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Court: Court of Appeal (Civil Division)

Court of Appeal finds that JR time limits do not apply to Francovich damages claims

Secretary of State for Transport v Arriva Rail East Ltd & Ors [2019] EWCA Civ 2259

The issue in this appeal was the applicable time limit for the bringing of Francovich damages claims arising out of a public procurement process which is not governed by the Public Contracts (and similar) Regulations. The case raised the stark contrast between the 30 day time limit under the Regulations, the 3-month time limit required for an application for judicial review, and the 6-year limit for a claim for breach of statutory duty provided by the Limitation Act 1980. It also raised an issue as to the correct approach to the 3-month limit where the public law issues arise not from a one-off decision, but an ongoing process.

The Secretary of State for Transport had notified several of the train operating companies that they had been disqualified from the franchise competitions for three different franchises. The train companies commenced judicial review and proceedings under CPR Part 7, seeking to challenge their disqualification and including a claim for Francovich damages. The Secretary of State sought to strike out the challenges to the terms of the bid on the basis that they had been brought well outside the JR time limit.

The Court of Appeal found that the standard 6 year time limit applied to all of the elements of the challenge on which the damages claim was based, although the 3 month JR time limit would apply if the Claimants were seeking an injunction to set aside the decisions of the Secretary of State. To the extent that the 3-month time limit is applicable at all, the Court held that it will be a matter for the judge to decide at the trial whether and to what extent any part of the decisions fell the wrong side of the line. This argument will not of course arise in relation to the damages claims in any event.

Court of Appeal clarifies how Qualified One Way Costs Shifting applies to mixed claims

Brown v Commissioner of Police of the Metropolis & Ors [2019] EWCA Civ 1724

The Court held that automatic QOCS protection applies to claims for damages in respect of personal injuries, and that this would include all claims consequential upon that personal injury, including a claim for lost earnings as a result of the injury and the consequential time off work. The Court held that claims for other types of damages did not attract automatic protection.

However, LJ Coulson commented that if proceedings can fairly be described in the round as a personal injury case then, unless there are exceptional features of the non-personal injury claims, he would expect the judge deciding costs to exercise his or her discretion in order to achieve a ‘cost neutral’ result. 

Court of Appeal considers UK’s obligations to family members recognised as refugees

Secretary of State for the Home Department v JS (Uganda) [2019] EWCA Civ 1670

This appeal concerns the 1951 Geneva Convention on Refugees (“the Refugee Convention”) and the protection against refoulement afforded to foreign criminals subject to deportation orders, who have previously been granted refugee status linked to the refugee status of a family member.  The case raises issues of construction as to the definition of “refugee” under Article 1A(2) and the true construction of the “cessation” provision under Article 1C(5) of the Refugee Convention.

Court of Appeal rules on procedural routes for human rights challenges to judicial acts

Mazhar v Lord Chancellor [2019] EWCA Civ 1558

This was an appeal against an order of Sir Ernest Ryder SPT by which he dismissed the Appellant’s claim for a declaration that an order made by Mostyn J, under the inherent jurisdiction of the High Court, authorising his removal to, and detention in, a hospital was an unlawful violation of his rights under Article 5 of the European Convention on Human Rights.

The main question that arose in this appeal concerned whether the Human Rights Act permits a person to bring a claim in the High Court for a declaration that an earlier order of that Court was an unlawful violation of his Convention rights, or whether the claimant’s only remedy is an appeal against that order.

The Court dismissed the appeal against the order made by the SPT but for different reasons from those that he gave and granted permission to appeal out of time against Mostyn J’s order of 22 April 2016.

Court of Appeal orders a local authority to compensate for the non-inclusion of educational placement costs in a Care Act 2014 personal budget

R (CP) v North East Lincolnshire Council [2019] EWCA Civ 1614

The appellant is a 22-year old woman with global development delay, learning difficulties and an autistic spectrum disorder. She appealed the against a previous high court decision to dismiss her challenge to the respondent’s failure or refusal to make certain payments to her. The appellant attended a weekday placement at an establishment run by a charity. The Council paid £10,800 per annum into the appellant’s personal budget for her attendance, since 17th November 2017. This JR relates to the Council’s refusal to pay her costs of attendance during an earlier period from 11th April 2016 to 17th November 2017.
Held: The fact that the appellant’s personal budget did not include the cost of attendance at an agreed educational placement was a “clear breach” of the Care Act 2014 and of statutory guidance, which she could challenge by judicial review, despite an FTT appeal relating to overlapping issues in her Children and Families Act 2014 Education and Health Care Plan. The Council was liable to compensate her for her accrued right to the cost in question.