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 e-mail.

Civil litigation:

• The Supreme Court has adjourned an appeal so the government can address them on whether the old costs regime infringed the ECHR (Coventry and others v Lawrence and another (No 2)).
• The Court of Appeal has considered the proper approach to the determination of whether a proposed new claim is time-barred, and whether proposed new claims arose out of substantially the same facts (Mercer Ltd and another v Ballinger and another).
• The High Court has:
  • held that, in the assessment of quantum following default judgment on liability, a defendant was able to advance arguments based on causation (Symes v St George’s Healthcare NHS Trust); and
  • considered the court’s power to extend a deadline that had been agreed in a consent order (Beacon v Hall and another).
• The government is seeking views on the Social Action, Responsibility and Heroism Bill, which sets out additional factors that the court must have regard to, in claims based on negligence or breach of statutory duty, when determining the steps that a person was required to take to meet a standard of care.
• The Law Commission has published its 12th programme of law reform. The programme will review areas of law such as contempt and insurance contract law and has been published following a consultation carried out last year.
• The Master of the Rolls has issued a statement rejecting the majority of the Civil Justice Council Costs Committee’s recommendations for new guideline hourly rates.

Education and social services:

• The Independent Educational Provision in England (Prohibition on Participation in Management) Regulations 2014 have been made, and will come into force on 1 September 2014.
• The High Court has refused a judicial review challenge to the decision of an independent review panel to uphold a decision to exclude a pupil from school (R (CR) v Independent Review Panel of the London Borough of Lambeth).
• The Adoption and Children Act 2002 (Commencement No 12) Order 2014 brought six sections of the Adoption and Children Act 2002 into force on 25 July 2014. The Adoption and Children Act Register (Search and Inspection) (Pilot) Regulations 2014 also came into force on 25 July 2014.
• The Court of Appeal has:
  • criticised a local authority for using an agreement with a mother and grandmother similar to a section 20 agreement to assume control over children’s living arrangements, without issuing care proceedings (Re W (Children));
  • dismissed a father’s appeal against an order made to establish whether the mother’s 13 year old daughter, who is not the subject of private law proceedings, should give evidence at a fact-finding hearing about allegations of domestic violence (Re B (Child evidence));
  • allowed a father’s appeal against a specific issue order permitting the mother to take their three year old daughter to Iran for a holiday (Re H); and
  • dismissed a local authority’s appeal against an extension of care proceedings beyond the statutory 26 week time-limit, for a period of more than eight weeks (M-F (Children)).
• The Family Court has considered the threshold criteria under section 31(2) of the Children Act 1989 and the children’s welfare at a composite hearing in accordance with the guidance in Re S (A child) (J and D (Fact-finding)).
• The Department of Education has published statutory guidance for local authorities, Promoting the education of looked-after children.

Employment and pensions:

• The government has:
  • laid three sets of draft regulations before Parliament to implement the new shared parental leave scheme under the Children and Families Act 2014;
  • published the draft National Minimum Wage (Consolidation) Regulations, and is now consulting on the draft regulations; and
  • announced the private supplier that, from late 2014, will deliver a new Health and Work Service to assess employees when they have reached four weeks’ sickness.

Environment:

• The European Commission has announced that it has decided that the UK electricity Capacity Market and Contracts for Difference schemes (part of the broader Electricity Market Reform package) are compatible with the state aid rules, and has also approved support for five offshore wind farms.

FOI and data protection:

• The European Court of Justice has given a preliminary ruling to the Netherlands that legal analysis is not personal data (YS (Judgment of the Court)).
• The First-tier Tribunal (Information Rights) has ruled that a council must disclose information on how it grades its employees’ positions (Bradford Metropolitan District Council v Information Commissioner and another).

Housing:

• The Court of Appeal has considered whether a residential private landlord had breached Article 8 of the European Convention of Human Rights when seeking a possession order, following service of a notice under section 21 of the Housing Act 1988 (McDonald v McDonald).

Judicial review:

• The Court of Appeal has held that the appropriate test for deciding if an application is totally without merit is whether the application is bound to fail (R (Grace) v Secretary of State for the Home Department).
• The High Court has held that an e-mail sent by a planning committee chairman giving instructions to his party members on how to vote on a proposal to amend a local plan strategy was not predetermination (IM Properties Development Ltd v Lichfield District Council).

Property and planning:

• The Town and Country Planning (Non-Material Changes and Correction of Errors) (Wales) Order 2014 comes into force on 1 September 2014, and primarily makes provision for section 96A of the Town and Country Planning Act 1990 to apply in Wales.
• Two sets of regulations amending prescribed forms under the Housing Act 1988 to reflect the transfer in England of the functions of rent assessment committees to tribunals and reflecting the changes in the tribunals’ remit in respect of mobile homes have, respectively, come into force and been laid before Parliament.
• The Mobile Homes (Written Statement) (Wales) Regulations 2014 and the Mobile Homes (Pitch Fees) (Prescribed Form) (Wales) Regulations 2014 will come into force on 1 October 2014.
• The High Court has considered the meaning of “dependants” in an agricultural occupancy planning condition which restricted who could occupy a farmhouse (Shortt v Secretary of State for Communities and Local Government and another).
• The Law Commission has launched its 12th Programme of law reform, and among the selected projects there are several that will interest property lawyers.
• The Land Registry has updated:
  • Practice Guide 16, Profits à Prendre, in order to clarify its practice when dealing with profits à prendre.
  • Practice Guide 18, Franchises to expand the information on certain aspects of the Land Registry’s treatment of franchises, which are rights or privileges granted by the Crown.
  • Practice Guide 75, Transfer under a chargee’s power of sale to include a new paragraph 3.2.10 which confirms that a disclaimer entry will be cancelled automatically on registration of a transfer under a power of sale.

Public procurement:

• The Supreme Court has examined the nature of “reasonably well-informed and normally diligent” tenderer test in its judgment on an appeal against a dismissal of a challenge to a public procurement procedure (Healthcare At Home Ltd v The Common Services Agency).
• The TCC has granted a declaration clarifying the matters an independent tester or certifier should take into account when considering whether to certify practical completion under a PFI contract (O’Rourke Construction Ltd v Healthcare Support (Newcastle) Ltd and others).

Regulation and enforcement:

• The Supreme Court has considered further issues arising out of its February 2014 private nuisance judgment in Coventry and others v Lawrence and another (Coventry and others v Lawrence and another (No 2)).
• The Court of Appeal has considered whether private nuisance claims are covered by the Aarhus Convention (Austin v Miller Argent (South Wales) Ltd).
• The government has updated its publication, Building Control Performance Standards, which sets the level of performance that local authorities and approved inspectors are expected to reach.