Practical Law

Make sure that you have not missed a key development in your area of the law by reading our In brief review of the latest Practical Law Public Sector email.

Civil litigation:

• The High Court has:
  • refused to grant a claimant indemnity costs, where her Part 36 offer was withdrawn 21 days after it was made (Gulati and others v MGN Ltd);
  • held that “without prejudice” communications with a regulator can be withheld in civil proceedings, but found the defendant had lost the right to do so (Property Alliance Group Ltd v Royal Bank of Scotland Plc);
  • considered an application to disapply the usual costs consequences of a Part 36 offer in old CPR 36.10(5)(a) (in force before 6 April 2015) (Purser v Hibbs and another);
  • allowed a late change in expert, and has offered guidance on the usefulness of supplemental expert reports. (Lee v Colchester Hospital University NHS Foundation Trust); and
  • considered whether a party had complied with its disclosure obligations, in particular whether it had conducted a reasonable search for documents in circumstances where it provided access to an electronically scanned database of documents (Smailes and another v McNally and another).
• The Lord Chief Justice has published Practice Guidance: Committal for Contempt of Court – Open Court, which clarifies various points surrounding the application and interpretation of the Practice Direction on committal for contempt of court.
• Four speeches have been published that discuss reforming and modernising the justice system, as well as the challenges that the judiciary may face in the next Parliament.

Commercial:

• The High Court has applied business common sense to interpret a contract where the natural meaning of the words were genuinely ambiguous (Ace Paper Limited v Fry and others).
• BIS has published a policy paper which provides a quick reference guide to organisations forming the Consumer Protection Partnership (CPP) and their roles independent of the CPP.
• The National Audit Office has published a report on open-book accounting and supply-chain assurance.

Education and children’s services:

• The Department for Education has published a series of model ballot documents and guidance for grammar schools converting to academies.
• The Court of Appeal has allowed an appeal in a care case due to a six month delay between the conclusion of the oral evidence at the final hearing and the judgment and decision being given. Updating evidence should have been directed (Re T (Children)).
• The High Court has extended a reporting restriction order, made to keep the anonymity of a child sex exploitation victim, beyond her 18th birthday (Birmingham City Council v Riaz and others).
• The Local Government Ombudsman has investigated a complaint involving the removal of a baby from a mother’s care, and recommended that a council pay the child’s mother and maternal grandmother compensation totalling £7,000. They found that the baby was removed without proper consent and the council had acted arbitrarily (Local Government Ombudsman: Investigation into a complaint against North East Lincolnshire Council).
• The Association of Lawyers for Children (ALC) has published its response to a consultation paper published by the Civil Procedure Rule Committee proposing amendments to Practice Direction 52C of the Civil Procedure Rules 1998 to allow press access to skeleton arguments for Court of Appeal hearings. The ALC has opposed the amendments entirely, based on research about the effect of publicity on children.

Employment and pensions:

• The Court of Appeal has given general guidance on how a tribunal should approach the requirement in indirect discrimination claims for claimants to show not only group disadvantage caused by application of a provision, criterion or practice, but also that this caused their personal disadvantage (Home Office (UK Border Agency) v Essop and others).
• The Northern Ireland Court of Appeal has held that there is no reason in principle why voluntary overtime should not be included in statutory holiday pay for the purposes of the Working Time Regulations (Northern Ireland) 1998 (Patterson v Castlereagh Borough Council).
• The EAT has:
  • upheld a tribunal’s decision to make a 90 day protective award in circumstances where no consultation was undertaken because the employer was unaware of its legal obligation to consult (E Ivor Hughes Educational Foundation v Morris and others);
  • upheld a decision of the Central Arbitration Committee that, in the context of the Information and Consultation of Employees Regulations 2004, the term “undertaking” refers to a legal entity, such as the employer of the employees concerned (Moyer Lee and others v Cofely Workplace Ltd); and
  • decided that neither procedural flaws in the first stage of the disciplinary process, nor the employer’s failure to comply with the Acas Code in respect of the composition of the appeal panel, resulted in an employee’s dismissal being unfair (Adeshina v St George’s University Hospitals NHS Foundation Trust and others).
• The First-tier Tribunal has held that a payment under a compromise agreement was subject to income tax because it was made to compensate the employee for a change in the terms of his contract (Hill v HMRC).
• Acas has published a brief guide explaining the rights to time off for antenatal and adoption appointments. It has also published a separate brief guide on surrogacy setting out the rights available to surrogate mothers and intended parents.

