LOCAL GOVERNMENT LAWYER ISSUE 20
THIS ISSUE’S FEATURED ARTICLES:
Taking the heat out of intensification? School Exclusions: The New Regime Time-consuming FOI requests SWEET & MAXWELL
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Welcome to the latest issue of Local Government Lawyer from Sweet & Maxwell. I hope you all enjoyed the Olympics and the good weather, when it finally decided to arrive!
LOCAL GOVERNMENT LAWYER AUTUMN 2012
In this issue Philippa Jackson summarises and considers the judgment of a recent case of Hertfordshire County Council v Secretary of State for Communities and Local Government on the subject of intensification. Jennifer Thelen looks at the new exclusion regime within schools coming into force in September 2012. Lastly, Philip Coppel qC, examines the Freedom of Information Act 2000 and its involvement in the recent case of the IPCC v Information Consumer.
6 ARTICLE: TAkING THE HEAT OUT OF INTENSIFICATION?
Also within this issue we feature an interview with Rob Thomas, Vice President of the Market Development Group at Thomson Reuters about Serengeti, the new eBilling, matter management and performance analytics software tool. We also speak to Jonathan Gaunt qC who is co-editor of Gale on Easements which is due to publish later this year. Of course, you’ll find all the latest local government and legal developments from Westlaw UK and Lawtel. If you need any further information about the products and services referred to in this issue, you’ll find a list of account managers with contact details on page 26. Enjoy the issue.
IN THIS ISSUE: 4 LOCAL GOVERNMENT NEWS
9 ARTICLE: SCHOOL ExCLUSIONS: THE NEW REGIME 13 INTRODUCING SERENGETI 16 UPDATE FROM LAWTEL AND WESTLAW Uk 19 ARTICLE: TIME-CONSUMING FOI REqUESTS 22 LOCAL GOVERNMENT BOOkSHOP 24 PROFILE: JONATHAN GAUNT qC 26 YOUR SWEET & MAxWELL SALES CONTACTS
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NEWS
A CLEAR PERSPECTIVE ON MENTAL HEALTH Since the last issue of Local Government Lawyer two key reference works on mental health law have been published. In June the 5th edition of the Mental Capacity Act Manual published and the 15th edition of the Mental Health Act Manual published in September. Both titles are written by Richard Jones in a clear and readable style that is accessible to legal and non-legal professionals. The new edition of the Mental Health Act Manual incorporates all the key developments since the last edition published including amendments made to the Act by the Health and Social Care Act 2012. Also included is a consideration of a large number of new cases on the Mental Health Act including Coombs v Dorset NHS Primary Care Trust; R. (on the application of Sessay) v South London and Maudsley NHS Foundation Trust; R. (on the application of Sunderland City Council) v South Tyneside Council; DD v Durham County Council; DN v Northumberland Tyne and Wear NHS Foundation Trust Complementing the Mental Health Act Manual, the Mental Capacity Act Manual includes 14 new cases which have been covered in detail, including a significant number of cases on the deprivation of liberty safeguards. Other features include a consideration of the mental capacity required to consent to sexual relations, a new section on best and third party interests (for example needlestick incidents) and summaries of cases decided under the High Court’s inherent jurisdiction. For more information, visit sweetandmaxwell.co.uk/mentalhealth To order simply call 0845 600 9355, contact your local government account manager (page 26) or complete the order form enclosed.
WESTLAW UK UPDATE In early August, Westlaw UK launched a number of new enhancements to the service. Continuing on from the initial inline images launch in 2011, Westlaw UK recently added over 19,000 original Images in Documents for display within provisions of legislation, as well as in the body of full-text documents in case reports and journal articles.* You can view these images online, as well as have the ability to print, save and email images within documents, with all of them appearing as they should within the text. This lets you work more efficiently as you will no longer have to refer to the print version to locate images or tables, or print images separately and then re-sort in to the correct order. Images are available for all cases and journals from 2002 onwards and for legislation from 1987. Westlaw UK have also been rearranging the IDS Discrimination Law Handbooks to make it simpler for you to find all the information you need. The biggest change was the recent launch of IDS Discrimination at Work, which now incorporates all previous IDS discrimination titles, including; IDS Age Discrimination,
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IDS Sex Discrimination, IDS Disability Discrimination and IDS Race and Religion Discrimination, into one easy to read online volume. Finally, coming very soon, Westlaw UK will be launching a refresh of their pre-login website westlaw.co.uk. Westlaw UK have updated the look and feel and streamlined the content to allow you to get to the information, videos and training you want faster and with less effort. Please note that the refresh is just confined to the pre-login website and the format of the Westlaw UK legal research platform will not be changing. New journals: • Freedom of Information • Privacy and Data Protection New Sweet & Maxwell books & looseleafs: • Handbook of Business Tenancies • The Law on Financial Derivatives • Banks on Sentence • Derivatives: Law and Practice (looseleaf) • Handbook of Dilapidations *Images will not be available in official transcripts.
LANCE JOINS THE LOCAL GOVERNMENT TEAM Sweet & Maxwell are delighted to announce that Lance Thompson has joined the Local Government team. Lance previously worked with Thomson Reuters in Sydney as an account manager within the Bar sector for over 3 years. Originally a native of Adelaide, Australia, Lance came to the UK when he was two years old. But the lure of the Australian coast was too much and he moved back ‘Down Under’ in 2003. However, missing the British sense of humour, and of course the weather, Lance returned to the UK earlier this year. “We’re delighted that Lance has joined the team,” said John Shatwell, sales director, “Lance is highly regarded by both his colleagues and customers out in Sydney and brings the considerable skills and experience from his years in the legal market in Australia to local government here in the UK”. To find out if Lance is your new account manager please turn to page 26. You can contact Lance on 07825 725 008 or email him at lance.thompson@thomsonreuters.com
TWEET TWEET! Be sure to follow us at twitter.com/localgovlawyer and read daily updates about local government news of interest to you. We’ve also started a new Sweet & Maxwell feed of news from across all practice areas as well as news of upcoming webinars and conferences. Follow us at twitter.com/sweetandmaxwell. If you’re a Westlaw UK or Lawtel subscriber follow us at twitter.com/westlawuk or twitter.com/lawteluk for general legal news, updates and product enhancements.
