejected application without detailed reasons
as to why fraudulent• Permission to apply for Judicial Review
Procedure (2)
• SoS agreed to reconsideration of decision• Claimant refused to withdraw JR• Parties agreed a consent order to stay proceedings• Court refused to grant stay and matter proceeded
to hearing• Claimant argued: stay claim or decide issues in part
or full
Procedure (3)
Decision:• Claim allowed
– Reasons given were not sufficient– Original decision must be quashed, new officials to
review the claim
• If stayed, distinction in decision making blurred• Avoidance of court fee• Hampered efficient administration of the court
Procedure (4)
Impacts:
“Judicial Review did not exist to regulate ormicromanage public authority decision-making, butto consider the lawfulness or rationality of a decisionwhich had already been made.”
Mistake of FactR (Judith Watt) v London Borough of Hackney[2016] EWHC 1978 (Admin)Background:• Planning permission for building next to school• Error in sunlight and shadow assessment submitted
by applicant. LA relied on assessment to concludecompliance with sunlight requirement forplayground
• Claimant argued mistake of fact constituted groundfor JR
Mistake of Fact (2)
Decision:• Test applied from E v SSHD. Objective unfairness
from combination of factors– Mistake of fact created erroneous impression– Fact was objectively verifiable– Claimant was not responsible– Played a material part in reasoning
Statutory test in Senior Courts Act 1981
• Permission granted
Mistake of Fact (3)
Impacts:• JR not a process suited to mistake of fact• Not the purpose of the court to substitute its views
for that of the decision maker• Challenges must be limited to sufficiency of
evidence – otherwise an appeal of a factualdecision
Duty of Candour (1)R (Bancoult (No2)) v SSFCA [2016] UKSC 35Background:• Inhabitants of Chagos Islands relocated• Prohibition on resettlement• 2000: High Court order lifiting prohibiton• 2002: Feasibility study, resettlement prohibitively
expensive• 2004: Order granted prohibiting residence• 2008: Judicial Review of 2004 order- dismissed
Duty of Candour (2)
• 2012: New documents revealed– Significant doubt on feasability study
• Argued highly likely challenge in 2008 would havesucceeded
• Issue before the court – should the 2008 decision beset aside on grounds that the Secretary of Statefailed, in breach of his duty of candour in publiclaw proceedings, to disclose relevant documentswhich may affect the factual position
Duty of Candour (3)
Decision:• To re-open appeal, clear that a: “significant
injustice has probably occurred and that there isno alternative effective remedy”; or
• “Powerful probability”;• Application dismissed: different outcome not
probable, or likely
Duty of Candour (4)
Impacts:• Matter of good practice to disclose significant
documents• Ongoing duty of disclosure• Full and frank disclosure• Order for specific disclosure where inaccurate,
inconsistent or incomplete evidence
Expert statutory decision makers
R (Nigel Mott) v Environment Agency [2016] EWCACiv 564Background• Catch limit imposed to protect salmon fisheries in
River Wye– Limit reduced leaseholder’s catch by 95%
• First instance decision held that decision wasirrational and the limit unlawfully interfered withleaseholder’s ECHR Protocol 1, Art.1, rights
Expert statutory decision makers(2)Decision:• Statutory decision makers are to be accorded an
enhanced margin of appreciation• Must give sufficient explanation of how the science
relates to its decision to enable to the court todetermine whether the statutory decision makerhad erred in law or abused its discretion
• Compensation required for loss of right
Detailed ReasonsR (CPRE Kent) v Dover District Council & ChinaGateway International Ltd [2016] EWCA Civ 936Background• Appeal against refusal of JR of LPA’s grant of
planning permission for development in AONB• Planning officer’s report considered proposals
would have significant detrimental impact, butsuggested modifications
• LPA granted unmodified application• Claimant argued LPA not given adequate reasons
Detailed Reasons (2)
Decision:• Parties are entitled to know reasons for a decision
even if not made by a minister or inspector• If departing from the planning officer’s
recommendations, LPA must engage with theofficer's reasoning
• LPA had not fulfilled statutory duty under TCPRegulations 2011, Regulation 24(1)(c)
Detailed reasons (3)
“The degree of particularity required dependsentirely on the nature of the issues falling for
decision”• Not imposing in general an onerous duty on LPAs to
give reasons for the grant of permissions• However demonstrates need for detailed reasons in
particular cases• Need to be sufficient to explain why rational
decision made
Without Merit Applications
Samia Wasif v SSHD [2016] EWCA Civ 82Background:• Refused application for permission to seek JR -
certified as totally without merit• Appeal to Court of Appeal• Court of Appeal gave guidance on when to declare
an application for JR as ‘totally without merit’
Without Merit Applications (2)
Decision:• Difference: “not arguable” and “bound to fail”
– Waste of court resources if bound to fail
• Won’t certify without merit unless bound to fail– But should feel no inhibition about certification
• Judges must give adequate reasons, both forpermission and separately for why the case istotally without merit
Without Merit Applications (3)
Impacts:• Subtle but real distinction: refused permission v
totally without merit• Without merit used in limited circumstances• Test used on a case by case basis
– Difficult to apply in practice
• Claimants should be given chance to answer newpoints raised in summary grounds of resistance
ConsultationBokrosova v London Borough of Lambeth [2015]EWHC 3386 (Admin)Background:• Regeneration/ refurbishment of housing estate• S105 Housing Act 1985: obligation to consult• Published detailed consultation programme on
regeneration and refurbishment options• Withdrew consultation on refurbishment options• Challenged by tenant. Breach of Housing Act 1985
Consultation (2)Decision:• Council acted unlawfully as had published a
detailed and sophisticated programme ofconsultation. Its decision not to complete theconsultation in relation to the refurbishmentoptions reneged on that programme
• No sufficient change of circumstances to justifyceasing consultation
• Not highly likely that the outcome would have beenthe same
Consultation (3)
Impacts:• Carefully plan consultation• Once publicised, should normally follow agreed
steps• May be entitled to amend consultation if sufficient
change of circumstances
Adherence to Policies
Mandalia v Secretary of State of the HomeDepartment [2015] UKSC 59Background:• Supreme Court decision on application of policies• Policy document
– Flexibility for case workers to request a documentthey had reason to believe existed, if that documentwould lead to an approval being given
• Internal policy not followed
Adherence to Policies (2)Decision:• An individual has a basic public law right to have
his or her case considered under any policy thathas been lawfully adopted by the executive, unlessthere are good reasons for not doing so
• Argument that statements were not missing from aseries were at a high level of pedantry
• Decision to refuse application, without asking formissing information, had been contrary to policyand unlawful
Adherence to Policies (3)
Impacts:
• Importance of public body’s adherence to policiesunless good reasons for not doing so
• Claimant entitled to rely on policy irrespective ofknowledge
