A “sufficiently serious” case? Assessing the Supreme Court’s decision in EnergySolutions v NDA

Written by freethslocalgovernment on April 24, 2017


EnergySolutions EU Ltd (now ATK Energy – “ATK”) unsuccessfully tendered for a contract to decommission 12 “Magnox” nuclear power stations managed by the Nuclear Decommissioning Authority (“NDA”). It was found (following a previous judgement) by the Court that ATK should have been awarded the contract and that the NDA made serious errors in their assessment of tenders which had led to its erroneous decision. ATK brought a public procurement claim against the NDA seeking damages for alleged breaches of the Public Procurement Directive ( 2004/18/EC) – the “Directive”) and the implementing legislation in the UK, the Public Contracts Regulations 2006 (the “Regulations”).

Shortly following the Supreme Court hearing, but before the decision was issued, we understand that the matter was settled by the parties at a reported cost of £100 million to the British taxpayer, allied to an early termination of the awarded contract. Both parties agreed to the judgement being issued, irrespective of their settlement.

The judgement

“Sufficiently serious” – the second Francovich condition

It is established that the three Francovich conditions (from an ECJ case) must be satisfied for State Liability to arise; namely that ;

(1) the rule of law infringed must be intended to confer rights on individuals,

(2) the breach must be sufficiently serious, and

(3) there must be a direct causal link between the breach of the obligation and the damage sustained by the injured party.

The present case considered the breaches by the NDA of the Directive in light of these three conditions, with the Court’s assessment of the second condition of particular significance to practitioners.

ATK had argued that UK legislation had gone further than required by EU law by making damages an automatic remedy to a breach regardless of whether the breach was “sufficiently serious” or not. The Court rejected this argument, clarifying that there is a positive obligation on claimants to demonstrate that a breach is “sufficiently serious”.

This assessment reverses long-standing practice and is now expected to present a major hurdle to future claimants. The Supreme Court also did not provide guidance on what constitutes a “sufficiently serious” breach (aside from that which results in the incorrect award of a contract).

Failure to issue claim before contract is made

The Directive provides that there is to be a “standstill” or “Alcatel” period” of at least 10 days from the date on which a tenderer is informed they have been unsuccessful, during which the relevant contracting authority cannot enter into the contract with the successful tenderer. This provides unsuccessful tenderers with the opportunity to issue a court claim to prevent the contract being made.

The UK has also legislated, under the Refgulations that an unsuccessful tenderer has a separate period of 30 days from the notification that they have been unsuccessful in which to issue proceedings seeking a review of the contracting authority’s decision.

In this case, the NDA made the contract with the successful tenderer after the initial standstill period (voluntarily extended to 14 days by the NDA), but before the expiry of the 30 day period. ATK, despite being aware that the contract was to be made, did not issue their claim until after the initial standstill period. The NDA argued that as a result of this delay and with full knowledge of the likely consequences, ATK had failed to mitigate their losses. The Court rejected this argument, finding that tenderers “are not obliged to take advantage of the opportunity….to stop the wrongful award of a procurement contract to a competitor” (para 53) – ie: an operator is perfectly entitled to wait until the standstill period has expired before issuing their claim, whether for tactical reasons or otherwise.

Practical points

This judgement leaves considerable uncertainty for practitioners on what will constitute a “sufficiently” serious breach, and this is likely to be highly dependent on the facts of the particular case.

The decision also may make it more likely that contracting authorities will now take the “safe approach” and wait until the expiry of the 30 day limitation period before awarding the contract. This will make life a little easier for unsuccessful tenderers, and means that they can take decisions within the 30 day period without fear of reproach.

If you or your clients require further advice on this issue, please contact Stephen Pearson on 0845 274 6900 or at stephen.pearson@freeths.co.uk.


The end of “parent power”?

Written by freethslocalgovernment on April 7, 2017


Mr Platt’s (“F”) seven year-old daughter (“D”) was a registered pupil at an Isle of Wight primary school. F sought to remove D from school, during term time, for a holiday to DisneyWorld, America. This holiday would cause D to be absent from school for seven days.

F initially made a formal request for the school’s permission to remove D. This was refused by the head teacher. Notwithstanding this refusal, F took D on the holiday. On his return, F was issued with a Fixed Penalty Notice by the Council’s Education Welfare Officer for “unauthorised family holiday during term time”.