SWEET & MAXWELL 2012 CONFERENCE CALENDAR 17 October
Autumn events in 2012 Over the last few weeks our account managers have travelled across the UK attending some key local government law events. In September the Solicitors in Local Government hosted their annual Welsh Conference in Cardiff. Anne Jones, Assistant Information Commissioner for Wales kicked off the conference by providing an update on information rights. Other topics covered during the day included rights of way, education, family law, prosecutions, local government, mental health, as well as consumer, property and planning law. To attend next year’s event you can contact Saira Tamboo, saira.tamboo@powys.gov.uk.
The Insolvency Law Conference 2012 London
24 October The Human Rights Law Conference 2012 (in association with JUSTICE), London
7 November The Planning Law Conference 2012 London
15 November The e-Disclosure Conference 2012 (in Association with West Legal Education), London
The EM LawShare Conference took place early in October at the East Midlands Conference Centre in Nottingham. The day started with a panel discussion involving law firms and local authorities discussing their experience on projects they have worked on together. This was followed by keynote speaker Tim Coulson who survived the London Underground bombings in 2005. The afternoon also included a number of breakout sessions focusing on a variety of areas. You can contact Fiona Pritchard, fiona.pritchard@freethcartwright.co.uk to attend next year’s event.
22 November
Later in October the North West Legal Consortium hosted their Annual Consortium Training Day. A number of workshops were provided by the partner firms involved during the day. Various topical issues and recent legal developments were covered including property, procurement and contracts, practical litigation, planning, highways and the environment, social services and employment. For more information or to attend next year’s event you can contact Beryl Heath, bh_nwlconsortium@btinternet.com.
The Criminal Law Review Conference 2012 London
CPD points were available for attendance at all events.
The Extradition and Deportation Conference 2012 (in association with JUSTICE), London
28 November The Judicial Review Conference 2012 London
12 December
All of our conferences are accredited by The Solicitors’ Regulation Authority and the Bar Standards Board. Attendance at any of these events could count towards your CIPD CPD record. For further information or to register, visit: sweetandmaxwell.co.uk/conferences-events
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Taking the heat out of intensification? Philippa Jackson 4-5 Gray’s Inn Square This article summarises and considers the judgment of Ouseley J in Hertfordshire County Council v Secretary of State for Communities and Local Government [2012] EWHC 277 (Admin). The case is likely to be of interest to planning practitioners, given the paucity of recent authority on the subject of intensification. Factual Background The Council served an enforcement notice on a scrapyard operator in respect of its scrapyard, alleging a material change of use and operational development without planning permission, caused by an increase in throughput and its effects. In 2006, the operator had replaced an old fragmentiser, and its throughput had increased significantly as a result. The effect of this increase in throughput was, in particular, that new buildings were built, lorries began to arrive at the yard at unsocial hours and significant volumes of dust were being created. The enforcement notice required the operator to limit monthly throughput, the days and hours of operation, and the number and hours of heavy goods vehicle use. It also required the buildings allegedly associated with the increased throughput to be demolished. A planning inspector rejected the Council’s argument that intensification had caused a material change of use, on the grounds that most of the significant effects were not caused by the increase in throughput. She rejected the Council’s arguments on
operational development because she found that the buildings in question were permitted development. The Council challenged the Inspector’s decision in the High Court, contending that the Inspector wrongly failed to consider intensification attributable to changes related to the scrapyard use, other than the increase in throughput. In other words, the Council’s case was that although the significant increase in throughput by itself was insufficient to constitute a material change of use, the planning consequences of that increase did amount to unlawful intensification. It also argued that the buildings were not permitted development because the scrapyard use should be regarded as falling outside the scope of an industrial process for the purpose of the Town and Country Planning (General Permitted Development) Order 1990. The scrapyard operator argued that a definable change in the character of the use of the land was required, and that the adverse impacts from the increase in throughput were not enough to establish a material change of use. >
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Taking the heat out of intensification? > The High Court Judgment Ouseley J rejected the Council’s arguments on both grounds. He observed that the main task of the Inspector was to decide whether the matters alleged in the enforcement notice constituted a breach of planning control. She could not be said to have misinterpreted the nature of the allegation in the Enforcement Notice, nor to have omitted from consideration material factors as formulated in the Notice or as contended for by the Council. Moreover he was not satisfied that factors not caused by the increase in throughput were material considerations that the Inspector should have taken into account. The concept of a material change of use by intensification requires an increase in scale of some or all of the activities on site. In other words, the increase has to cause the change of use. To the extent that effects are relevant, it is the effects from that increase which matter. Ouseley J went on to observe that, when judging whether an increase in activity has led to intensification of such a nature or degree as to constitute a material change of use, the level at which that activity could occur without giving rise to a change of use has to be ascertained. Any change in effect must therefore exceed that which could be caused by the permitted use: “I do not doubt that a combination of intensification and other changes in activities can constitute a material change in use; but what could be done without the need for permission would still have to be ascertained. That is how the Inspector approached it. Gas bottle explosions for example would have occurred anyway, as would the use of container lorries and the unsociable hours of the arrival of HGVs outside the site as part of the permitted use. They were not, or largely not, related to the increase in throughput, and so rightly were or largely were excluded from consideration. So even if effects could prove that a material change of use had occurred, they had to be effects generated by activities beyond those which did not require planning permission.” [37] Moreover it was clear from the authorities concerning a material change of use that the change relied upon has to result in a material change of the use of the land, and it could only do that by bringing about a definable change in the character of the use of the land. For this reason, while there was no difficulty in accepting that significant environmental effects, experienced on or off-site, might support the
