Joanna Trafford v Blackpool Borough Council [2014] EWHC 85 (Admin)

The claimant was a solicitor whose firm (North Solicitors) operated from office premises at the New Blackpool Enterprise Centre (the ‘EC’). The EC was owned by the defendant (Blackpool Borough Council). By these judicial review proceedings, the claimant sought to challenge the defendant’s refusal to renew her lease of office premises at the EC. The claimant’s main complaint concerned the defendant’s justification for its refusal, which was that North Solicitors had a history of bringing claims against the defendant on behalf of its clients. This related to a series of compensation claims for injuries that were alleged to have been caused by the defendant.

The defendant argued, as a preliminary point, that the claim was brought out of time, and that no extension of time should have been granted in this instance. Additionally, the defendant contended, as a preliminary jurisdictional point, that its refusal was not amenable to challenge by judicial review, because its relationship with the claimant was governed entirely by private law. Regarding the substance of the decision, the defendant submitted that it was perfectly reasonable to ignore any offers for a new lease by the claimant, and that there was no valid public law challenge to its decision.

Judge Raynor QC ordered the case to be listed as a rolled up hearing, so that the substantive issues could be dealt with alongside the preliminary issues of delay and amenability, if permission was to be granted. The grounds of challenge were as follows:

1.     Improper or unauthorised purpose

2.     Wednesbury illegality

3.     Procedural fairness

4.     Public Sector Equality Duty

5.     Unpublished policy

Regarding delay, the Court accepted that the claimant only received the decision on 3 June 2013, and was only made aware of the reason for the refusal (that her firm had been ‘blacklisted’), on 4 June 2013; despite the fact that the decision not to offer her a new lease was sent to her on 24 April 2013. In spite of this, it was noted that she had issued proceedings within 3 months of the date that she was made aware, and the claimant had acted entirely reasonably from 4 June 2013 in requesting a written explanation, making a formal complaint, sending a pre-action protocol letter of claim, and producing and issuing the claim. Further, given that the case was very much arguable and raised points that were in the wider public interest, and taking into account that the defendant had not suffered any prejudice due to the delay, the Court exercised its discretion to extend the time for this claim to be brought.

In relation to the amenability of the claimant’s submissions to judicial review, the Court began by stating that the decision should be analysed alongside the relevant statute, s. 123 Local Government Act 1972, which gave the defendant ‘an extremely wide and…virtually untrammelled power’. The defendant’s submission that its relationship with the claimant was governed entirely by private law was further strengthened by the commercial nature of the decision, with it involving a commercial premises that was let under a commercial lease on a commercial rent.

In spite of the commercial nature of the facts, and the apparent wide powers that were bestowed upon the defendant, the Court nonetheless adjudged that the decision was amendable to judicial review.

Firstly, in spite of the defendant’s powers under s. 123 LGA 1972, it was clear that the defendant had chosen to promote a policy concerning tenancy selection which was dictated by specific criteria that needed to be accounted for. The criteria included: whether the business in question was a new start-up or expanding business, whether the business was from the local area, and whether the business created new employment opportunities within the local area. The Court also found that the decision still contained a strong ‘public law element’, and that the relationship between the defendant and the claimant was not simply a ‘purely arm’s length relationship’. For instance, it was noted that the Centre was built with public funding, and that it contained support agencies who were available to its tenants for assistance with their business developments and obtaining access to public funding.

On the facts of the case, the effect of the decision was that the defendant had decided, in light of the claimant’s supposed professional activities, that it was not prepared to consider an application for a renewal of the claimant’s tenancy on its merits (by reference to its published tenant selection criteria). The claimant contended that this decision was vitiated on the grounds of ‘improper purpose’, ‘irrationality’ and ‘procedural unfairness’; and the Court agreed that all of these challenges were both genuine and substantial, in concluding that there was a reasonable public law element or connection to render the defendant’s decision amenable to judicial review on all of the above grounds.

