Local Government Lawyer Issue 22 by Thomson Reuters

LOCAL GOVERNMENT LAWYER REUTERS

ISSUE 22

THIS ISSUE’S FEATURED ARTICLES:

LOCAL GOVERNMENT CAN DO WHAT IT LIKES SHINING A LIGHT ON EASEMENTS THE PROPOSAL FOR REFORM OF JUDICIAL REVIEW: AN ANALYSIS SWEET & MAXWELL

THE EXPERTISE THE FLEXIBILITY THE eBOOK

WHITE BOOK 2013 YOUR SINGLE SOURCE FOR CIVIL PROCEDURE

OUT NOW P R I N T/ e B O O K / O N L I N E sweetandmaxwell.co.uk/whitebook

WELCOME

Welcome to the latest issue of Local Government Lawyer magazine from Sweet & Maxwell. In this issue Alec Samuels has written a discursive piece on local government. Martin Dixon writes about the Law Commission’s recent consultation paper and considers the matters addressed. Finally Michael Purdue analyses the review of the Judicial Review process. Keeping on the theme of Judicial Review we also speak to Jeffrey Jowell QC, co-author of De Smith’s Judicial Review which is due to be published by Sweet & Maxwell in June. We’ll also have a report on the survey which was taken at this year’s Solicitor’s in Local Government Weekend School conference in March. It provides an interesting insight into the use of mobile devices among local government legal professionals. And you’ll find all the latest local government and legal developments from our online research services 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.

LOCAL GOVERNMENT LAWYER ISSUE 22 in this issue: 4 LOCAL GOVERNMENT NEWS 6 ARTICLE: LOCAL GOVERNMENT CAN DO WHAT IT LIKES 9 ARTICLE: SHINING A LIGHT ON EASEMENTS 12 THE THOMSON REUTERS LOCAL GOVERNMENT TABLET SURVEY 2013 15 UPDATE FROM WESTLAW UK AND LAWTEL 18 ARTICLE: THE PROPOSAL FOR REFORM OF JUDICIAL REVIEW: AN ANALYSIS 20 BOOKSHOP 22 LOCAL GOVERNMENT LAW AT YOUR FINGER TIPS 24 PROFILE: JEFFREY JOWELL QC 26 YOUR THOMSON REUTERS SALES CONTACTS

Enjoy the issue,

HOW TO ORDER By telephone: 0845 600 9355 Online: sweetandmaxwell.co.uk Or contact your account manager (see page 26)

Jonathan Chilton Editor localgovernmentlawyer@thomsonreuters.com THOMSON REUTERS, 100 Avenue Road, London, NW3 3PF Designed by: Kirsty Guymer

YOUR 30-DAY SATISFACTION GUARANTEE Our customer promise means that if you are not totally satisfied with the goods you have ordered you are protected under our 30-day satisfaction guarantee. As long as the goods are returned within the 30-day period, in good resalable condition and according to our returns procedure, your order will be cancelled and you will owe nothing or will be refunded the price of the goods. Applicable in UK and Europe only. LOC ALG OVL AW YER .CO.UK

NEWS

WESTLAW UK UPDATE REUTERS/Navesh Chitrakar

In April we were happy to launch a new set of enhancements to our online legal research service, Westlaw UK. We’ve made big improvements to our search and relevancy ranking as Westlaw UK now offers suggested search terms as well as an improved relevancy ranking for your search results. Westlaw UK Insight has been received tremendously well and with our article database in rapid growth – we’ve also added a link to related journals from each article too. We had two new Precedent titles launch online and have another 12 being added throughout the rest of the year. Speaking of looseleafs, our online books and looseleafs library has again been growing! Along with recent launch of the European Lawyer Reference set, we’ve added 18 titles to our library, for full list of local government related titles turn to page 23. To make sure you keep up to date with which titles go live and when, you can follow Westlaw UK on Twitter @WestlawUK where we give live updates as additional Sweet & Maxwell books and looseleafs are made available online. Check out the Books and Looseleafs library section westlaw.co.uk/insidewestlaw-uk/books-looseleafs/books-library which has all the titles currently live and those launching

throughout 2013. The library also includes cover photos and pre-lims, which are court ready! We’re also delighted to announce the launch of some major enhancements to Westlaw UK Crime, meaning those of you who subscribe to this service can now enjoy a more seamless research experience than ever before. We’ve combined the content between Archbold and Criminal Law Week ensuring that sources, commentary and cases are available within a few clicks, speeding up your research and enabling an uninterrupted flow of information for case preparation. And finally we have launched our new addon, Reuters with News Room; an exciting and comprehensive news platform. You’ll be able to search by individual publication or create your own content set from the multitude of sources available. Through a network of journalists in over 190 offices and more than 130 countries, we spot developing trends and bring you the latest news as it unfolds worldwide. Our focus on business and political news means world-class coverage of companies, industries, economies and governments. For more information on these exciting new Westlaw UK updates contact your account manager (details on page 26).

TWEET TWEET! Be sure to follow us at twitter.com/localgovlawyer and read daily updates about local government news of interest to you. Also, check out our Sweet & Maxwell feed which tweets news from across all the practice areas in our portfolio as well as 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 news on product enhancement and general legal happenings.

LO C A L G OVE R N M E N T L AW YE R

New developments in Family Law New titles within our Family Law portfolio will be publishing soon. Todds’ Relationship Agreements is a new title from Sweet & Maxwell which focuses on all relationship-generated agreements including pre and post nuptial agreements, setting out the history, detailing the drafting issues and explaining what is and is not permissible with such agreements. The book contains precedents for contracts along with explanations of what should and shouldn’t be included as well as a discussion on the conflict of laws. The new title is co-authored by Richard and Elisabeth Todd. Richard is a barrister at 1 Hare Court and was lead counsel in the landmark Radmacher v Granatino case. He is also Recorder and prospective Deputy High Court Judge of the Chancery Division. Elisabeth is a member of the Chancery Bar Association and is now a civil Deputy District Judge.

Pensions on Divorce is written by an author team including Edward Hess, David Lockett and Fiona Hay. Edward is a District Judge at the Principle Registry of the Family Division. David is an actuary at the Actuaries for Lawyers and regularly lectures on pensions in divorce issues. Fiona is a barrister specialising in financial relief cases. For more information on these titles visit sweetandmaxwell.co.uk

Also publishing is the 2nd edition of Pensions on Divorce which explains one of the most technical and pitfall-strewn areas of family law practice. It looks at the law and procedure relating to the redistribution of pension rights on divorce. These include covering the different types of pensions, the powers and procedures of the court, the actuarial issues involved, and how to deal with the many different situations that arise. REUTERS/Lucy Nicholson

sweet & MAXWELL Conferences 2013 EMPLOYMENT LAW CONFERENCE 2013 WEDNESDAY, 11 SEPTEMBER 2013

PLANNING LAW CONFERENCE 2013 THURSDAY, 7 NOVEMBER 2013

THE HATTON, 51-53 HATTON GARDEN, LONDON EC1N 8HN

HALLAM CONFERENCE CENTRE, 44 HALLAM STREET, LONDON W1W 6JJ

CONSTRUCTION LAW CONFERENCE 2013 THURSDAY, 17 OCTOBER 2013

JUDICIAL REVIEW CONFERENCE 2013 THURSDAY, 21 NOVEMBER 2013

CHURCH HOUSE CONFERENCE CENTRE, DEAN’S YARD, WESTMINSTER, LONDON SW1P 3NZ

BLOOMSBURY HOTEL, 16-22 GREAT RUSSELL STREET, LONDON WC1B 3NN

HUMAN RIGHTS LAW CONFERENCE 2013 IN ASSOCIATION WITH JUSTICE THURSDAY, 24 OCTOBER 2013 BLOOMSBURY HOTEL, 16-22 GREAT RUSSELL STREET, LONDON WC1B 3NN

SEAN JOINS THE LOCAL GOVERNMENT TEAM Sweet & Maxwell are delighted to welcome Sean Duffy to the Local Government team. Sean joined earlier this year and has been covering for Anne Lawson while she’s been on maternity leave. Sean has worked for Thomson Reuters for four years in the Business of Law team which managed the production of titles including The Bar Directory and The Expert Witness Directories for England, Wales and Scotland. Sean was also involved in CPD conferences working with various government departments, law firms and barristers. Before joining the sales team Sean spent five weeks travelling around Goa and Mumbai in India. “Since joining the Local Government team, Sean has showed great determination to get to know his customers and provide the best level of service possible.” Said Mark Langsbury, team leader for Academic and Local Government. “He is a superb addition to the team and we look forward to working with him in the months to come.” To find out if Sean is your account manage please turn to page 26. You can contact Sean on 07789 435 448 or email him at sean.duffy@thomsonreuters.com LOC ALG OVL AW YER .CO.UK

Local government can do what it likes Alec Samuels The history of local government over the last hundred years or more, especially the legal history, is truly fascinating. The principal activities used to be buses, water, gas and electricity, now all privatised. To a greater or lesser extent many of the remaining activities are now outsourced, such as roads and care, and housing and education are gradually passing to other institutions. Distribution and collecting money on behalf of central government, revenue and benefits, has grown in importance, through even here the administration is often outsourced. Local government has transformed or morphed from the direct provision of services to the strategic direction and control and supervision of services. As a creature of statute the legal powers of the local authority were rather limited. The local authority had to act within the scope of the statutory powers, intra vires. The example from experience and from the law reports are legion: • No high wages for ideological or political reasons. • No subsidised bus fares. • No charging for pre-application planning advice. • No guarantees to commercial concerns. • No prayers at formal local authority meetings. • No paying of councillors.