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contention that a material change of use of land by intensification has occurred: “I do not see how an increase in lorries, for example, arriving in the road at unsocial hours, or creating problems at a junction a mile away, or an increase in noise or dust experienced off-site from activities on-site, is capable of itself or themselves, whatever the degree of increase, of constituting a material change of use on a particular site. It may be very relevant to the argument that there has been a material change in the character and use of land. For example, a specialist gas bottle disposal facility might be treated as a materially different use from a general scrapyard because of its noise impacts. But of itself, an increase in noise impact, however severe, cannot be a material change in the use of the land.” [41] Thus, the effects or impact are relevant only as evidence of a material change of use of land or a definable change to its character. The change in character is not defined by a change, however severe, in the effects of the use. Moreover in order to amount to a change of use, those effects must be generated by activities beyond those for which permission had been granted: see para.9 above. Finally, Ouseley J went on to add a note of caution “about attempting to broaden a material change of use by intensification as a substitute for proper conditions on planning permissions”, “the fact remains that no decided case has been shown to me in which a material change of use by intensification has been found to have occurred” [43]. Comment Ouseley J’s decision is helpful in its clarification that the effects of a use, however severe, are relevant only as evidence of a change of use, and cannot constitute a change of use in their own right. However it will be readily apparent that, on the basis of this analysis, the circumstances in which an intensification argument will succeed are extremely limited. The judgment therefore serves to reiterate the importance of imposing carefully-worded conditions on the grant of any planning permission. n
School Exclusions: The New Regime
Jennifer Thelen 4-5 Gray’s Inn Square
From September 2012 the coming into force of s.4 of the Education Act 2011 (the “EA 2011”) will mean that the existing Independent Appeal Panel (“IAP”) regime for challenging permanent exclusions from maintained schools will be replaced (only in England) with a “review” mechanism. The fundamentals have not changed. However, as stated by the School’s Minister, the government’s policy objective was: “[w]hen head teachers decide that they have no choice but to expel a persistently disruptive or uncooperative pupil that decision must not be undermined by an appeal process which can result in the pupil returning to the school against the wishes of the school and the leadership.” 1 This policy objective has been met by removing from the appeal process the ability to reinstate a pupil without the support of the school leadership. Statutory Framework At present, s.52 of the Education Act 2002 (“EA 2002”) makes provision for permanent exclusions from maintained schools in England and Wales. The EA 2011 introduces a new s.51A of that Act (“Section 51A”) which provides for the review of a decision to exclude a pupil to be conducted by a review panel. The powers of that review panel are limited, by statute, to upholding the decision to exclude; recommending that the governors (or other responsible body) reconsider the matter; or, if it considers that the decision of the governors (or other responsible body) was flawed when considered in the light of the principles applicable on an application for judicial review, quash the decision of the responsible body and direct the responsible body to reconsider the matter. The notable absence, of course, is of the power to reinstate a pupil.2 > LOC ALG OVL AW YER.CO.UK
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School Exclusions: The New Regime
REUTERS / Yuriko Nakao
> The Process of Exclusion The process of exclusion under s.51A and its implementing regulations, the School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012 (the “2012 Regulations�), is largely unchanged. The head teacher or principal of a maintained school, pupil referral unit or academy may exclude a pupil for a fixed period or permanently.3 Exclusions must be for a disciplinary reason.4 Following the exclusion, the parents must be notified of the exclusion, the reasons for the exclusion, the period of exclusion and the opportunity to make representations regarding the exclusion.5 Where the exclusion is permanent, or amounts to more than an exclusion for five school days in any term, the parents must be notified that the governing (or otherwise responsible) body will be meeting to consider the exclusion and that they can attend that meeting.6 A governing (or otherwise responsible) body,
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in turn, is empowered to decide, following a meeting of, and representations by, the relevant parties, whether or not a pupil should be reinstated, considering the interests and circumstances of the excluded pupil, including the circumstances in which the pupil was excluded, and having regard to the interests of other pupils and persons working at the school.7 For a fixed-term exclusion, the school has a duty to arrange alternative provision within six days. Where the exclusion is permanent, this responsibility passes to the local authority.8 Independent Review Panels Previously, parents could appeal the decision of a governing body that refused to reinstate their child to an IAP. The IAP could uphold the exclusion, direct that the pupil is reinstated or decline to reinstate a child for practical reasons, whilst noting that it would otherwise have been appropriate to give such a direction.9
Under the new rules, where a parent disputes the decision of a governing body not to reinstate a permanently excluded pupil, they can ask for this decision to be reviewed by an Independent Review Panel (“IRP”).10 The IRP’s powers are specifically defined as: “(a) uphold the decision of the responsible body; (b) recommend that the responsible body reconsiders the matter; or (c) if it considers that the decision of the responsible body was flawed when considered in light of the principles applicable on an application for judicial review, quash the decision of the responsible body and direct the responsible body to reconsider the matter.”11 Quashing The new statutory guidance, Exclusion form maintained schools, Academies and pupil referral units in England, April 2012, (the “2012 Guidance”) fleshes out how an IRP is to consider decisions of governing bodies in light of the “principles applicable on an application for judicial review”. When considering the governing (or otherwise responsible) body’s decision in light of the principles applicable in an application for judicial review, the IRP are instructed to apply the following tests: “Illegality—did the head teacher and/ or the governing body act outside the scope of their legal powers in taking the decision to exclude? Irrationality—was the decision of the governing body not to reinstate the pupil so unreasonable that it was not one a sensible person could have made?