Ground 1: Improper or unauthorised purpose

The claimant contended that the defendant had exercised its powers for the improper purpose of seeking to cause detriment to the claimant, despite the fact that the claimant had not acted unlawfully.

The defendant argued that it was entitled to take into account its financial interests, when discouraging any personal injury claims made against itself, having made a decision not to grant a new lease to the claimant. The defendant contended that the decision was taken in its best interests, and that it was not done to inflict detriment upon the claimant. Further, the defendant submitted that the lawfulness of the decision was demonstrated by the breadth of the discretion conferred upon it by s. 123 LGA 1927; whilst also submitting that it did not need to disclose any reasons for the decision, and that its decision was not vitiated by the fact that the defendant referenced its own financial interests as a justification for it.

The Court however adjudged that the defendant had breached its duty not to exercise its discretion for improper or immaterial purposes. There was no indication that the defendant had conducted a rational assessment of all of the relevant considerations, given its failure to follow the published tenant selection criteria, and its inability to account for the wider community’s interests. The Court found, based on the defendant’s belief that the claimant was involved in ‘claims farming’, that the only thing the defendant took into account when deciding whether to entertain a renewal request from the claimant was its desire to punish the claimant. Therefore the defendant had failed to exercise its power to uphold the purpose for which it was conferred. The defendant had exercised the power with the sole aim of punishing the claimant in circumstances where any unlawful or improper actions on the claimant’s behalf were undetectable. The Court also criticised the defendant’s actions in openly fettering its discretion after resolving to ignore any applications for tenancy renewals from the claimant.

Ground 2: Wednesbury illegality

The question here was whether or not the decision was within a range of reasonable decisions. The Court found that the decision was irrational, finding that if the decision to reject the claimant was motivated by financial interests, that this would be insufficient because there was no reasonable grounds for considering that. The Court further concluded that there was no rational basis for believing that forcing the claimant to relocate would lead to a reduction in the personal injury claims brought against the defendant.

Ground 3: Procedural fairness

As the defendant had promulgated and adopted a policy regarding the selection of tenants for the Centre, they could not make any decisions by using criteria that were not contained in the policy without allowing the claimant to make representations (R v London Borough of Camden, ex parte Hughes). The defendant had therefore failed to act in a procedurally fair manner by not giving the claimant the opportunity to make representations before the decision was taken or implemented.

Ground 4: The Public Sector Equality Duty

As this ground was not included in the claim form, it was the subject of an opposed application for permission to amend to raise it. The Court found that there was no hint of a complaint about any breach of this duty in any of the pre-action correspondence, nor in any of the grounds, weakening the strength of this particular aspect of the claim by highlighting that this ground was only added as an ‘afterthought’.

Despite the fact that the claimant had submitted that raising this ground did not disadvantage the claimant, because the defendant had little chance of defending what was an ‘overwhelmingly strong case’, the Court nonetheless concluded that the application to amend should be rejected. Because the defendant did not have the opportunity properly to respond to this ground, and given that there were clearly arguments and evidence that the defendant would have wanted to put forward, the Court found that it would have prejudiced the defendant to allow the permission to amend. The Court also adjudged that there was no indication that the claimant or anyone in her firm had any protected characteristics; nor should the defendant have reasonably considered that a consequence of the decision might be to the detriment of any of the claimant’s clients with protected characteristics.

Ground 5: Unpublished policy

The Court outright rejected the claimant’s submission that the relevant decision was made as a consequence of a secret policy to blacklist the claimant and others like her.

Conclusion

The claimant succeeded on grounds 1, 2 and 3. The Court concluded that the appropriate relief was to quash the defendant’s decision to refuse to consider the claimant’s application for a tenancy renewal. This would only mean that they would have to consider it again, but this is one of the drawbacks of the judicial review jurisdiction. It is not an appeal.

 

Comment

This is an extremely valuable case for any advocacy organisation which feels its funding or lease may be at risk the more successful it gets for its clients!

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