F failed to pay the penalty notice and proceedings were issued in the Isle of Wight Magistrates’ Court on the basis that F was guilty of an offence under s.444(1) of the Education Act 1996 (“EA”). This section provides:

“If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence”

The Magistrates, in their interpretation of the meaning “fails to attend regularly”, took into account D’s attendance outside of the offence dates (ie: the holiday absence) and found that overall, D had an attendance rate of 90.3%. This rate fell within the bounds of satisfactory school attendance. On this basis, the holiday absence did not cause D to fail to attend school regularly. The Magistrates found that there was accordingly no case for F to answer.

Subsequent appeals distilled the question before the Supreme Court to what is the meaning of “regularly” under s.444(1) of the EA. Lady Hale, giving the only judgment, found that “regularly” means “in accordance with the rules prescribed by the school”. In other words, the absence of a child from school requires permission from the school, and such permission will only be granted in exceptional circumstances, no matter how good the pupil’s attendance is. It could be said that the Court somewhat ducked the question of what the word “regularly” actually means in law ?

This judgment was clearly influenced heavily by public policy considerations. It is clear that the Court was worried about setting a precedent whereby children could be removed from school whenever it suited their parents. A decision in favour of F would be a “slap in the face of those obedient parents who do keep to the rules, whatever the cost or inconvenience to themselves”. Concerns about the disruptive effect of such removal on the child’s learning also swayed the Court.

Practical point

 Local authorities and Academies now have decisive legislative authority which supports their enforcement of Fixed Penalty Notices. Given its publicity and as we approach the holiday season, this case will likely serve as a deterrent to parents who remove their child/ren from school either without seeking permission from the school, or irrespective of permission being refused. This may therefore result in a dip in the number of Fixed Penalty Notices being issued by Local Authorities, at least in the short term.

 The Department of Education has already indicated that further guidance to Local Authorities on unauthorised absences is in the offing. Local Authorities will need to take into account this guidance in considering when to issue Fixed Penalty Notices in the future. On the other hand, schools will need to consider the guidance as part of their decision-making as to whether or not absences can lawfully be authorised.

If you wish to discuss this matter further, or would like practical advice on the effects of this judgment and the impending guidance, please contact Stephen Pearson on 0845 274 6900 or at stephen.pearson@freeths.co.uk.…

Local authorities/Disposal for best consideration – Whitstable Society v Canterbury City Council

Written by freethslocalgovernment on April 6, 2017


CCC owned some land that had had various uses over the years, including use by the public for walking and riding bicycles.  CCC had acquired the land on the understanding that it would be kept as open space but there were no covenants on the title nor any provisions stipulating the purposes for which CCC was acquiring the site.  A developer began discussions with CCC to develop the site.  A valuation report was produced and CCC later resolved to sell the site to the developer and a sale contract was exchanged.

Local community group W sought a review of CCC’s decision and issued proceedings to quash the sale contract on various grounds, including that CCC had not obtained best consideration because the valuation report was produced on the assumption that affordable housing requirements would be imposed in relation to the development, when in fact, by the time the report was considered, the position on affordable housing requirements had changed.

The court found that CCC had not obtained best consideration, but W’s application was refused on other grounds.

Practical point

Local authorities are under statutory obligations when it comes to disposing of land in relation to the price that is achieved, as well as obligations in relation to notification and advertising.  Valuation reports are only as good as the assumptions they are based on at the time they are produced.  In this case, the position had changed considerably in relation to affordable housing requirements as CCC’s own local plan requiring affordable housing had been delayed – CCC would have been aware of this and a reasonable authority would have re-enquired as to the position.

If you would like to read the case in detail please click on the following link: http://www.bailii.org/ew/cases/EWHC/Admin/2017/254.html



Do actions speak louder than words?

Written by freethslocalgovernment on April 3, 2017

Guardian schemes are an increasingly popular way for property owners to protect vacant premises against squatters and vandalism. Management companies arrange for individuals to live in such properties as licensees. However, the recent case of Camelot Property Management Limited and Camelot Guardian Management Limited v Roynon [2017] is a reminder that when it comes to determining the basis of someone’s occupation of property, the situation ‘on the ground’ is just as important as what the agreement between the parties actually says.


Bristol City Council own a disused former care home. They engaged the services of Camelot Property Management Limited, who placed ‘guardians’ in the property in order to secure it. One such guardian, Mr Roynon, occupied two specific rooms to which only he had access. He also had use of other facilities such as a communal kitchen and bathroom. Mr Roynon entered into a written agreement in January 2014 which stated that it created a licence and not a tenancy. However, when the management company served notice to quit upon Mr Roynon in May 2016, he refused to leave the property.