Procedural impropriety—was the process of exclusion and the governing body’s consideration so unfair or flawed that justice was clearly not done?”12 The 2012 Guidance clarifies that “procedural impropriety” means not simply a breach of minor points of procedure but something more substantive that has a significant impact on the quality of the decision-making process. This will be a judgment for the IRP to make but the following are examples given in the 2012 Guidance of the types of things that could give rise to procedural impropriety: bias, failing to notify parents of their right to make representations; the governing body making a decision without having given parents an opportunity to make representations, failing to give reasons for a decision, or being a judge in your own cause. The 2012 Guidance highlights only three tests to encapsulate all of the “principles applicable in an application for judicial review.” However, judicial review is not confined to illegality, irrationality and procedural impropriety; presumably other principles applicable to judicial review, such as legitimate expectation or even improper motive, could also be engaged. An even more difficult question, however, is how are IRP panels going to cope with applying the principles of judicial review. The constitution of IRPs does not differ significantly from its predecessor, the IAP: a lay member (chair); a current or former head teacher; and a current or former governor.13 There is no requirement for any of the panel members to have a legal qualification, let alone expertise in public or education law. Without this, surely significant training and support will be necessary to enable an
IRP to properly understand and apply the principles of judicial review. The IRP can turn to the clerk of the panel for support. However, currently clerks are not required to be legally trained, although in practice many local authorities arrange for barristers and solicitors to serve as clerks. It is likely that this practice will only increase with the advent of the IRP. There is a risk that reconsideration will become a perfunctory task for a governing body, i.e. one that governing bodies would be reluctant to approach with an open mind and willingness to consider the criticism of their previous decision-making by the IRP. To avoid this, the IRP isgiven something of a stick in the form of a power to order that in the event of the pupil not being reinstated the school pay the local authority a sum of £4,000 in addition to any funds that move with the excluded pupil.14 However, the new approach is firm: a school cannot be forced to take back a pupil. Recommended Reconsideration Where the criteria for quashing a decision have not been met the IRP must consider whether it would be appropriate to recommend that a governing body reconsider its decision not to reinstate the pupil. The 2012 Guidance states that this should not be the default option, but should be used where the evidential or procedural flaws have been identified that do not meet the criteria for quashing the decision but the IRP believe justify a reconsideration of the governing body’s decision.15 The IRP does not have the power to order a readjustment or payment where it has only recommended that the governing body reconsiders their decision. >
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School Exclusions: The New Regime > Evidence While, as now, the IRP can hear new evidence, in determining whether or not the exclusion decision should be quashed the IRP may only consider the evidence that was actually before the governing body or which would or should have been available had the governing body acted reasonably. In effect the IRP can consider less evidence when exercising its power to quash than when exercising its power to uphold or direct reconsideration. This is likely to be yet another difficult exercise for the IRP. SEN Expert SEN pupils have disproportionately high rates of exclusion. They are also particularly vulnerable to the impacts of exclusion. The new legislative framework addresses this by means of the “SEN Expert”. Where present, the IRP must seek and have regard to the SEN Expert’s view of how SEN might be relevant to the pupil’s exclusion.16 The role of the SEN Expert is analogous to an expert witness, providing impartial advice on the relevance of special educational needs in the context and circumstances of the review. For example, the SEN Expert might provide advice on whether the school acted reasonably in excluding the pupil given his SEN. If the SEN Expert believes that the pupil’s SEN are relevant to the exclusion, he or she should advise the IRP on the nature of the contribution that this could have made to the circumstances of the pupil’s exclusion. Conclusion From a local authority’s perspective, there is much that has to be done to implement the new exclusion regime. Clearly, local authorities, and schools, will have to think seriously about how they will staff IRPs in light of analysis these panels are now being asked to make. For example, will clerks or chairs be required to have legal training? Or will local authorities devote scarce resources to providing legal advisers to the IRPs themselves? Local authorities will also have to compile a new list of panel participants—that of the SEN Expert. Finally, developing and delivering new and fulsome training for all IRP panellists and clerks on how to properly apply these changes should receive serious consideration by local authorities in the next few months. n
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REUTERS / Robert Pratta
1 “New Rules Restore Headteachers’ Power to Exclude Children”, April 13, 2012 Press Release, Department of Education. 2
Section 51A(4); The Education (Pupil Exclusions and Appeals) (Maintained schools) (England) Regulations 2002 provided for the power of reinstatement. (reg.6(6)(b)). These will be revoked on the coming into force of the School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012.
3 Section 51A(1)-(2); 2012 Regulations, regs.4; 13; 21). 4 The 2012 Guidance (as defined below) at para.12. 5 2012 Regulations, reg.5(1). 6 2012 Regulations, reg.5(3). 7 2012 Regulations at regs.6; 15; 24. 8 Education and Inspections Act 2006, ss.100-101. 9 Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002 (2002/3178), reg. 6(6). 10 Education Act 2002 s.51A (3)(c). 11 Education Act 2002 s.51A(4). 12 2012 Guidance at para.148. 13 2012 Regulations, paras.3(2), (11). See also 2002 Regulations Sch.1, para.2(2). 14 2002 Education Act, s.51A(6); 2012 Regulations, reg. 7(4); 2012 Guidance para.152. 15 2012 Guidance, para.150.