Environment:

• The Emissions Performance Standard (Enforcement) (Wales) Regulations 2015 have been made and will come into force on 8 July 2015.
• The European Commission has launched a public consultation on the functioning of waste markets in the EU.

FOI and data protection:

• The Re-use of Public Sector Information Regulations 2015 have been laid before Parliament and will come into force on 18 July 2015. The regulations revoke and replace the Re-use of Public Sector Information Regulations 2005 in order to implement Directive 2013/37/EU.
• The Article 29 Working Party has published an Opinion on privacy and data protection issues relating to the utilisation of drones.

Health:

• The National Health Service (Revision of NHS Constitution Guiding Principles) Regulations 2015 have been made and will come into force on 27 July 2015. The regulations revise the existing NHS Constitution guiding principles which are set out in Part 1, Chapter 1 of the Health Act 2009.

Housing:

• Following the Welsh Government’s consultation on ultimately abolishing the right to buy and the right to acquire but reducing the maximum discount available in the interim, the Housing (Right to Buy and Right to Acquire) (Limits on Discount) (Amendment) (Wales) Order 2015 has been made and will come into force on 14 July 2015.
• Two sets of regulations have been made relating to the regime for registering and licensing private residential landlords of properties in Wales established by the Housing (Wales) Act 2014.

Human rights:

• The Grand Chamber of the ECHR has upheld the rejection by the lower court of the ECHR of a claim by an Estonian online news service. The news service had argued that the national court’s ruling that it was liable for defamatory comments posted by its readers was a breach of its right to freedom of expression, in violation of Article 10 of the European Convention on Human Rights (Delfi AS v Estonia).

Judicial review:

• The Court of Appeal has allowed an appellant defendant’s appeal against a decision of the High Court in which the defendant was ordered to pay the claimant £125,000 by way of damages for false imprisonment (Patel v Secretary of State for the Home Department).

Property and planning:

• The Upper Tribunal (Lands Chamber) has confirmed that a notice purporting to exercise the right to manage (RTM), served under section 79 of the Commonhold and Leasehold Reform Act 2002, does not have to specify the full extent of every aspect of premises affected by the RTM, but it must not include land that is not caught by the right (Miltonland Ltd v Platinum House (Harrow) RTM Co Ltd).

Public procurement:

• The General Court has handed down its judgment on appeals against a European Commission decision finding that the Municipality of Leidschendam-Voorburg had sold land below market price (The Netherlands, Gemeente Leidschendam-Voorburg Bouwfonds Ontwikkeling BV and Schouten & De Jong Projectontwikkeling BV v European Commisison).
•  The High Court has dismissed an action that challenged the operation of a framework agreement for the supply of locum doctors (Medicure Ltd v The Minister for the Cabinet Office).
• The Crown Commerical Service’s lean sourcing guidance for public sector buyers has been updated to take account of the changes made by the Public Contracts Regulations 2015.

Regulation and enforcement:

• The Law Commission has published its report, Simplification of Criminal Law: Public Nuisance and Outraging Public Decency, which sets out proposed reforms to the common law offences of public nuisance and outraging public decency.

Social services:

• A number of revised Court of Protection practice directions have been published and will take effect from 1 July 2015 following the President of the Family Division’s  judgments in Re X and others (Deprivation of Liberty) and Re X and others (Deprivation of Liberty) (No 2).
• The Welsh Government has launched a fund to replace the Independent Living Fund, which was closed down by the UK government.