When determining whether an agreement is a tenancy or a licence, a Court will look beyond whatever label the parties have put on a document and take into account the reality of the occupation. As outlined in last week’s Practical Property Guide blog, a tenancy grants “exclusive possession” of a property for a specified period of time (being a right to use a property to the exclusion of others), whilst a licence is simply a permission to do something on someone else’s property.


The Court found that the provisions of the agreement did not reflect the reality of Mr Roynon’s occupation ‘on the ground’. Whilst the agreement provided that the guardians would not be given designated rooms, Mr Roynon had exclusive possession of two rooms to which the other guardians at the property did not have access and would not enter without his permission.

The agreement also prohibited overnight guests, limited the number of guests to two at any one time (and provided that they must not be left unsupervised) and stated that any guests must be escorted off the property at the end of each visit. The Court felt that whilst these restrictions were onerous, they only restricted the way in which Mr Roynon could use his rooms. Such restrictions are a common feature of tenancies and so do not by themselves prevent exclusive possession. The absence of any power to move Mr Roynon between rooms as and when the Council required, was considered to be a significant factor in indicating that there was a tenancy and not a licence. The Court found that these specific facts were sufficient to give Mr Roynon exclusive possession and that he had an Assured Shorthold Tenancy.


This case is a reminder that it is not simply enough to label a document a licence if the reality of the situation is something different. The consequences for failing to recognise when an agreement is a tenancy can result in a landlord having to terminate such agreement in accordance with the relevant statutory procedures.

Guardian providers may need to embrace the likelihood that their existing arrangements constitute ASTs and adapt their procedures accordingly. Landowners should be sure that documents are carefully drafted and arrangements put into place to ensure that any attempts to keep trespassers out do not result in letting unwanted tenants in.

So don’t be caught off guard by letting your guard down…

Ben Gant
Real Estate Group

“They’re back…” Is possession really 9/10th’s of the Law?

Written by freethslocalgovernment on March 22, 2017

As a property litigator, when you get a message from a client you are not expecting to hear from asking you to call urgently at 7.30am on a Friday morning, you know that your day is not going to go the way you thought it was.  “They’re back” was the message.


Our client had bought a 3.5ha site for development and in May last year, before putting a spade in the ground, a number of trespassers got onto the land and began fly tipping waste on it. It appeared that these individuals were collecting rubbish from people for a price and then dumping it on our client’s site. Our client asked the Police to get involved but they declined to do so.

We urgently commenced Court proceedings seeking an order for possession in the County Court.  By the time the order was granted and the trespassers left, they had dumped over 1000 tonnes of rubbish on the site which cost the client circa £150,000 to clear.  The photos show the state the trespassers left the site in.


Fast forward to last Friday morning.  When our client told me “they’re back“, this of course referred to the return of the trespassers to the site.  Our client had previously secured the site with locked gates and erected concrete blocks to prevent access but the trespassers simply cut through the locks and broke through the concrete blockade and had begun dumping waste on the site.  Once again, the Police declined to act and directed our client to obtaining an order for possession in Court.

In view of the urgency of the situation, we decided to make an application for permission to issue a claim for possession in the High Court and shorten the time for the service of the claim. We wrote a letter advising the trespassers of what we were doing and asked them to attend the High Court in London at 2pm that afternoon.  We then quickly prepared all the paperwork and arranged for Counsel to go to Court.  Whilst the Judge took some persuading, he agreed that in view of the history of fly tipping and the potential for further damage to the site, it was appropriate for the claim to be issued in the High Court and for the time for service to be shortened. A key factor in this was that the trespassers had been given notice of our application. The Judge ordered that the trespassers give up possession immediately, that the claim documents be served at the same time as the order for possession and issued a writ authorising High Court Enforcement Officers to remove the trespassers from the site.

By 7pm on Friday evening, all of the trespassers had been removed and the site made secure. All in all, a fantastic turnaround for our client given the potential nightmare of having the trespassers on site dumping waste whilst the matter made its way through the County Court system.

So what lessons can be learnt from this?

1.  The vast majority of trespass cases still must be issued in the County Court.  This process can take a number of weeks for a trespass order to be granted and in the intervening period, the trespassers can cause extensive damage to the property they occupy without any real recourse for the owners on the basis the trespassers are “Persons Unknown“.  The Police rarely get involved leaving the site owner with potentially huge clean-up costs whilst the trespassers walk away scot- free. The law desperately needs reforming so that the cards are not stacked so much in the trespassers’ favour.