INTRODUCING
SERENGETI
REUTERS / Alex Domanski
In 2011 Thomson Reuters acquired Serengeti, the USA’s most widely used and highly rated eBilling and legal matter management system. We spoke with Rob Thomas, Vice President of Market Development Group at Thomson Reuters to discuss what solutions Serengeti can offer today’s local government legal professionals. LGL: What are the key benefits Serengeti has to Local Government lawyers? RT: While most systems have traditionally been either eBilling (bills and budgets) or internal matter management (contacts, deadlines, documents, key matter information, status, etc.), Serengeti has always been a single complete legal project management system including all major functions and all legal teams, both inhouse and outside counsel. As a result, it is the easiest system for lawyers to use to manage not only bills and spending, but also all of the other key information and documents associated with a legal project. In fact, Serengeti has a patent on a unique process that links the performance of required tasks by outside counsel (e.g. creating a budget, providing regular status updates, etc.) to the processing of bills – if outside counsel has requirements that are overdue, then they will receive a notice when they post their bill reminding them what they need to complete before their bill will be processed. This exclusive work flow solves a key issue with other systems – keeping information up to date, when much of the work comes from outside counsel. Serengeti efficiently gathers all relevant information and documents directly from the source, whether in-house or outside counsel. >
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SERENGETI
> Also, Serengeti provides legal departments benchmarking data that is unavailable in any other system. Serengeti permits users to run reports not only on their own data, but also comparing their data with that of the hundreds of other organisations on Serengeti. Serengeti spending and other data is made anonymous and aggregated so that organisations can benchmark their spending, rates, cycle times, etc. against those of their peers. As a result, for the first time a legal department can see not only what work it has, what it spends, and how the rates it pays its outside counsel have changed, but also how their workload, spending, and rates compare with those of other similar law departments. Unlike surveys which traditionally have been used to create comparisons, Serengeti analytics come from actual transactions between hundreds of companies and their thousands of law firms on Serengeti. LGL: Do your clients have to change their current billing software or install new software? RT: No, the beauty of Serengeti’s model is that there is no hardware or software to install, maintain, or upgrade. Serengeti accepts bills in any format from law firms and non-law firm vendors (accounting firms, e-discovery vendors, etc.), including the common LEDES standards, as well as bills in Word and Acrobat. LGL: What reduction in outside legal spend have your clients experienced? RT: Generally hard savings of 5-15% their first year, some much greater. There are also significant savings in time, and from using reports to send more work to those legal teams that are most efficient and effective. We are glad to provide to law departments who are interested in Serengeti several independent studies that analyze in detail the savings that specific legal departments have generated with Serengeti. LGL: Will overall reductions diminish over time? RT: Some savings diminish over time, as law firms become better at meeting their clients’ guidelines which are automatically enforced by Serengeti – rules regarding expenses, travel costs, changes in staffing, changes in hourly rates, etc. However, other types of savings tend to increase over time, including those that come from using Serengeti reports to improve the performance of legal teams, to assign more work to top performers, and to identify growing areas of legal exposure where preventive measures should be taken. LGL: How do you calculate your fees? RT: Our fees are based upon the amount of activity on the system as measured by legal spending, with automatic volume discounts at higher levels. Conversely, as companies use Serengeti to reduce their legal spending, they also save on the cost of the system. LGL: Do you receive any portion of adjustments to the law firm bill? RT: No, and we do not charge law firms to use the system. As noted above, unlike other systems Serengeti’s unique model makes it possible for a company to connect
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with all of their law firms, large and small, foreign and domestic, so that they can have all of their work and legal teams in one system. LGL: What support are you able to provide users in the UK and worldwide? RT: We currently support more than 150,000 users in 180 countries, and are adding more than 3,000 new users worldwide each month. We train and support users with online help, web seminars and live support. The Serengeti design is so intuitive that many users do not need training, but new users who do want training generally take about an hour. With more than 400 UK law firms and other vendors already connected to Serengeti, most legal departments find that their outside counsel are already using Serengeti with other clients. LGL: What type of organisations are using Serengeti? RT: Typically organisations using Serengeti have a significant amount of work with outside counsel, or need a better way to track the work that they are handling internally. Legal departments that are interested in saving both time and money as they manage their legal work, and who want to become more efficient, are excellent candidates for Serengeti. Over 500 organisations currently use Serengeti to manage their legal work with all of their law firms and other vendors worldwide (far more than any other system). We are proud of the fact that in addition to having some of the world’s largest law departments on Serengeti (Alcatel Lucent, American Express, Amazon. com, The Walt Disney Companies, etc.), there are also many law departments with one or two in-house counsel using Serengeti to save time and money. LGL: What is the funniest/strangest thing lawyers have billed their clients for? RT: Because of privilege and confidentiality, Serengeti does not review bills that are being processed by the companies and law firms on our system. I have heard of situations where lawyers bill more than 24 hours in a day – theoretically possible if you are travelling across time zones, but not likely, and probably not productive.
MATTER PROFILE: Each Matter Profile contains essential matter information that can be updated as the case progresses. The Matter Profile is analogous to a main case fi le in the paper world. However, Tracker automates maintenance of the Matter Profi le, dynamically updating spending information and providing a list of incomplete tasks that require the user’s attention, as well as due dates.
MATTER BUDGET: With Tracker, companies can require budgets from law firms, and the firms cannot post invoices to the matter until the budget has been submitted. Once budgets are in place, company users can monitor all budget information from one consolidated profile page, even if there are multiple vendors and firms working on the matter. In addition, spending to budget and detailed budget reports are prebuilt and available to run with just a few clicks. n
For more information about Serengeti please contact your account manager. You’ll find their details on page 26.
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UPDATE FROM LAWTEL AND WESTLAW UK The teams at Lawtel and Westlaw UK monitor legislation, news and journal sources, as well as judicial decisions at all levels, in order to deliver up-to-date information to local government legal professionals. Included here are recent case law and legislation updates taken from Lawtel and Westlaw UK, which help illustrate the diversity of subject matter we know you require.