Reflections upon Charles Terence Properties v Cornwall Council [2012] EWCA Civ 1439, [2013] 1 WLR 466, rehearsing the jurisprudence.

LO C A L G OVE R N M E N T L AW YE R

Local government can do what it likes

REUTERS / Jason Reed

Gradually Parliament has conferred wider and additional powers upon local government. The Local Government Act 1972 s 111 conferred subsidiary powers calculated to facilitate, or are conducive or incidental to, the discharge of any of their functions. The Local Government Act 2000 ss 2-4 conferred the promotion of well-being, the power to do anything which they consider is likely to achieve any one or more of the promotion or improvement of economic, social and environmental well-being. Finally the Localism Act 2011 ss 1-4 has conferred the general power of competence, the power to do anything that individuals generally may do. This does seem to be an exceedingly wide power for a public body, very “permissive”. Not surprisingly, in practice there are many practical constraints upon the local authority, despite the power of general competence. Many statutory duties fall upon the local authority which must be fulfilled, and the pressures in welfare and care and housing and education are very strong. Both in buying and in selling goods and services the local authority has considerable market bargaining power, but contracts must be made and this calls for real negotiating skills by the officers.

The professional officers tend to be of a cautious disposition, especially the legal officers: “Oh no, you cannot do that Sir”. The politicians may be more adventurous, but they may be ill-informed, lacking in responsibility and judgment, deaf to professional advice, motivated by ideology, oversensitive to the perceived views of the voters, especially if an election is on the horizon. Democracy is a fine concept, but does not always ensure the best decisions. The media are unreliable, but at least they usually bring matters of local moment to the attention of the public. Today in the current hard times there is no money, or the available money is reducing in real terms. Still far too large a proportion of the money comes direct from government; the abolition of ring-fencing has in practice not led to much increase in discretion. Access to business rates, the new homes bonus NHB, the subsidy towards a council tax freeze (in the context of a 2 per cent increase ceiling), and the occasional grant do give some flexibility, though so far not very significant. However, central government control and discretion remain strong. Regulations, circulars, guidelines LOC ALG OVL AW YER .CO.UK

Local government can do what it likes

> continue to pour out. The wishes and expectations and policies of the government of the day are usually very clear. Challenging government, refusing to go along with government, can be a dangerous step, running a real risk of financial penalty or other disadvantage sooner or later. Paradoxically local government theoretically has been obtaining more power, more discretion, more room to manoeuvre, yet at the same time finding less money available to be spent. Local Ombudsman Where there is alleged or apparent aladministration or failure in a service or failure to provide the service the Local Ombudsman is empowered to investigate and to make a finding and the local authority is expected to comply Local Government Act 1974 part III ss 23-34. The Local Ombudsman does not have jurisdiction over powers or policies. Judicial review or private law action Judicial review or private law action, remains a real restraint. The claimant will allege unreasonableness or disproportionality. There may be awkward EU directives or ECJ decisions, and human rights issues under the European Convention on Human Rights or ECHR decisions. Even if the local authority wins the case, as it generally does, there will be delay and costs and unwelcome publicity. In a small way Government is trying to ease the position by reducing the time within which an application for judicial review may be made, increasing the cost, and making it more difficult to obtain leave for an oral hearing; though there are implications for the rule of law. So legally the local authority is able to do “what it likes”. If challenged the local authority will need to show that it is acting in good faith, mindful of the duty to the citizens, acting beneficially for them, not in breach of any specific statute prohibiting or regulating what is being done, and all the proper procedures have been followed.

LO C A L G OVE R N M E N T L AW YE R

So the following activities all seem lawful: • Buying and selling land and dwellings, freehold or leasehold, on favourable or unfavourable terms. • Entering into an exclusivity arrangement. • Giving guarantees for commercial companies. • Entering into commercial contracts, e.g. waste recycling. • Running a crematorium. • Running an employment agency. • Setting up a local regeneration company. • Charging for local services. • Subsidising student fees and travel and maintenance. • Subsidising pensioner council tax. • Co-operating with other local authorities in joint ventures or joint administration. There is a clear distinction to be drawn between a lack of capacity on the part of the local authority, now extremely unlikely, and an abuse of that capacity, much more likely. Perhaps the action of the local authority could be described as arbitrary, capricious, eccentric, flagrant, rash, irrational, excessive, unreasonable, disproportionate, incompetent, careless, unduly favourable to some citizens, whatever. Perhaps the local authority did sell the land cheaply, or did not balance the various interests of the various citizens, or disregarded the market rates, whatever. All very unfortunate and regrettable, but, if proved, rectifiable and remediable by judicial review or private action. The local authority should have acted in a proper and not an improper manner. Bad bargain If the contract turns out to be unfavourable, a bad bargain, e.g. a school PFI contract, or a housing sale and leaseback contract, then the local authority cannot seek to escape from the contract by claiming that the contract is void or unenforceable on the basis that the local authority had no legal power to enter into the contract – an unattractive argument anyway. n

REUTERS/Arnd Wiegmann

Shining a light on easements Martin Dixon Case: HKRUK II (CHC) Ltd v Heaney [2010] EWHC 2245 (Ch); [2010] 3 E.G.L.R. 15 (Ch D (Leeds)) The Law Commission’s extensive proposals in respect of easements, covenants and profits, which included a Draft Bill, have already been the subject of comment in this Journal.1 It remains uncertain whether all, or any, of those proposals will reach the statute book, but that does not reflect at all on the quality of the work. Rather, it reflects the general apathy towards technical law reform in these times of economic difficulty and the political skulduggery that inevitably surrounds a Coalition Government. There have been few adverse comments on the Report, even though the section on covenants is controversial,2 and, generally speaking, the prevailing mood seems to be that reform is overdue and that the Commission’s proposals are a sound start. However, in that Report, the Commission also flagged that there were particular and additional problems with rights to light. As is well known, these are socalled negative easements in that they prevent the servient landowner from doing something on his or her own land, rather than permitting the dominant owner from acting on the servient land. As such, they are closely related to restrictive covenants and have the potential to paralyse the development of land, at least while the dominant owner decides whether to pursue injunctive relief or to extract a large sum in compensation for surrendering the easement.3 However, unlike covenants which necessarily spring from a contractual bargain, even 1 2 3

Law Commission, Making Land Work: Easements, Covenants and Profits à Prendre (2011) Law Com. No.327. See e.g. T. Sutton, “On the Brink of Land Obligations Again” [2013] 77 Conv. 17. P. O’Connor, “Careful What You Wish For: Positive Freehold Covenants” [2011] 75 Conv. 207. See the now infamous Midtown Ltd v City of London Real Property Co Ltd [2005] EWHC 33 (Ch); [2005] 1 EGLR 65.

if made some time ago, easements of light can be expressly or impliedly created. Of course, in one sense, implied grant (and reservation where it is possible)4 can be said to arise from a consensual transaction, but there are few who doubt that the four “methods” of implied creation can be a trap for the unwary. Further, prescription is certainly not based on a consensual transaction, whatever the theory might be, and so it is that a dominant owner can acquire a prescriptive right to light by doing nothing at all, save simply enjoying the light. Thus, whereas restrictive covenants also control land use and can hinder development, they cannot arise “accidentally” and the Lands Chamber of the Upper Tribunal has a well known jurisdiction to modify or discharge restrictive covenants if this is, broadly speaking, in the public interest.5 This places rights to light in a unique position and the Law Commission recognised this in its 2011 Report by indicating that it would turn again to the subject. That time has now arrived, and in February 2013 the Commission published a consultation paper on Rights to Light.6 Consultation is open until May 16, 2013 and the Commission is seeking views on a wide range of proposals, both general and specific. It is also seeking information and practical examples about the extent to which (if any) rights to light have hindered land redevelopment. Briefly, and without purporting to be exhaustive about the matters on which the Commission is seeking views, there are four main areas. First, the Commission 4 In cases of necessity or by reason of “common intention”. 5 LPA 1925 s.84. 6 Law Commission, Rights to Light: A Consultation Paper (2013) CP No.210.

