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 Local Government email.

Adult social services:

• The High Court has refused to extend the limitation period under section 7(5)(b) of the Human Rights Act 1998 and rejected the argument that there is a presumption that the limitation period must be extended, if the claimant is an individual who lacks mental capacity and is reliant on another to bring the claim (AP v Tameside Metropolitan Borough Council).

Central government:

• The Supreme Court has upheld the judgment and declaration issued by the High Court in Miller and Santos to the effect that the government could not issue notice under Article 50 of the Treaty on European Union to withdraw the UK from the EU by way of the Royal prerogative, and would require authorisation of an Act of Parliament in order to do so. The Supreme Court also rejected appeals from the judgment of the High Court of Justice in Northern Ireland in McCord, holding that consent from the Northern Irish Assembly was not required in order for the government to issue notice under Article 50 (R (Miller and Santos) v Secretary of State for Exiting the European Union).
• The Welsh Government has published a White Paper outlining Wales’ key strategic interests and priorities as the UK government prepares to enter formal negotiations on the terms of its exit from the EU.
• The Court of Appeal in Northern Ireland has refused leave to appeal in the so-called “gay cake” case (Lee v McArthur and Ashers Baking Company).

Children’s services:

• The High Court has confirmed that an English court dealing with an adoption application concerning children authorised for adoption under a Scottish permanence order does not need to obtain the consent of the natural parents before making the adoption order (Re A and others (Children: Scottish adoptions)).
• The Family Court has authorised the use of an encrypted Skype video service to allow a father suffering from severe agoraphobia to participate in care proceedings (Medway Council v R and others (Participation of vulnerable parties)).
• The President of the Family Division has revised his practice guidance on the duration of without notice injunctive orders made by the Family Court or the Family Division.

Civil litigation:

• The Court of Appeal has:
  • dismissed a challenge to an order requiring a defendant to pay costs of clinical negligence proceedings, on the indemnity rather than the standard basis from the date when a pre-trial offer of settlement by the claimant was rejected by the defendant (Manna v Central Manchester University Hospitals NHS Foundation Trust);
  • rejected an appeal of a costs order made in respect of a boundary dispute settled by consent. The consent order provided for the costs of the claim and counterclaims to be determined by the court at the hearing listed for the trial (Powles and another v Reeves and others); and
  • refused an appeal against a summary judgment decision, and a request for a re-hearing, based on what was said to have been “a serious procedural or other irregularity in the proceedings in the lower court” (Serene Construction Ltd v Barclays Bank plc).
• The High Court has held that compliance with a CPR 7.7 notice requiring the claimants to serve or discontinue proceedings by a specified date had to be tested by the deemed date of service under CPR 6.14 and not by when the claimants complied with CPR 7.5 (Brightside Group Ltd and others v RSM UK Audit LLP and another).
• Jackson LJ has announced a final extension for written submissions to his review of fixed recoverable costs.

Commercial:

• The Court of Appeal has reiterated that the starting point for the court when considering the existence of an implied term to give effect to the parties’ intention is the express terms of the contract and the pleaded implied term must not contradict any express term (Irish Bank Resolution Corp Ltd (In Special Liquidation) v Camden Market Holdings Corp).

Education:

• The School Information (England) (Amendment) Regulations 2017 have been made and will come into force on 14 February 2017.

Employment and pensions:

• The draft Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 have been published. The regulations impose a duty on public authorities to publish annual gender pay gap information, as well as a reporting duty under section 149 of the Equality Act 2010, and are scheduled to come into force on 31 March 2017.
• The Welsh government has published the Trade Union (Wales) Bill 2017, to exempt devolved Welsh authorities from aspects of the Trade Union Act 2016.
• New figures suggest that the government has failed to recoup significant sums under the financial penalty regime for employers that lose tribunal cases.
• An employment tribunal has held that discriminatory transitional provisions in the Judicial Pensions Regulations 2015, which mitigated the effect of substantial compulsory pension reforms for older judges, were not objectively justified (McCloud and others v Lord Chancellor and Secretary of State for Justice and another).

Environment:

• The Environment Agency has announced that the operator of a waste mattress and bed recycling site has been found guilty in the Crown Court for failing to comply with waste exemptions and with an enforcement notice issued by the Environment Agency.

FOI and data protection:

• The FTT(IR) has held that:
  • information relating to a proposed new military honour could not be withheld by the Cabinet Office by way of the qualified exemptions in sections 35(1)(a) and 37(1)(b) of the Freedom of Information Act 2000 (Anthony Morland v Information Commissioner and another); and
  • the Department for Transport could rely on the exceptions in regulations 12(4)(d) and 12(4)(e) of the Environmental Information Regulations 2004 in order to withhold information relating to the HS2 high speed rail network (Thomas Crane v Information Commissioner and another).
• The Information Commissioner’s Office has published its response to the Health & Care Professions Council’s consultation on revised guidance on confidentiality.

Housing:

• The Court of Appeal has upheld a review decision by a local housing authority’s reviewing officer that had concluded that accommodation the authority had provided to the respondent, who had physical and mental disabilities, was suitable (London Borough of Hackney v Haque).

Local government:

• The draft West of England Combined Authority Order 2017 has been laid before Parliament. The order establishes the West of England Combined Authority and the majority of the order will come into force during 2017.

Property and planning:

• The High Court has upheld a judicial review challenge to a council’s decision to grant itself planning permission for a new football and athletics facility. The site was within the Green Belt. Despite concluding that the development would have an adverse impact on openness, the council had not considered whether there were “very special circumstances” to justify the development (as required by paragraphs 87 and 88 of the National Planning Policy Framework (R (Boot) v Elmbridge Borough Council).
• The House of Commons Library has published a briefing paper on tackling the under-supply of housing in England.
• The Welsh Government has published a report making recommendations to improve the deliverability of housing developments in Wales.

Public procurement:

• The High Court has held that the failure to award a contract to a tenderer whose tender ought to have been assessed as the most economically advantageous offer  is in itself a sufficiently serious breach of the contracting authority’s obligations to warrant an award of damages (Energy Solutions EU Ltd v Nuclear Decommissioning Authority).
• The General Court has dismissed an appeal by a tenderer against a decision of the European Parliament to not award it a procurement contract relating to the extension and renovation of one of its buildings in Luxembourg (Cofely Solelec, Mannelli & Associés SA and Cofely Fabricom v European Parliament).
• The European Commission has published a consultation document on setting up a proposed voluntary ex ante assessment mechanism for large infrastructure projects.