2.  The High Court issued a guidance note in September 2016 as to the types of trespass cases it considers would be appropriate for issue in the High Court.  One of the specific circumstances referred to is fly tipping of waste so if you can prove there is a real danger of extensive fly tipping by trespassers, it may well be possible to issue in the High Court. However, the Court will need persuading the matter is sufficiently serious to merit issue in the High Court.

3.  By moving quickly great results can be achieved.  Here this was possible due a collective team effort between our client, the High Court Enforcement Officers (Constant & Co), Counsel (Jamal Demachkie of Harwicke Chambers) and ourselves.

Paul Tomkins

Paul Tomkins



Property Litigation…

Hope Living

Written by freethslocalgovernment on March 21, 2017

On Friday I attended the launch of Hope Living, and assisted with a presentation by Phil Woolas and Jason Highet at the Conservative Party Spring Conference at the SSE Swalec stadium, Cardiff.

‘Hope’ is an initiative to relieve ‘bed-blocking’ by making available accommodation on a long term basis to Local Authorities and Clinical Commissioning Groups (CCGs) at a rental linked to Local Housing Allowance (LHA) rates, the rent for which is met by Housing Benefit. The way in which the private funding is made available makes it possible for £15,000 to be applied to refurbish each unit of accommodation. Tenants are nominated by the Authority, who are then granted an assured shorthold tenancy.

 The Mirror online reported on this over the weekend but please also see Hope Living’s website for further information on the initiative.

Matthew Grocock
Real Estate Group


Environmental Sentencing Guidelines: Consistently Packing A Punch

Written by freethslocalgovernment on February 16, 2017

Prosecution for an environmental offence can have serious consequences for any business organisation or individual, not only in terms of criminal sanction (as seen below) but also damage to the organisation’s/individual’s reputation and their future relationship with environmental regulators.

Since 1 July 2014, the courts have applied tough sentencing guidelines which were introduced with the aim of achieving greater consistency between courts in the imposition of sanctions.

Recent prosecutions in the last 12 months have resulted in the following sentences:

  • A waste operator sentenced to prison for a record 7½ years
  • An individual sentenced to 8 months in prison, suspended for 18 months with a 5 month electronic curfew between the hours of 7pm and 7am and an order to pay £1,500 in costs.
  • A Company and a Director were sentenced.  The Company was fined £20,000.  The Director was disqualified from acting as a Company Director for 5 years and ordered to pay £35,000 compensation to the landowner and carry out 250 hours of unpaid work.
  • An operator was given a 4 month custodial sentence suspended for 1 year and ordered to pay over £7,600 in costs and a remediation order was made.
  • A Company, a Director and another individual were sentenced.  The Company were fined a total of £50,000 and ordered to pay costs of £18,648. The Director was ordered to pay fines of £8,000 and costs of £18,648. The individual was fined £45,000 and ordered to pay costs of £30,789.
  • A company, a Director and another individual were sentenced.  The company will be sentenced after confiscation proceedings are concluded early this year.  The Director was given three 12 month prison sentences to run concurrently, suspended for two years.  The individual has been ordered to pay over £54,000 in fines and costs.
  • A waste company has been ordered to pay fines in the region of £1 million and costs of £243,955.35

In establishing consistency the Sentencing Guidelines provide “starting points” for the calculation of fines based on the degree of culpability of the defendant (i.e. whether the offence was committed deliberately, recklessly, negligently or whether there was low or no culpability), the extent of harm caused by the offence and for organisations, the size of the offending organisation.

Once the court has arrived at a starting point, and an appropriate range for a fine, the courts may then reduce or increase the fine with reference to various aggravating and mitigating features.

In November 2016, the Sentencing Council published a report on the impact of the sentencing guidelines on the levels of fines imposed by the courts. As expected, data collected by the Environment Agency shows that fines imposed have increased since the guidelines came into force.

The majority of cases sentenced in 2015 (67%) were for contravening environmental permitting requirements.

The most common aggravating factor cited (noted in 43% of cases) was “offending over an extended period of time (or repeated incidents)”.  Just under a third of cases (32%) cited “history of non-compliance” and a further 25% mentioned “offence committed for financial gain”.

“Evidence of steps taken to remedy problem” was the most prevalent mitigating factor, cited in 48% of cases, followed by “self-reporting, co-operation and acceptance of responsibility” (41%).