LOC ALG OVL AW YER .CO.UK

> suggest that it should no longer be possible to acquire rights to light by prescription, although existing prescriptive rights would remain. It would be possible to acquire an easement of light by implied grant, but this assumes that the Commission’s 2011 proposal concerning implied grant has also been adopted: that is, that the four “methods” currently available should be replaced by a new statutory rule,7 intrinsic in which is a rejection of any role for s.62 of the LPA 1926.8 The rationale for the rejection of the acquisition of rights to light through prescription is not based on the fact that the current law is a mess—of course it is, but the 2011 Report also proposes a new single law for prescription. Rather, it is that the special and negative character of rights to light, their relevance in the modern built environment,9 the significant impact they can have on servient land and the potential subversion of the planning process, on balance, tend towards abolishing prescription for these easements. No doubt, not all will agree, not least because one could argue that the planning process already does too little to protect the amenity of land bordering planned developments and that, albeit not their primary purpose, rights to light do fill this void. Secondly, and of real practical importance, the Commission proposes a new statutory test for determining when a servient owner should be liable in damages for infringing a right to light instead of being subject to an injunction requiring demolition or preventing construction. This proposal emerges out of concern expressed by some interested parties—e.g. the Association of Light Practitioners—at the effect of the decision in HRUK II (CHC) Ltd v Heaney.10 In Heaney, the dominant tenement owner in the centre of Leeds (comprising the former headquarters of the Yorkshire Penny Bank) was granted a mandatory injunction requiring the servient tenement owner to cut back on their proposed building works. In a fully reasoned judgment, which does not appear to stray from existing principles,11 Judge Langan Q.C., determined that “it would be wholly wrong for the court effectively to sanction what has been done by compelling the defendant to take monetary compensation which he does not want”12 and he granted the injunction. The main point is, perhaps, that the defendant in Heaney clearly expected to pay 7 8 9 10 11 12

See Law Commission, Making Land Work: Easements, Covenants and Profits à Prendre (2011), para.3.45. The Commission’s view in 2011 was that the transformation of mere precarious rights into easements by reason of s.62 of the PA1925 is difficult to justify and should be abandoned: Law Commission, Making Land Work: Easements, Covenants and Profits à Prendre (2011), paras 3.52–3.70. Indeed, one could go further and say that it is not altogether obvious that the words of s. 62 should ever have had this effect, even though it is too late to turn the tide without statutory intervention. Whereas natural light might be desirable, it is not essential for productive land use. HRUK II (CHC) Ltd v Heaney [2010] EWHC 2245 (Ch); [2010] 3 EGLR 15. Shelfer v City of London Electric Lighting Company [1895] 1 Ch. 287, and see its approval in Regan v Paul Properties DFP No 1 Ltd [2007] Ch. 135. Heaney [2010] EWHC 2245 (Ch) at [86].

LO C A L G OVE R N M E N T L AW YE R

damages and was frustrated—that is, he expected to be able to buy himself out of the obligation to allow light, in much the same way that courts appear willing to allow defendants to buy their way out of binding restrictive covenants.13 Certainly, the trial judge had other ideas and was keener to protect the proprietary nature of the easement by granting an injunction. However, while it is true that Heaney makes it clear that an injunction is not a defunct remedy, it is not at all clear that reform should be built on the back of it. The suggestion seems to be that dominant owners are now keenly aware that an injunction is obtainable and that they might use this fact to bargain for a higher price for surrendering their easement. This, so it seems, is not well regarded because it curtails efficient development of the servient land by loading extra costs and delay, and is tantamount to using the mere existence of the easement to extract a price from the servient owner, rather than because the dominant owner actually wants to enjoy light. In fairness, perhaps these are real concerns and the Law Commission’s plea for information about how often rights to light have impeded development or added to its cost will make the position clearer. At present though, others might think that there is a problem with this argument. Easements are proprietary rights, usually legal in character, and their raison d’être is to impose restrictions on the servient land. It is not wrongful for a dominant owner to either wish to protect that right by an injunction, or to have it fully compensated for in damages, even if he or she does not wish to enjoy the light. A mortgagee is not denied its possessory rights because it does not “need” the money from the particular defaulting borrower and the holder of a valid option to purchase is not denied the remedy of specific performance because it is not in the public interest that he or she should buy the land or because the seller has made a bad bargain. These proprietary rights are enforceable because, simply, the right is held by the claimant. There is, at least to this author, something unappealing 13 See e.g. Small v Oliver & Saunders (Developments) Ltd [2006] 3 EGLR 141.

SHINING A LIGHT ON EASEMENTS

about seeking to limit the remedy available to a dominant owner vindicating his or her private law rights because it is inconvenient for the servient owner or somehow contrary to a wider public policy. Of course, if the Law Commission’s proposal results in greater clarity about when an injunction might be given, without implying that an injunction should be available less often—and I do not concede the point that Heaney made it less clear14 —then that is clearly to the good. Thirdly, and related to the above, the Commission proposes the introduction of a new statutory15 notice procedure whereby the servient owner who proposes to develop land would be able to serve a Notice of Proposed Obstruction on the dominant owner. The purpose of this

Lands Chamber of the Upper Tribunal beyond that which it proposed in its 2011 Report. In the earlier Report, the Commission proposed to give the Chamber *Conv. 88 a new jurisdiction to discharge or modify easements, but only those easements that came into existence after the jurisdiction was created. In this Consultation Paper, the Commission takes the view that, at least in respect of rights to light, this was over cautious. It now proposes, after examining the grounds currently specified in s.84 of the LPA 1925 and whether there is a potential human rights conflict, that the jurisdiction to discharge or modify could and should be extended to existing rights to light, whenever the right arose. It is self-evident that there is much that is unsatisfactory about the law of incorporeal hereditaments. This Consultation Paper, when read together with the 2011 Report, is a wellargued, well reasoned attempt to deal with some of the glaring deficiencies. That there is room for disagreement is no reason to stop the process of reform and the Commission will be fortified in its efforts if as many people as possible reply to the Consultation. In the meantime, one can but hope that at least some of the 2011 proposals can go forward into law. If anyone should doubt that they are needed, I recommend a perusal of the recent decision in Wilkinson v Kerdene Ltd (2013),16 where the Court of Appeal, as the (hopefully) final forum in a long-running dispute, had to untangle a complicated conveyancing history, deal with numerous disgruntled parties and interpret a wide range of documents in order to determine whether the burden of a positive covenant could run with the land under the Halsall v Brizell17 benefit and burden principle. It did, but how much easier would it be to have enforceable positive obligations provided they are registered against the servient land? n Martin Dixon

would be, in essence, to bring the matter to a head and to discover what action the dominant owner is prepared to take to vindicate his or her right, or whether he or she would surrender it. The purpose—which seems wholly laudable provided it is not tied explicitly or implicitly to a preference for a remedy in damages—is to prevent long running disputes with inconclusive negotiations which inevitably affect timely and efficient development. Finally, the Commission also proposes to enhance the jurisdiction of the 14 15

See, for example, CIP Property (AIPT) Ltd v Transport for London [2012] EWHC 259 (Ch), where the court had no trouble dismissing an application for an injunction to guard against a possible, uncertain future infringement of a possible right to light. In fact, the NPO would be against the estate in the land, rather than the dominant owner personally, and would be registrable as a local land charge. It could therefore bind third parties who purchased the dominant land.

First published in The Conveyancer and Property Lawyer, 2013, 2, 85-88

16 Wilkinson v Kerdene Ltd [2013] EWCA Civ 44. 17 Halsall v Brizell [1957] Ch. 169.

LOC ALG OVL AW YER .CO.UK

REUTERS/Albert Gea

THE THOMSON REUTERS LOCAL GOVERNMENT TABLET SURVEY 2013 What’s in your briefcase today? If you’re a lawyer in local government, there’s an even chance you’ll be using some kind of tablet device. With lawyers as susceptible as any professional to the charms of the tablet, and practice managers and IT directors increasingly looking to mobile devices to drive efficiency, we took the opportunity to quiz attendees at the SLG Weekend School about tablet computing – and what it could mean for their work. Goodbye desktop, hello tablet Since the introduction of Apple’s iPad in 2010, a surge of portable computer tablets has taken over the consumer marketplace. Approximately 68.4 million units of tablets were sold in 2011, over three times the previous year’s 19.4 million units. This year, sales are forecasted to increase by 85% to reach 126.6 million units. Consumers’ lifestyle and habits have been redefined due to tablets’ ease of use, affordability and portability1. The rise of tablets is changing the way consumers seek information, interact with their community and receive entertainment. Similar trends have also been seen in the professional landscape. Tablets are becoming an attractive alternative for portable computing in all types of business and organisation – and the law is no exception. 72% of US enterprises are using tablets today with 14% using them weekly2. The primary business uses for the tablet seems to be checking email (37%), surfing the web (30%), giving presentations (13%), creating content (9%) and taking notes (8%)2. This report examines ownership and usage of tablets in local government legal, through the findings of a questionnaire carried out by Thomson Reuters at the Solicitors in Local Government Weekend School conference. The questionnaire was completed fully by 58 people. We asked 7 questions about their use of tablets at work and at home, and their opinions on what would make tablets more useful for their practice. 1 Source: Spire research and consulting http://www.spireresearch.com/spire-journal/yr2012/q3/the-computer-tablet-industry-overflowing-with-opportunities/ 2 Source: Socialcast http://www.onlinemarketing-trends.com/2011/08/state-of-tablet-adoption-small-business.html#.UWQB5UqiCCg

LO C A L G OVE R N M E N T L AW YE R

Tablet SURVEY

Question 1: Do you own a tablet? This questionnaire showed that 44% of the respondents owned a tablet, leaving just over half without. (QUESTION 2-5 WERE ANSWERED BY TABLET OWNERS ONLY) Tablet owners

non tablet owners

Question 2: Do you have any of the following tablets: iPad, Android tablet, Kindle Fire? This survey showed that out of the 26 tablet users, the iPad was the most popular, with 85% owning this make. The Android tablet came in second with 27% respondents purchasing this product, and the Kindle Fire was only purchased by 8%.

iPad

85%

Andriod

27%

Kindle Fire

Question 3: Do you use it for work? 69% of our sample said “Yes”.