REUTERS / Jason Lee
CASE SUMMARY 1 COVENTRY CITY COUNCIL -v(1) C (2) B (3) CA (4) CH (2012)
[2012] EWHC 2190 (Fam) In Coventry, the applicant local authority applied for care and adoption orders concerning a child (C). C’s mother (M) sought her immediate return. C had been removed from M on the day of her birth, M’s consent having been obtained under the Children Act 1989 s.20. M had significant learning difficulties, was vulnerable and lacked parenting instincts. The local authority conceded M’s Human Rights Act 1998 s.7 claim, acknowledging that s.20 consent should not have been sought immediately post-birth and that removal had not been proportionate to the risks then existing. Hedley J. held that C’s welfare could only be promoted by permanent substitute care. M could not provide for her, and would be unable to learn to do so. In the absence of another family member, the care order had to be made. C’s permanent care would be best secured by adoption; a placement order would be made. The court was satisfied that C’s welfare required M’s consent to be dispensed with. It offered guidance to social workers in respect of obtaining s.20 consent to removal immediately or soon after birth: (a) every parent had a right, if capacitous, to consent under s.20 to their child’s accommodation, and every local authority had the power to accommodate, provided it was consistent with the child’s welfare; (b) every social worker had a personal duty to be satisfied that the person giving consent had capacity; (c) the social worker had to actively address capacity, take into account
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the circumstances and consider questions raised by the Mental Capacity Act 2005 s.3, particularly the mother’s capacity to use relevant information; (d) if the social worker had doubts about capacity, no further attempt should be made to obtain consent on that occasion, and advice should be sought from the social work team leader or management; (e) if the social worker was satisfied that the person had capacity, they had to be satisfied that consent was fully informed, involving questioning whether the parent understood the consequences of giving consent, appreciated the choices available and the consequences of refusal, and was in possession of the facts material to giving consent; (f) if not all those questions were satisfied, no attempt should be made to obtain consent on that occasion, advice should be sought and the social work team should consider taking legal advice; (g) if satisfied that consent was fully informed, the social worker also had to be satisfied that the consent and subsequent removal was fair and proportionate; (h) in considering that, it might be necessary to consider the parent’s physical and psychological state, whether they had a solicitor, whether they had been encouraged to seek legal advice and/or advice from family or friends, whether removal at that time was necessary for the child’s safety, and whether it would be fairer for the matter to be subject to a court order rather than agreement; (i) if, having done that and, if necessary, having taken further advice, the social worker considered that fully informed consent had been received from a capacitous mother where removal was necessary and proportionate, consent could be acted upon; (j) local authorities might want to approach with care the obtaining of s.20 consent from mothers in the aftermath of birth, especially where there was no immediate danger to the child and where it was probable that no order would be made. The guidance was not intended to discourage the use of s.20 consent from capacitous parents where it was proper to seek agreement to immediate post-birth accommodation.
REUTERS / Amit Dave
CASE SUMMARY 2 XCC -v(1) AA (2) BB (3) CC (4) DD (BY HER LITIGATION FRIEND, THE OFFICIAL SOLICITOR) (2012) [2012] EWHC 2183 (Fam) In XCC, having determined that a wife (W) lacked capacity to consent to her arranged marriage to her husband (H), the Court of Protection determined the next steps. W had significant learning disabilities and suffered from various health conditions. Her parents were from Bangladesh but had lived in the United Kingdom for years in a close-knit Bangladeshi community. The marriage took place in Bangladesh. W returned to her parents’ home in the UK. H joined them after receiving his spousal visa. A forced marriage protection order was obtained. The court held that W lacked capacity. While accepting her parents’ devotion to her and that, in their culture, marriage was considered to be in her best interests, the judge found it not in W’s best interests to live with H. The parties proposed a compromise agreement whereby undertakings and assurances would be given without formal steps being taken to end the marriage. The issue was whether to accede to the proposal or grant a declaration of non-recognition. Parker J. held that it was not in W’s best interests for the marriage to continue. It was in breach of her personal rights; there were no positive features for her, and several disadvantageous ones exposing her to great risk. She lacked basic understanding of marriage. She had played little part in the ceremony and clearly did not understand the words of consent. Sexual relations would lack basic consent,
since W did not understand the differences between men and women. Pregnancy would likely cause her considerable mental and physical suffering but was clearly contemplated by H and by W’s parents. It was clearly a forced marriage created to further the interests of others, particularly H’s immigration status. Although there was no jurisdiction under the Mental Capacity Act 2005 to make a non-recognition declaration, the court had such power under the High Court’s inherent jurisdiction. The Act did not provide a complete statutory code. The provisions of Part I were not imported into the inherent jurisdiction evaluation, so the court did not have to apply s.4(7) (b), nor was it confined to making a decision dictated only by best interests considerations. It was entitled to grant a non-recognition declaration on the ground that W had not given consent. It had to do its best to be sensitive to cultural norms, but they could not be allowed to affect the a case’s outcome; that would implicitly recognise a non-consensual marriage. The undertakings offered would be difficult to police, and assurances had no legal effect: the court had to decide whether the person giving them was reliable. W’s family could not be relied upon. It was also doubtful that H could “contract out” of marital status. It was in W’s best interests to declare that the marriage was not recognised and for a nullity application to be issued. The local authority ought to have intervened as soon as it became aware of W’s marriage. W’s GP had been alerted to the marriage and potential pregnancy several times over many years, but there had been no communication with social services. Doctors and other healthcare or social work professionals had a duty to notify the learning disabilities team if they became aware that an incapacitated person might undergo marriage abroad and the communities behind such decisions needed to be told that sexual relations in such circumstances constituted a criminal offence. Guidance published by the Forced Marriage Unit in December 2010 should be widely disseminated. >
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UPDATE FROM LAWTEL AND WESTLAW UK
> LEGISLATION UPDATE SI 2012 No. 2089
SI 2012 No. 2031
SI 2012 No. 115
LOCAL GOVERNMENT, ENGLAND
LOCAL GOVERNMENT, PLANNING ENGLAND
EDUCATION, ENGLAND
The Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012
Neighbourhood Planning (Referendums) Regulations 2012
In Force: September 10, 2012
In Force: August 3, 2012
Enabled by the Local Government Act 2000, ss 9G, 9GA,105
Enabled by the Town and Country Planning Act 1990, Sch.4B, para.16, Planning and Compulsory Purchase Act 2004, s.38A(3)
The purpose of these regulations is to re-enact powers inserted into the Local Government Act 2000 by the Localism Act 2011, to clarify and extend the circumstances which local authority executive decisions, documents and meetings are to be made open to to the public.