Across the board it appears that not only have the guidelines brought consistency in sentencing but also heavier sanctions both in fines, costs and other orders. In addition there appears to be an increased understanding by the courts of the gravity of the issues caused by environment offences, the impact it has on the environment and the impact on the resources of the organisations tasked with the clear up, regulation and enforcement.

Naturally, the best approach is to avoid an offence in the first place. However, the message is clear: when an offence is committed, the courts will expect to see a swift and positive response from the offender; ignoring a breach, or allowing it to continue, will only lead to greater sanction.



EU General Data Protection Regulation – All Change!

Written by freethslocalgovernment on February 3, 2017

As many of you will be aware, the new EU General Data Protection Regulation (“GDPR”) comes into effect in May 2018.  Notwithstanding Brexit, the government have made it clear that this regulation will be required to be complied with within the UK.

The GDPR places new legal obligations on organisations to maintain detailed records of personal data and processing activities and enhances the role of designated individuals responsible for data management within corporate bodies. It also gives or codifies a range of rights to data subjects such as the “right to access”, the “right of erasure” and the “right to rectify” data held concerning them.

Non-compliances can lead to substantial penalties to be imposed, based on a proportion of an organisation’s turnover.

We are planning produce training materials on the GDPR iand offer an “assurance check” to clients who would like a second opinion on the compliance status of their policies and procedures – details of which will be made available in due course. If you would be interested in this please let us know.…

LGPS Employer Discretions Policy – Are you compliant?

Written by freethslocalgovernment on September 16, 2016


All employers who participate in the Local Government Pension Scheme are required to formulate a discretions policy in accordance with LGPS Regulations. Discretions come at a cost. An employer must be satisfied that the policy is workable, affordable and reasonable having regard to foreseeable costs.

Understand your policy, understand the strategy you wish to adopt and seek legal advice..read more

Freeths’ Pensions Law Team has vast amount of experience in drafting such employer discretion policies. If you would like to discuss this further, please contact either Parminder Latimer parminder.latimer@freeths.co.uk or Anne Taylor anne.taylor@freeths.co.uk for advice.

Parminder Latimer H&S 1 small





Parminder Latimer
Partner & National Head of Pensions
0845 073 8559

Anne Taylor 2016 H&S small (6)






Anne Taylor
0845 128 6995



Judicial review – which decision is the one I am being challenged upon or should challenge?

Written by freethslocalgovernment on August 23, 2016


In theory a simple, but not always easy, question to answer.   The decision in R (on the application of the London Borough of Southwark) -v- London Fire and Emergency Planning Authority [2016] EWHC 1701 (Admin) sheds a little more light on the topic.

The background was that in 2009 there was a fire at a block of Council flats in Southwark, leading to the death of six residents and the injury of others.  There followed a thorough investigation and inquest, the possible outcome of which was that the Council might face prosecution by the London Fire and Emergency Planning Authority (“Fire Authority”).  The Council argued that the bringing of any prosecution against the Council should not be considered by the Fire Authority, but instead passed to the Health and Safety Executive.  This was because the Fire Authority had a conflict of interests by virtue of a number of factors: its fire brigade had attended the fire; were criticised over their handling of the fire; and had provided training to Southwark Council’s officers on the carrying out fire risk assessments for Council housing blocks in the Borough.   The Council argued that the conflict would render any decision by the Fire Authority to prosecute tainted with bias.

The Fire Authority denied that in deciding whether to prosecute the Council it had a conflict of interests.  It wrote to the Council along those lines on 10 July 2015.  In then later made a decision not to alter its earlier decision.  The Council argued that this gave rise to two decisions that the Court had to consider, namely, the decision of 10 July 2015 and the later decision not to alter its earlier decision.  The Court rejected the Council’s argument and concluded that …”there is but one decision that requires to be assessed.  Thus, the original decision continues to operate until it is brought into effect or reversed.  In the absence of new facts which might justify a change of approach, a second decision is not made simply as a consequence of a refusal to change the first one.  Were it otherwise, the time limit for judicial review of any decision could be restarted following a refusal request to change it ”.

Incidentally, as to whether there was a conflict of interests, the Court found in favour of the Fire Authority holding that there was neither bias nor the appearance of bias in deciding whether not to prosecute the Council.

Nathan Holden H&S small (3)





Nathan Holden
Partner and Head of Local Government
+44(0)845 077 9646