Yes

57%

69%

TABLET USERS

59% Question 4: What do you use it for? 65% of respondents said communication was its main function. 59% found that they used their tablet for drafting text, and 57% used it to research and reference legal material. Question 5: Is there anything that would make it more useful for your work? Some respondents felt that in order to gain the full benefit of using a tablet at work they would enhanced training – some suggested online training sessions available to download. Others highlighted that it would be beneficial to be able to access files off site, so work was more accessible in any location. Another feature that respondents felt would enhance tablets for work usage was the Windows operating system.

65%

Legal Research and Reference Drafting Text Communicating

LOC ALG OVL AW YER .CO.UK

THE FOLLOWING QUESTIONS WERE ONLY ANSWERED BY NON TABLET OWNERS Question 6: If you did own a tablet would it be a major benefit in your role?

Yes

83% of these respondents said “Yes”.

83%

Question 7: If you did own a tablet what would you use it for? As the diagram below highlights 86% of non users said they would use their tablet mostly for researching and referencing legal information. 78% said that communication would be a key reason for using a tablet, and 64% said they would use it to draft text. A few respondents also commented saying that a tablet would also allow them to easily access the internet and their email accounts.

86%

Legal Research and Reference

78%

NON TABLET USERS

64%

Communicating

Conclusions There is a clear appetite for local government lawyers to be able to use a tablet device within their work. The majority of tablet owners do use their tablets for communicating, drafting text and research. Interestingly, however, a greater percentage of people without tablets imagined they would use their tablet for these purposes. More and more lawyers are clearly coming to desire the same technology in their professional lives as they have access to in the consumer sphere. Within the last 12 months, we have seen a strong development with the tablet market, with more manufacturers introducing their own offerings with a range of prices and features - offering plenty of food for thought to those responsible for IT and public sector legal. To discuss anything you’ve seen in this article, contact desmond.brady@thomsonreuters.com or jonathan.chilton@thomsonreuters.com

Commmunicating LO C A L G OVE R N M E N T L AW YE R

Drafting Text

CASE SUMMARY

SL v

WESTMINSTER CITY COUNCIL (2013) [2013] UKSC 27 In SL, the appellant local authority appealed against a decision that it was required to provide the respondent failed asylum seeker (S) with residential accommodation. S, an Iranian national, had arrived in the United Kingdom in 2006. His claim for asylum was refused. He became homeless and was admitted to a psychiatric hospital where he was diagnosed as suffering from mental health problems. Following his discharge, the local authority provided him with continuing assistance, including supervision by a social worker (W), but considered that he was not in need of care and attention to the extent of the provision of residential accommodation under the National Assistance Act 1948 s.21(1)(a). S’s claim for judicial review of that decision was dismissed. However, the Court of Appeal held that the local authority should have considered whether it would be reasonably practicable and efficacious to provide care and attention without providing accommodation. The Supreme Court considered whether S was in need of “care and attention” and, if so, whether it was “otherwise available to him” than by the provision of residential accommodation under s.21(1)(a). Their Lordships held that the local authority was entitled to conclude that S was not in need of care and attention for the purposes of s.21(1)(a). The importance of the services provided to those with mental health problems was not in question. However, that did not require that the services fell within local authorities’ responsibilities under s.21(1)(a). That had to depend on the true construction of the section’s words in their context. It would be wrong to elevate the authoritative guidance given in R. (on the application of M) v Slough BC [2008] UKHL 52, [2008] 1 W.L.R. 1808, that care and attention involved “doing something for the person which he cannot or should not be expected to do for himself”, into a compendious statement of all the elements of the “care and attention” or “looking after” concepts. What was involved in care and attention had to take colour from its association with the duty to provide residential accommodation. It could not be confined to care and attention that could only be delivered in specialised residential accommodation, but the fact that accommodation had to be provided for those who needed care and attention strongly indicated that something beyond mere monitoring of an individual’s condition was required. The local authority was also entitled REUTERS/Toby Melville to find that the care and attention provided by W was “available otherwise than by the provision of accommodation under [s.21]”. The services were not accommodation-related; they were entirely independent of S’s accommodation, however provided, or his need for it. They could have been provided in the same place, in the same way, regardless of whether S had accommodation of any particular type. The Court of Appeal’s contrary view depended on reading “available” as meaning not merely available in fact, but as implying also a requirement for the provision of care and attention to be “reasonably practicable and efficacious”. Even the limited services provided by W could not be expected to achieve their objectives unless combined with a degree of stability in S’s living arrangements. However, such an indirect link was not justified by the statutory language; the need for accommodation could not in itself constitute a need for care and attention. The analysis might not be straightforward in every case; it was best left to the judgment of the local authorities concerned and would not normally involve any issue of law requiring the court’s intervention.

LOC ALG OVL AW YER .CO.UK

UPDATE FROM LAWTEL AND WESTLAW UK

RE C (A CHILD) (2013) [2013] EWCA Civ 431

> In Re C, the appellant father (F) appealed against the refusal of permission to be joined as a party and permission to oppose an adoption order to be made for his son (C), and against a subsequent final order for adoption. F had had a sexual relationship with the mother (M). C was born; because M could not care for him, he was taken into care and fostered. When F questioned M she denied his paternity. Two years later F resumed the relationship with M and they had a second son. F became aware of adoption proceedings relating to C. A DNA test confirmed his paternity. F applied for permission to be joined in order to oppose the adoption proceedings. The judge refused F’s applications, finding that C had already had to deal with the move to his adoptive parents from foster care and that further delay caused by the inevitable requirement for F to undergo assessments was contrary to C’s welfare. That outweighed C’s right to be brought up by his natural father and with his brother. F appealed; there was a five-week delay in obtaining the transcript, required for F’s counsel and to obtain legal funding. A final adoption order was made, without notice to F, while he waited for his application for permission to appeal to be heard. F submitted that the judge had erred in her assessment of the factors in the Adoption and Children Act 2002 s.1(4)) and s.1(4)(f), and she had been disproportionately influenced by the possibility of delay and by F’s immigration status. Their Lordships held that F had never had a relationship with C, indeed had never even seen him. Furthermore C had been with the adoptive parents for two years and it was inappropriate to disturb that relationship. The judge had displayed no error of law or approach. Her exercise of discretion was not flawed and she had not been unduly influenced by other factors. With regard to F’s rights under the European Convention on Human Rights 1950 art.8, a judge who properly applied s.1 of the 2002 Act, as the judge had done, would normally also comply with art.8. The decision rendered the appeal against the final order academic, but it was quite clear that, even as a non-party, F had locus to challenge it. Whether he would have succeeded was moot, but it was difficult to justify the making of the final order in the knowledge that permission to appeal was pending. In every case where there was an application to the Court of Appeal for permission to appeal against a placement order, or other consequent order, the following steps had to be taken: (i) the appellant’s notice had to be filed as soon as possible; (ii) the appellant’s advisors had to carefully consider including any appropriate application for a stay or other interim relief; (iii) if a transcript of the appealed judgment was not available, a note of the judgment, even if unapproved, was required and the transcript had to be ordered immediately; (iv) the court appealed from had to deal with the application for a transcript immediately; (v) respondents to any application consequential upon the placement order had to immediately inform both the appellant and the Court of Appeal of (a) the making of the application, and (b) the date(s) of any hearing. Further, a change was urged to the current practice of waiting for a transcript before putting a completed bundle before a Lord Justice as it was inappropriate in cases where delay could not be afforded.

LO C A L G OVE R N M E N T L AW YE R

LOCAL GOVERNMENT - WALES SI 2013/1050 (W.112) The Local Authorities (Joint Overview and Scrutiny Committees) (Wales) Regulations 2013 In Force: May 24, 2013 Enabled by – Local Government (Wales) Measure 2011, s.58(1), s.172(6) Part 6 (sections 58 to 80) of the Local Government (Wales) Measure 2011 (“the Measure”) makes provision about overview and scrutiny committees of local authorities (county and county borough councils) in Wales. These Regulations, which are made under s.58 and s.172(6) of the Measure, permit two or more local authorities to appoint a joint overview and scrutiny committee to make reports or recommendations to any of the authorities or their executives about matters affecting their areas. HEALTH, LOCAL GOVERNMENT – WALES SI 2013/898 (W.102) The National Health Service (Pharmaceutical Services) (Wales) Regulations 2013 In Force: May 10, 2013 Enabled by – National Health Service (Wales) Act 2006, ss 80, 83, 84, 86, 88, 104, 107, 110, 115, 116, 118, 203(9)(10) and 205 These Regulations revoke and replace the National Health Service (Pharmaceutical Services) Regulations 1992 as those Regulations which, in Wales, govern the provision of pharmaceutical services as part of the National Health Service under Part 7 of the National Health Service (Wales) Act 2006.