The regulations make provision for the conduct of referendums held under the Town and Country Planning Act 1990. These regulations apply in relation to England only. The referendums question whether a neighbourhood plan, development order or a community right to build order is approved. These regulations are closely based upon the Local Authorities (Conduct of Referendums) (England) Regulations 2012 which deal with referendums on local authority governance arrangements.
The Education (School Teachers’ Appraisal (England) Regulations 2012 In Force: September 1, 2012 Enabled by the Education Act 2002, s.131(1) (2)(3), s.210(7) These regulations make provision for the appraisal of school teachers in the maintained sector and apply to performance management, reviews, prescribing revised, shortened and simplified arrangements for the appraisal of teachers, head teachers employed by governing bodies and also other teachers employed by local authorities (“unattached teachers”). n
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Time-consuming FOI requests REUTERS / Tyrone Siu
Philip Coppel QC 4-5 Gray’s Inn Square “Abuse of the right to information under s1 of [Freedom of Information Act 2000] is the most dangerous enemy of the continuing exercise of that right for legitimate purposes.” So said the Firsttier Tribunal in Independent Police Complaints Commission v Information Commissioner (March 29, 2012). This potential for abuse is a problem that had been anticipated in the White Paper which foreshadowed the FOIA.
The FOIA has three main mechanisms to deal with requests that are an “abuse of the right to information.” (1) A public authority is not required to comply with a request for information where the cost of compliance would exceed the limit set out in the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004. In the case of a local authority, the limit is currently set at £450. The Regulations provide that, in estimating the cost of compliance, a public authority may take account only of the costs it reasonably expects to incur in finding and extracting the information at the rate of £25 per hour. In short, a local authority is not required to comply with a request if it estimates that locating and extracting the information would take more than 18 hours. However, the time of working out applicable exemptions and where the public interest lies is not time that may be taken into account in reaching the figure of 18 hours. Provision is made in the regulations for cumulative costs of separate requests. (2) A public authority is not required to comply with a request for information if the request is “vexatious.” The Act does not provide any guidance as to what is meant by the term “vexatious.” The term is, however, familiar to litigators. The High Court has always had power to control those who use its processes. As part of that, the High Court has not allowed its processes to be used vexatiously. Those who had developed an addiction to litigation would be declared “vexatious litigants”, finding themselves precluded from having access to the courts. The body of case-law surrounding this practice is not particularly helpful in the context of the FOIA, not least because the Act confers a right of access which does not require an applicant to show any legitimate interest in the information sought.
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TIME CONSUMING FOI REQUESTS >
In Independent Police Complaints Commission v Information Commissioner (March 29, 2012) the applicant “A” made a request for information under FOIA to the IPCC for a copy:
The Tribunal said that, whilst useful “as a reference point.... an approach which tests the request by simply checking how many of the five ‘boxes’ are ‘ticked’ is not appropriate.” Thus, “a request may be so grossly oppressive in terms of the resources and time demanded by compliance as to be vexatious, regardless of the intentions or bona fides of the requester.” Similarly, “a request which by no means overwhelms the resources of the authority but which is clearly motivated merely by a desire to cause a nuisance may be judged vexatious without more.” So, too, a “modest request, viewed against a long history of similar requests showing no obvious serious purpose in the requester may satisfy s.14, even where, seen in isolation, it would fall far short of doing so.” And finally, “the same applies where the clear inference to be drawn from the requester’s conduct is that he intends a future campaign of pointless requests just to keep the authority occupied or to combine with others to circumvent the cost limits providing the exemption in s.12”.
“...of all IPCC managed investigation reports for the years 2008, 2009 and 2010...”
The IPCC’s appeal was upheld.
In the two years prior to making his request, A had already made 25 FOIA requests to the IPCC, which it had dealt with. Thirty-two days later, A made another request for information under the FOIA to the IPCC. This request referred to a specific IPCC management investigation report which A had previously sought under the FOIA and obtained in redacted form. A asked for a copy of the following in relation to that case:
With this decision, “vexatious request” has been restored to its natural meaning. It will, of course, remain the case that a public authority will need to make good its claim of “vexatious request”. But the formulaic factor approach which appears to have resulted from the Information Commissioner’s guidance can safely be dispensed with. n
(3) A public authority is not required to comply with a request for information if the request is identical or substantially similar to a previous request from that application with which the public authority has complied and a reasonable interval has not elapsed between the two requests. Again, the Act does not provide any guidance as to what is meant by “substantially similar.” It will be seen that the first of the three is indifferent to the applicant’s intentions in making the request, but that the second will be concerned to try and discern that intention. In an attempt to provide objectivity to the latter exercise, the Information Commission has for a number of years now had guidance on what is and what is not a “vexatious request.” The Commissioner, in his guidance on this, tells public authorities that they should ask themselves: - Could the request fairly be seen as obsessive? - Is the request harassing the authority or causing distress to staff? - Would complying with the request impose a significant burden in terms of expense and distraction? - Is the request designed to cause disruption or annoyance? - Does the request lack any serious purpose or value?
“1. Evidence considered as part of this case. 2. Case file notes. 3. IPCC case management plans. 4. Correspondence between the Met police and IPCC staff relating to this case. 5. Legal advice.” Relying on s.14(1) of the FOIA, the IPCC declined to deal with the two requests on the basis that they were vexatious. By Decision Notice the Information Commissioner decided: “...that the [IPCC] did not deal with the requests for information in accordance with the Act in that it inaccurately characterised the requests as vexatious and, therefore, incorrectly refused to comply with these requests under section 14(1)” The IPCC did not maintain that A’s interest in obtaining information about the working of the IPCC was without serious value or purpose. It said, that that value or purpose did not, however, lessen the burden of compliance upon the IPCC; nor does it justify the campaign that A had waged against the IPCC. Rather, the burden of complying with the two requests and the fact of their being made in the midst of his harassing campaign against the IPCC coloured those requests. Once the two matters of burden and harassment were considered collectively then these outweighed the claimed value or purpose of the requests. The IPCC said that the requests should be characterised as vexatious. The Information Commissioner, on the other hand, maintained that the five requirements in his guidance were not all met, and so contended that the request was not vexatious.