Whether you practise, support, create or enforce the law, legal solutions from Thomson Reuters deliver best-of-class products and services like Sweet & Maxwell, commentary Westlaw UK, Lawtel, Thomson Reuters Elite and a series of software solutions including Serengeti, Solcara and FloSuite Legal. Plus, our portfolio now includes Practical Law – the leading provider of legal know. Intelligently connect your work and your world with our content, expertise and technologies. See a better way forward at thomsonreuters.com/ukirelandlegal

Legal Solutions from Thomson Reuters REUTERS/Neil Hall

PUBLIC LAW

REUTERS/Luke Macgregor

PLACE YOUR ORDER TODAY VISIT sweetandmaxwell.co.uk EMAIL TRLUKI.orders@thomsonreuters.com (UK) CALL 0845 600 9355 (UK) +44 (0)1264 388560 (INTERNATIONAL) QUOTING REFERENCE 1160902A

The leading forum for information and debate in the constantly evolving area of law and government. The latest release includes articles on: • Privatising fishing rights: the way to a fisheries wonderland? • Proportionality: the way ahead? • Children in ‘Care’ After YL – The Ineffectiveness of Contract as a Means of Protecting the Vulnerable • Guarding the guardians: the chief executive of the UK Supreme Court • “Deliberative voting”: reforming constitutional referendum democracy • A Ladder of Legal Participation for Tribunal Users • Economic and social rights adjudication: developing principles of judicial restraint in • South Africa and the United Kingdom • Academic Freedom in Israel – Law, Practice and Critical Issues

The proposals for reform of judicial review: an analysis Michael Purdue Introduction On November 19, 2012, Chris Grayling both issued a press release and a Ministerial Statement announcing a review of the Judicial Review process. On the same day, David Cameron speaking at CBI annual conference invoked the spirit of the Second World War which he considered was needed to combat delays that were holding the economy back. Among the measures aimed at speeding up development and boosting economic growth was the reform of judicial review. Both Grayling and Cameron listed three necessary changes. They are: • First, the reduction of the time limit in which challenges have to be made; • Secondly, restricting the opportunities to challenge refusal to give permission for an application for JR to start; and • Thirdly, increased fees. However, the detailed proposals had to wait for the consultation paper issued on December 13, 2012. These proposals are now set out in the Green paper entitled “Judicial Review: proposals for reform” but are more qualified than the war rhetoric of the Prime Minister in that the tightening of the time limit is only to apply to procurement and planning decisions. The general case for change The basic argument is that there are far too many applications for judicial review and that the weak or frivolous cases need to be filtered out in order to provide the right conditions to promote growth and stimulate economic recovery. On the issue of growth, the consultation paper argues that there has been a significant growth in the use of Judicial Review to challenge decisions of public authorities, in particular over the last decade. In 1974, there were 160 applications for Judicial Review, but by 2000 this had risen to nearly 4,250, and by 2011 had reached over 11,000. However the paper accepts that the increase has mainly been the result of the growth in the number of challenges made in immigration and asylum matters. In 2011, these represented over three quarters of all applications for permission to apply for Judicial Review and the Crime and Courts Bill, currently before Parliament, will, if enacted, allow for all immigration, asylum or nationality Judicial Reviews to be heard in the Upper Tribunal, and will also allow the Lord Chief Justice to deploy judges more flexibly across the courts and tribunals to respond more quickly to changes in demand. In fact, as has been pointed out, if the numbers of immigration and asylum cases are put aside, the number of “other applications” have remained static since 2005. Indeed it can be argued that the figures produced by the green paper suggest that present system by which permission has to be obtained before an application for judicial review can proceed, is working quite well in filtering out the hopeless cases. Thus it seems that only a small number of applications per year proceed to a final hearing and in 2011, there were fewer than 400 Judicial Review disposals following a substantive hearing. At para.31 of the green paper it is stated that of the 7,600 applications for permission considered by the court in 2011, only around one in six (or 1,200) was granted. However if the immigration and asylum cases are discounted the correct figure is a one in four success.1 Of the applications which were granted permission, 300 were granted following an oral renewal (out of around 2,000 renewed applications that year). An “oral renewal” is where the paper hearing is adjourned to an oral hearing. This last figure would suggest that there is a clear need for the right to ask for an oral renewal of the application. Also the paper accepts that in 2011, 396 applications for Judicial Review were disposed of, and the claimant was successful in 174 of them. This is a quite a reasonable percentage and the paper then falls back on the very spurious argument that even if the application is successful, it may only result in a pyrrhic victory with the matter referred back to the decision-making body for further consideration in light of the court’s judgment. No figures are given as to when the exactly the same decision is given and this argument is really irrelevant as the overriding purpose of judicial review is to ensure that decisions are taken legally not to determine the result. As Mark Elliot has forcefully put it: “… every victory—whatever the eventual outcome for the individual—is a victory for the rule of law.”2

more resources could be put to speeding up the system. Money could be spent to save money. Finally, the green paper considers that the immediate threat of judicial review has an unduly negative effect on decision makers. This is really an attack on the whole basis of judicial review and it can be argued that the threat of judicial review can improve the quality of decision making. In the 2006 edition of the Government paper “The Judge over your shoulder”,3 the Cabinet Secretary describes judicial review as “a key source of guidance for improving policy development and decision-making in the public service”. The consultation paper at para.34 asserts that judicial review claims impose substantial costs on public bodies both by the costs of having to defend proceedings and also by causing delays on public projects. Yet as many commentators have pointed out the green paper contains no evidence as to the economic impact of judicial review of planning and other decisions. The proposed changes Time limits The present law on time limits is a complex and rather ill matched combination of the Civil Procedure Rules and the Supreme Court Act 1981. However, the courts have interpreted the law flexibly. So, while even if an application for leave is made within three months, permission can be refused if it has not been made promptly (though decisions of the European Court of Justice have effectively disapplied the need to bring the claim promptly in a European Union law context because of the need for certainty) unless there is good reason for the delay. Equally if an application is made after three months it still can be allowed as long as personal hardship or detriment to good administration is not perceived. This flexibility is in sharp contrast to section 288 of the Town and Country Planning Act 1990 where there is no need to get leave but there is a fixed time table of six weeks to bring the application.

The green paper more persuasively points out that it does take a long time to weed out weak or hopeless cases but if this is such a substantial cost to public finances, then

The Government has recognised that a general reduction in the time limit for bringing proceedings

1 2

3 See www.tsol..gov.uk/Publications/Scheme Publications/judge.pdf [Not accessible February 20, 2013]

See the Public Law Project’s response to the consultation paper at para.19. See his blog on http://ukconstitutional law.org/blog/ [Not accessible February 20, 2013].

LO C A L G OVE R N M E N T L AW YE R

may constrain the time available to seek a negotiated settlement, and that this may potentially be counter-productive. They acknowledge that it carries a risk that parties might be encouraged to circumvent the Pre-Action Protocol and move immediately to litigation potentially leading to further growth in the use of Judicial Review. So it is only with regard to procurement cases and planning cases that changes are proposed. In the case of procurement decisions it seems that while most challenges have to be brought within 30 days, under reg.47D of the Public Contracts Regulations 2006,4 there are situations where this does not apply and it proposed that in such cases in bringing judicial review proceedings a 30-day time limit should equally apply. In the case of planning determinations by a local planning authority, there of course exists a route by which the applicant can appeal on the merits under s.78 and then (by way of s.288) the validity of the appeal decision can be challenged by aggrieved parties on a point of law within six weeks. The initial right to appeal of course only applies to the applicant and in R. (on the application of Taylor) v Maidstone BC5 it was held that because of the availability of this route the applicant cannot use judicial review to make a challenge to a refusal of planning permission when the real issue was one of merits. Most recently in the Scottish decision in Wallace v East Lothian Council,6 the Court of Session held that where the petitioner had a right of appeal to the Secretary of State, even where the challenge was on a point of law (failure to take into account material considerations), this remedy should be used and not judicial review. However, the lack of a third party right of appeal means that the only way an objector can challenge the legality of the decision is by way of judicial review. Such a challenge must be on a point of law but it is undoubtedly the case that many challenges amount to an appeal on merits dressed up as a point of law with the aim of publicity or causing delay. It is these types of applications for judicial review that need screening out. It is on this basis that in the case of planning decisions, it is proposed that the application for permission to seek judicial review must be made within six weeks as is the case of s.288 challenges. This change is in effect what some members of the judiciary have been trying to impose by analogy. Laws J. (as he then was) concluded in R. v Ceredigion CC Ex p. McKeown7 that it was nearly impossible to conceive of a case in which leave to move for judicial review would be granted to attack a planning permission when the application was lodged more than six weeks after the planning permission had been granted. This view was knocked back by Lord Steyn in R. (on the application of Burkett) v Hammersmith and Fulham LBC (No.1)8 who stated that: “the inference has sometimes been drawn that the three months limit has by judicial decision been replaced by a ‘six weeks rule’. This is a misconception. The legislative three months limit cannot be contracted by a judicial policy decision.” However, in Finn-Kelsey v Milton Keynes,9 Keene L.J. still argued that the s.288 sixweek time limit may often be of some relevance, when a court is applying the separate test of promptness on the grounds that s.288 emphasises the need for timeliness in challenging planning decisions. It may also be noted that the Planning Act 2008 creates a strange hybrid under which permission for major infrastructure projects can be challenged by judicial review but a time limit of six weeks is imposed. However, the consultation paper proposes that some flexibility is to be retained. The paper states: “58. We recognise that in some cases the parties may need more time to take legal advice and consider their position. The Courts have powers to allow matters to be brought out of time where it is just and equitable to do so. In determining whether it is in the interests of justice for permission to be granted, the Court will take into account a number of factors, including the length of, and reasons for, delay and the impact of the delay on good administration. ” The specific proposal is that claims for judicial review of planning decisions of the local authority should be brought within six weeks of when the claimant knew or ought to have known of the grounds for the claim. The green paper then deals with the difficult problem of the grounds for a judicial review arising from an on-going state of affairs or from a number of related decisions and it is possible to bring a claim for Judicial Review after more than three months by arguing that a continuing failure means that the starting point for the time limit is continually moving. Here, the reform is not confined to procurement or planning cases and the proposal is that the Civil Procedure Rules Committee be asked to review the current wording of the Civil Procedures Rules, and in particular Pt 54.5, to make clear that any challenge to a continuing breach or cases involving multiple decisions should 4 5 6 7 8 9

Public Contracts Regulations 2006 (SI 2006/5). R. (on the application of Taylor) v Maidstone BC [2004] EWHC 257 (Admin). Wallace v East Lothian Council [2012] CSOH 195. R. v Ceredigion CC Ex p. McKeown [1998] 2 P.L.R. 1; [1998] P.L.C.R. 90; [1997] C.O.D. 463. R. (on the application of Burkett) v Hammersmith and Fulham LBC (No.1) [2002] UKHL 23. Finn-Kelsey v Milton Keynes [2008] EWCA Civ 1067.

be brought within three months of the first instance of the grounds and not from the end or latest incidence of the grounds. Applying for permission—restricting the rights of renewal The consultation paper argues that at present there are as it were four bites at the cherry in applying for permission. They would seem to be: • The application on papers only; • On refusal, a renewed oral application; • On refusal following the oral hearing, a request to the Court of Appeal who can ultimately grant permission and remit the case to the High Court to determine the substantive Judicial Review. • This is not specifically mentioned in the green paper but is presumably going to the Supreme Court and asking the court to grant permission by remitting the matter to the High Court. The Government considers that this gives the applicant too many opportunities to delay the process. It has therefore come up with two potential changes which could either be alternatives or implemented together. The first is to remove the right to an oral renewal where there has been a prior judicial process involving a consideration of the same issues being raised by the application for judicial review. This could cover an application for judicial review of a hearing before the civil and criminal courts (the magistrates’ courts, county courts, the Crown Court, the High Court and the Court of Appeal) the tribunal system (including the First-tier Tribunal) and the judicial functions of coroners and inquiries which are set up by statute. The change would therefore not substantially affect planning decisions. The main objection to this proposed change is that the grounds of judicial review can be very sophisticated and it may need an oral hearing to properly argue those grounds even if there has been a prior judicial hearing. The position of magistrates courts comes to mind. Also the statistics seem to show that renewals often succeed. The second is where the court at the paper stage has certified that the application is totally without merit. This does seem to be a more reasonable proposal but again there could be special circumstances where new evidence has arisen or where the need for oral evidence is very important. Increase in fees At present, there is a fee of £60 to make an application for permission and a further fee of £215 to bring the substantive application. The Government has already proposed raising the £60 fee to £235 and the £215 fee to £235. The additional proposal in the green paper is to introduce an additional fee of what would eventually be £235 for a renewal application to get an oral hearing at the permission stage. Where the application is successful there would be no further fee for the substantive hearing. This does seem a moderate proposal in the context of the high level of legal costs generally and there are provisions for the waiver or reductions of fees based on assessment of the applicant’s means. On the other hand it is unlikely to put off many frivolous or hopeless applications n Michael Purdue First publishing in Journal of Planning and Environmental Law, 2013, 5, 504-508

LOC ALG OVL AW YER .CO.UK

BOOKSHOP Burnett-Hall on Environmental Law 3rd Edition The new edition analyses all the principle areas of environmental law in a single volume. •

• •

Includes new chapters on marine protection (dealing with the newly extended legislation on marine conservation, in particular marine protection zones), and environmental marketing (covering “green” advertising, eco-labelling, eco-design and information labelling) Contains expanded coverage of the EU chemicals regime under REACH, the Plant Protection Products Regulation, and the proposed EU Biocidal Products Regulation Provides fuller treatment of the Regulatory Enforcement and Sanctions Act 2008

Out Now £250

978 0 414 04807 2

Renewal of Business Tenancies 4th Edition Gives you detailed and unrivalled guidance on the law and practice involved with the renewal of business leases. • • •

Puts forward workable solutions to the problems encountered in dealing with lease renewal of business tenancies Explains how the law is applied, the right to renew and the role of the court Keeps you on top of key developments, covering the significant changes to the Landlord and Tenant Act 1954, amendments to the CPR and recent cases

Out Now £235

978 0 414 02424 3

Residential Possession Proceedings 9th Edition Explains how a landlord or mortgage can effect possession of a property or how an occupant can prevent an order for possession being made. • • • •

Revised chapter on Human Rights, Public Law and Possession following the cases of Manchester City Council v Pinnock and London Borough of Hounslow v Powell Impact of the Equality Act 2010 on discrimination related possession proceedings A New chapter on orders for sale dealing with both substantive law (Jones v Kernott and Stack v Dowden) and procedure Changes to the Tenancy Deposit Scheme brought about by the Localism Act 2010

Out Now £105

978 0 414 02497 7

Lewison’s Drafting Business Leases 8th Edition An ideal companion for all property practitioners whether drafting, negotiating, interpreting or litigating commercial lease clauses in the current market. • • •

User-friendly manual combining authoritative legal analysis with practical drafting solutions Explains the recent legislative and case law developments Reflects both landlords’ and tenants’ concerns and respective bargaining positions

Out Now £95

978 0 414 02498 4

TODDS’ Relationship Agreements 9TH Edition This new book brings together in one source comprehensive guidance on the law relating to all types of relationship agreements. • • • •

Details precisely how to decide if the agreement was unconscionable at the date of its inception, considering duress, undue influence, mistakes, inadequate legal advice, etc. This is an essential aspect that competing titles do not appear to address Gives detailed drafting advice, highlighting what should be included and what should not Suggests a frame work for calculating fair figures to put in a pre-nup and a methodology for determining these Specifically addresses conflicts between jurisdictions – the key issue behind the landmark Radmacher case

July 2013 £99 (+£1.98 VAT)

978 0 414 02303 1

De Smith’s Judicial Review 7th Edition The leading work on the principles and practice of judicial review • • •

Deals authoritatively and comprehensively with all grounds of challenge, including illegality, procedural impropriety, substantive review, Convention rights and European Community grounds Provides guidance on the practice and procedure of judicial review, setting out what to do at each stage of the process Details the different remedies available, such as injunctions, prerogative orders, and pecuniary remedies, so you can advise your client effectively on the best course of action

June 2013 £285

LO C A L G OVE R N M E N T L AW YE R

978 0 414 04215 5

HOW TO ORDER

YOUR 30-DAY SATISFACTION GUARANTEE

By email: trluk.orders@thomsonreuters.com By telephone: 0845 600 9355 Online: sweetandmaxwell.co.uk

Our customer promise means that if you are not totally satisfied with the goods you have ordered you are protected under our 30-day satisfaction guarantee. As long as the goods are returned within the 30-day period, in good resalable condition and according to our returns procedure, your order will be cancelled and you will owe nothing or will be refunded the price of the goods. Applicable in UK and Europe only.