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REUTERS/Henry Romero
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PROFILE
Jonathan Gaunt QC Jonathan Gaunt QC is the joint head of Falcon Chambers and a past Chairman of the Property Bar Association. He also sits as a Deputy Judge of the Chancery Division. This is the 4th edition of Gale on Easements that he has co-edited. Could you tell us about your professional background and how you came to be a barrister at Falcon Chambers? I have been the Joint Head of Falcon Chambers since 1992 and the co editor of Gale on Easements since 1996. I came to join these Chambers because, when I was reading for my Bar Finals, I chose as an option the law of landlord and tenant, supposing that it would be useful whether I joined a common law or a Chancery set. Our lecturer was John Colyer, then a very successful junior practitioner, and, perhaps sensing some spark of promise, he kindly arranged for me to have a pupillage in his Chambers with Derek Wood. During my pupillage I was offered a seat. Our Chambers were then a small set of twelve members at 11 King’s Bench Walk but in the mid 1970s our then Head of Chambers had the perspicacity to recruit three young men who are now leading lights of the judiciary, namely David Neuberger, now President Designate of the Supreme Court, Kim now Lord Justice, Lewison and Paul, now Mr Justice Morgan and my co editor of Gale on Easements. Until their elevation to the Bench, they were my close colleagues and most frequent opponents.
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Why did you choose to specialise in property law? I specialised in property law partly fortuitously, because that is what my Chambers did, but also because it provided an interesting mixture of court and advisory work, which I found and find stimulating. One’s court experience, of course, informs the advice that one is able to give. Can you describe the most interesting case you have worked on? I suppose my most interesting cases have been those which have gone the distance to the highest court in the land. Arnold v National Westminster Bank concerned the scope of issue estoppel in the context of a rent review of a building on the site of which the Chancery Courts now stand in Fetter Lane. It was interesting because of the huge range of subject matter dealt with by the authorities which we had to research, which ranged from the trial in the House of Lords of the Duchess of Kingston for bigamy in 1776, a bastardy summons in the mid nineteenth century (unfortunately under the name of R v Gaunt), and a petition for divorce on the ground of cruelty to the
status of the Council of Gera, a tax case, a patent case, a wills case, a robbery, the validity of a mortgage, perjury, confessions extracted by police violence, shipping and planning. Other interesting cases in the House of Lords or Supreme Court have concerned whether the English Courts will specifically enforce a keep open covenant (Argyll Stores v Co operative Insurance Society), what is meant by adverse possession (Pye v Graham), the depth to which land is owned (Bocardo v Star Energy) and what is a house for the purpose of the Leasehold Reform Act (to which the answer is awaited in the autumn). What are the key recent developments that have affected the new edition of Gale on Easements? The last 4 years have seen a significant number of decisions concerning the law of easements, particularly rights of way, and under the Party Wall Act. They will all be discussed or referred to in the new edition. They have also seen the publication of a Law Commission Report and Bill proposing reforms intended to simplify the law of easements. There is, however, a growing problem, largely created by recent decisions of the courts, concerning rights of light which is embarrassing redevelopment in our cities and which deserves further examination by the courts and by the Law Commission. These are matters which will be discussed in the latest edition of Gale. How do you think the new edition will help its readers in their work? I and my co editor, Mr Justice Morgan, have, since we took over the work in 1996, tried to make it more accessible and of practical use to practitioners. It is the main practitioner’s work, recognised as such by the judiciary. It is comprehensive; it contains accounts of all the leading cases and it also contains discussion of points which we know from experience arise in practice but the analysis of which has not been established by decisions of the courts. Do you have any other writing projects on the horizon? I do not edit any other textbooks (although in the past I have contributed to the Landlord and Tenant Volume of two editions of Halsbury’s Laws) but have concentrated recently on producing talks and papers for various legal professional associations on topics of legal history including a legal analysis of the trial scene in the Merchant of Venice, the Star Chamber Decree (1616) which established the primacy of Equity, the story behind the Petition of Right (1628) and Charles II’s equivalent to Guantanamo Bay. Anyone interested can read those papers on the Falcon Chambers website. How do you manage to juggle your writing and your day to day work? How do I juggle writing and practice at the Bar? With difficulty. I did most of the work on the present edition of Gale in the period after Christmas when nobody seems to do any work anymore. How do YOU relax in my spare time? What spare time? My wife and I go to the theatre, the opera or cinema frequently and I have a little roof garden. When I really want to get away from it all, I go sailing.
GALE ON EASEMENTS Jonathan Gaunt QC The Hon Mr Justice Morgan
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PLANNING LAW CONFERENCE 2012 WEDNESDAY 7 NOVEMBER 2012, LONDON
Ensure you’re prepared for the important forthcoming changes with the implementation of the National Planning Policy Framework (NPPF) and hear the latest on: • The Government’s planning reform agenda • The CIL in practice: the local authority perspective • Section 106 agreements and the interaction with the CIL: the developer’s perspective • Recent environmental case law • Planning for legacy and heritage • Modes of appeal KEYNOTE SPEAKER: Mr Justice Lindblom, Justice of the Queen’s Bench Division of the High Court SPEAKERS INCLUDE: Steve Quartermain, Chief Planner, Department for Communities and Local Government Steve Ingram, Head of Planning Services, Huntingdonshire District Council CALL: 0845 600 9355 EMAIL: TRLUKI.orders@thomsonreuters.com VISIT: legalpd.com/conferences.php
EARN 6 CPD HOURS
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