Preston and Newsom: Restrictive Covenants Affecting Freehold Land 10TH Edition Provides comprehensive guidance on restricted covenants as they relate to freehold land. It explains the underlying legal principles, looks at the practical aspects of drafting and registering covenants, and considers what happens when a covenant is breached. • • •

Explains how and when a restrictive covenant is enforceable in registered and unregistered land Shows how the benefit or burden of a restrictive covenant is transferred upon the sale of land Goes through the Lands Tribunal hearing procedure and its powers to award compensation and modify or discharge restrictive covenants

July 2013 £195

978 0 421 85810 7

Dilapidations: The Modern Law and Practice 5TH Edition Provides comprehensive coverage of the legal principles relating to both residential and commercial dilapidations, together with al the practical aspects of dilapidations claims. • • • •

Concentrates on those areas of the law which give rise to problems in everyday situations Discusses the legal principles with worked examples showing how they apply in practice Explains both landlords’ and tenants’ obligations and liabilities Provides stage-by-stage procedural guidance for resolving disputes

September 2013 £205

978 0 414 02499 1

Pensions on Divorce 2nd Edition Explains in an accessible fashion one of the most technical and pitfall-strewn areas of family law practice. • • •

Explains what powers the court has to intervene and redistribute pension rights Goes through the procedural mechanisms which the court will follow in carrying out intervention and redistribution Discusses the circumstances in which the court will consider it appropriate to intervene and redistribute pension rights or make some other compensatory provision

July 2013 £95

978 1 908 01319 4

Mental Health Act Manual 16th Edition

COMING SOON

Gives guidance on the Mental Health Act, the effect of the cases arising from it, the delegated legislation made under the Act and the consequences of the Human Rights Act. • • •

Significant amendments made to the Act and its associated Regulations by the Health and Social Care Act 2012 Amendments made to the Tribunal Rules by the Tribunal Procedure (Amendment) Rules 2013 The enactment of the Mental Health (Approval Functions) Act 2012

September 2013 £75

978 0 414 02882 1

Highway Law 5th Edition

COMING SOON

Supplies a detailed and practical commentary on the law relating to the creation, upkeep, development and ownership of highways, including the powers and duties of highway authorities, the rights of users of the highway and of those who own land around the highway. • • •

Provides you with a complete reference to the law governing highways Delivers clear, practical guidance, written in a straightforward and accessible style Addresses matters of particular interest to practitioners, such as stopping up and diversion orders, traffic orders, street works, footpaths, bridleways and bridges

October 2013 £175

COMING SOON

978 0 414 024908

The Law of Public and Utilities Procurement 3rd Edition Provides a detailed explanation of the legal and policy framework for public procurement in both EU law and English domestic law. • • •

Deals with every aspect of the EU procurement rules and their implementation in the UK Covers purchasing by public bodies as well as by the privatised water, energy, transport and postal services utilities Looks in depth at procedures for awarding PPP contracts

Dec 2013 £125

978 0 421 96690 1

Request a Standing Order for any of these titles and receive a 10% discount. Plus, future editions will be sent to you automatically, each with the same 10% discount. For more information visit sweetandmaxwell.co.uk LOC ALG OVL AW YER .CO.UK

LOCAL GOVERNMENT LAW

AT YOUR FINGER TIPS

We’ve been working hard to ensure that we continue to deliver the information you need in the ways you want it. That’s why we’ve identified the key Sweet & Maxwell looseleaf titles that local government legal professionals use and ensured that they are available to you on our online legal research service, Westlaw UK. You’ll have all the tools you need in one place, online – meaning it couldn’t be easier and quicker for you to access the information you need.

Sweet & Maxwell Looseleafs now available on Westlaw UK Schofield’s Election Law • Local government law • 3 Releases a year • Sets out and explains the law and practice of elections and referendums in England and Wales Encyclopedia of Local Government Law • Local government law • 3 Releases a year • Incorporates full texts of Acts and regulations, accompanied with a detailed commentary and full references to relevant judicial authorities Cross on Local Government Law • Local government law • 3 Releases a year • The definitive narrative text on local government law with an established reputation among local government officers and lawyers. It provides a full and detailed account of local authorities’ powers and duties in their many fields of operation Encyclopedia of Housing Law and Practice • Housing law • 4 Releases a year • Providing the housing law practitioner with a wide range of housing information, including all relevant legislation with annotations EU Public Procurement Law and Practice

REUTERS / Paulo Whitaker

• Local government; Public procurement law • 2 Releases a year • Providing practical guidance on all aspects of the EU public procurement legislation Encyclopedia of Highway Law and Practice • Highway law • 3 Releases a year • Ideal for the practitioner dealing with all compliance issues, and including the full text of all relevant legislation with annotations

Encyclopedia of Environmental Health Law and Practice

Encyclopedia of Road Traffic Law and Practice

• Environmental law • 3 Releases a year • A definitive source of reference whenever needing guidance on any aspect of this wide-ranging area of law

• Road Traffic • 3 Releases a year • Reproduces all relevant legislation and subordinate legislation, with clear detailed explanation and interpretations and includes summaries of case law and separate sections devoted to procedure and EU materials

Encyclopedia of Social Services and Child Care Law • Family & social welfare law • 3 Releases a year • Provides clear explanation of the law relating to the care of children and vulnerable adults and social services Encyclopedia of Planning Law and Practice • Planning law • 4 releases a year • The most comprehensive source of information and guidance on planning law and policy includes all relevant legislation including EC legislation as well as domestic statutes and statutory instruments Sweet & Maxwell’s Planning Law: Practice and Precedents • Planning law • 3 Releases a year • Provides a complete and up-to-date guide to the complex provisions of the law relating to compulsory purchase and presents detailed coverage of the powers of relevant authorities Sweet & Maxwell’s Planning Law: Practice and Precedents • Planning law • 3 Releases a year • Dealing with all aspects of town and country planning, and specifically written to help you solve the problems you are likely to face in daily practice

Ruoff and Roper: Registered Conveyancing • Conveyancing • 4 Releases a year • Unrivalled reference source on land registration covering the whole process of land registration from first registration and upgrading of land through to rectification, indemnity and determination of disputes Emmet and Farrand on Title • Conveyancing • 4 Releases a year • Guiding readers through the law and practice of conveyancing, Emmet and Farrand covers every stage of the conveyancing transaction in meticulous detail, from enquiries before contract through to completion Woodfall Landlord & Tenant • Landlord & tenant • 4 Releases a year • Provides you with a complete and definitive reference work covering residential, commercial and agricultural landlord and tenant law and covers a range of topics from the relationship between landlord and tenant, through leases and leasehold enfranchisement to the implications of commonhold ownership, rent and covenants For more information about our local government content on Westlaw UK contact your account manager, or call us on 0800 028 2200.

LOC ALG OVL AW YER .CO.UK

PROFILE

jeffrey Jowell qc Jeffrey Jowell QC is an accredited barrister and CEDR mediator with Blackstone Chambers. He is also Director of the Bingham Centre for the Rule of Law and Emeritus Professor of Public Law at University College London. In 2011 he was Knighted for services to human rights democracy and the rule of law in Europe. Jeffrey is also part of the editorial team for De Smith’s Judicial Review. The new 7th edition will publish this month.

COULD YOU TELL US ABOUT YOUR PROFESSIONAL BACKGROUND AND HOW YOU CAME TO BE A BARRISTER? I have always combined academic law with practice. As professor of public law at UCL my teaching and writing was, I hope, enriched by the conversations with members of my chambers and by practical exposure to the law. Practice is by no means a pre-condition for the academic but in public law at least I have found that it really helps understand the complex relationship between officials, the public and the judiciary. There used to be a great divide between the academic and practising sides of the legal profession, but there is much more contact these days, with some of our leading judges, like Lord Woolf, Lord Steyn, Lord Justices Sedley and Laws making important contributions to the academic literature. Early in my academic career I worked on the notion of planning gain and spent time in the planning department of a local authority (The London Borough of Haringey) and with developers. I then started my practice as a planning barrister and then moved to public law more widely. Planning and local government issues provide a comprehensive background to public law, which is why I always encouraged my students to go into local government, where the engagement with public law is second to none.

LO C A L G OVE R N M E N T L AW YE R

CAN YOU DESCRIBE THE MOST INTERESTING CASE YOU HAVE WORKED ON? Because of my academic involvement (I now direct the Bingham Centre for the Rule of Law) my practice has involved more advice (often to countries about constitutional matters) than cases, but a recent case was interesting as much for its drama as its content. I was one of the counsel in the challenge by the white Zimbabwe farmers (led by the late brave Mike Campbell and his son-in-law Ben Freeth) against the Mugabe government. We challenged the fact that a constitutional amendment forbade legal challenge to the proposed expropriations of the farms, and that the takings were discriminatory. The case was heard before the recently established Tribunal of the Southern African Development Community (‘SADC’, the EU of Southern Africa). During the trial our clients were abducted and beaten to an inch of their lives. The Tribunal held in their favour, wishing to ‘build a house of justice in Africa’, but the victory was short lived as the SADC leaders have now decided to abolish individual petition to the Tribunal.

WHY DID YOU CHOOSE TO SPECIALISE IN PUBLIC LAW AND HUMAN RIGHTS? I grew up in a South Africa where the law was an instrument of oppression. When I came as a student to the UK I became very interested to see whether law could also be a way to restrain discrimination (my first article proposed equality legislation for the UK) and to constrain government action that offends human dignity (my doctoral dissertation is all about law and bureaucracy). In those days there was very little specialism in public law in legal practice but, as I have said, the planning bar touched upon it. I was then involved as a Junior in one of the first cases on rate capping (where we persuaded the court that Environment Minister Michael Hezeltine had fettered his discretion and against natural justice when penalising London local authorities for overspending). I was then invited to join Hare Court (now Blackstone Chambers) where barristers such as Anthony Lester, Michael Beloff and then David Pannick, instructed by solicitors such as Geoffrey Bindman and others, pioneered the public law and human rights bar. WHAT ARE THE KEY RECENT DEVELOPMENTS THAT HAVE AFFECTED THE NEW EDITION OF DE SMITH’S JUDICIAL REVIEW? When Lord Woolf and I took over the 5th edition of de Smith in the early 90s we expected to do a mere annotation. It turned out that because of the huge developments in public law the work needed a complete rewrite. The same happened with the next edition, particularly in order to reflect the new procedures and the passing of the Human Rights Act 1998. This time round we have had to reflect on the complex relationship between EU and ECHR law and their integration into fundamental ‘English’ standards of review, as well as new developments arising from broader powers to local authorities, as well as the developments arising from the new tribunal structure, alternative dispute resolution, and many questions about the delicate relationship between courts and official discretion, and whether new standards, such as proportionality, have replaced ‘Wednesbury’ unreasonableness.

HOW DO YOU THINK DE SMITH WILL HELP ITS READERS IN THEIR WORK AND WHAT ARE ITS KEY FEATURES THAT SET IT APART FROM ITS COMPETITORS? de Smith has always differed from other works in this field in the following respects: First, it is authoritative. It is the most frequently cited work in public law. Second, it is comprehensive, covering judicial review in detail, including its EU and ECHR aspects, both procedure and substance. Its cases come not only from challenges to the executive. It concentrates too upon the work of local authority decision-makers and others. Third, it elucidates ‘principles’. Unlike other works, which tend to give a series of examples of, say, the grounds of judicial review, de Smith always sets out a series of ‘propositions’ or ‘principles’, which makes it easier to handle. Finally, while not a work in comparative law, de Smith refers to the law of other countries, especially in the Commonwealth, which can be surprisingly useful in modern-day litigation. HOW DO YOU MANAGE TO JUGGLE YOUR WRITING AND YOUR DAY TO DAY WORK? All the de Smith authors have combined writing and practice. As I have said, I have become used to doing both, in different proportions over the years. So have the three other members of Blackstone Chambers. Harry Woolf, as I have said, is an honorary don; Ivan Hare used to teach at Cambridge and Catherine Donnelly, formerly at Oxford, is now also teaching at Trinity College Dublin. Andrew Le Sueur is a law professor and also a door tenant at Brick Court Chambers. HOW DO YOU RELAX IN YOUR SPARE TIME? Spare time? When in the country fussing over my hens and sheep. When in London playing tennis each weekend at Parliament Hill and, of late, playing with buses and trains at the London Transport Museum with my grandchildren. WHAT DO YOU THINK ARE THE KEY CHALLENGES FACING PRACTITIONERS TODAY? Withstanding cuts in legal aid that threaten access to justice and withstanding possible restrictions to one of this country’s proudest achievements, namely judicial review. DO YOU HAVE ANY OTHER WRITING PROJECTS ON THE HORIZON?

Order your copy today: Email: trluki.orders@thomsonreuters.com Call: 0845 600 9355 Online: sweetandmaxwell.co.uk

Work is in progress on articles and books on the rule of law in its different manifestations and the Supplement and then next edition of de Smith will, we know, be upon us in no time at all.

LOC ALG OVL AW YER .CO.UK

CONTACTS

Our team of Local Government Account Managers can be contacted by TELEPHONE or EMAIL as listed below. Mark Langsbury 07827 662 262 mark.langsbury@thomsonreuters.com

Nick Dosanjh 07885 389 135 nick.dosanjh@thomsonreuters.com

Lance Thompson 07825 725 008 lance.thompson@thomsonreuters.com

Sean Duffy 07789 435 448 sean.duffy@thomsonreuters.com

Philippa Pritchett-Brown 07702 319 730 philippa.pritchett-brown@ thomsonreuters.com

Bedfordshire, Buckinghamshire Mark Langsbury

Berkshire

Lambeth

Somerset

Lance Thompson

Philippa Pritchett-Brown

Lincolnshire

Lewisham

Staffordshire

Lance Thompson

Mark Langsbury

Lance Thompson

Merton

Suffolk

Lance Thompson

Mark Langsbury

Nick Dosanjh

Cambridgeshire Lance Thompson

Cheshire, Cleveland Sean Duffy

Cornwall Philippa Pritchett-Brown

Cumbria Sean Duffy

Derbyshire Lance Thompson

Devon, Dorset Philippa Pritchett-Brown

Durham Sean Duffy

East Sussex Nick Dosanjh

Essex Mark Langsbury

Gloucestershire Mark Langsbury

Hampshire Philippa Pritchett-Brown

Herefordshire Mark Langsbury

Hertfordshire Mark Langsbury

Kent Nick Dosanjh

Lancashire Sean Duffy

Leicestershire

LO C A L G OVE R N M E N T L AW YE R

London: Barking & Dagenham, Barnet, Brent Mark Langsbury

Bexley, Bromley Nick Dosanjh

Camden, Croydon Lance Thompson

City of London Philippa Pritchett-Brown

Ealing

Newham

Surrey

Nick Dosanjh

Redbridge

Tyne & Wear

Mark Langsbury

Sean Duffy

Richmond upon Thames, Southwark, Sutton Lance Thompson

Tower Hamlets, Waltham Forest

Nick Dosanjh

Mark Langsbury

Enfield

Wandsworth

Mark Langsbury

Nick Dosanjh

Greenwich

Westminster

Nick Dosanjh

Philippa Pritchett-Brown

Hackney, Hammersmith & Fulham, Harrow, Hillingdon

Greater Manchester, Merseyside

Lance Thompson

Norfolk

Sean Duffy

Wales: North Wales Sean Duffy

Mid & South Wales Nick Dosanjh

Warwickshire Lance Thompson

West Midlands, West Sussex Nick Dosanjh

Wiltshire Philippa Pritchett-Brown

Worcestershire Lance Thompson

Haringey, Havering

Lance Thompson

Mark Langsbury

Northamptonshire

Yorkshire:

Lance Thompson

East Yorkshire Lance Thompson

Islington

Northumberland Sean Duffy

Mark Langsbury

Nottinghamshire

North Yorkshire, South Yorkshire

Hounslow Nick Dosanjh

Kensington & Chelsea Lance Thompson

Lance Thompson

Sean Duffy

Oxfordshire

West Yorkshire

Kingston upon Thames

Mark Langsbury

Nick Dosanjh

Shropshire Sean Duffy

Nick Dosanjh

REUTERS/Bobby Yip

DE SMITH’S JUDICIAL REVIEW Right Hon Lord Woolf . Professor Sir Jeffrey Jowell QC Right Hon Lord Woolf . Professor Sir Jeffrey Jowell QC Professor Andrew Le Sueur . Catherine Donnelly - Ivan Hare Professor Andrew Le Sueur . Catherine Donnelly - Ivan Hare

JUNE 2013 Regarded as the leading authority on judicial review, and frequently cited in court, you’ll find De Smith’s Judicial Review provides detailed analysis of principles, procedure, remedies and case law. The new 7th edition has been brought up to date to reflect the latest developments in practice, procedure and case law. You’ll find De Smith’s Judicial Review will: • Enable you to advise and make decisions with complete confidence • Allow you to tackle complex problems and consider developments, underlying principles and emerging trends in case law • Provide lawyers in central and local government with up-to-date and authoritative analysis of judicial review which is necessary to advise defendants as well as claimants • Present academics with a primary source of reference on the principles underlying all aspects of judicial review in the context of the fast-changing administrative justice system • Deal with all grounds of challenge, including illegality, procedural impropriety, substantive review, under the Human Rights Act 1998 and European Community Grounds • Draw in the relevant experience from other jurisdictions, especially Australia, Canada, India, Ireland, New Zealand and South Africa For a full list of updates please visit sweetandmaxwell.co.uk PLACE YOUR ORDER TODAY VISIT EMAIL CALL

sweetandmaxwell.co.uk TRLUKI.orders@thomsonreuters.com 0845 600 9355 (UK) +44 (0)1264 388560 (INTERNATIONAL) QUOTING REFERENCE 1161107A

7TH EDITION

YOUR ORGANISATION AT ITS MOST

POWERFUL Thomson Reuters suite of software solutions maximise time-saving efficiencies and bring you cost-saving benefits realised within weeks, not months. Our drive is your success.

SOLCARA

FLOSUITE LEGAL

Simulataneously search multiple resources using world-class information retrieval technology. With Solcara Legal Search and Solcara Know How software, your internal databases and your external legal information resources can be brought together into one smart, simple and streamlined system.

With intuitive Case Management, Matter Management and Business Process Management solutions, FloSuite Legal lets you build and adapt workflows that perform for you.

SOLCARA.COM

FLOSUITELEGAL.COM