Public Law Case Update ' Q4 2023

• Published date: 20 February 2024
• Subject Matter: Corporate/Commercial Law, Government, Public Sector, Litigation, Mediation & Arbitration, Corporate and Company Law, Constitutional & Administrative Law, Trials & Appeals & Compensation, Human Rights
• Law Firm: Gowling WLG
• Author: Mr Kieran Laird, Lara Epsley and Emma Kensett

In this February 2024 edition of our quarterly case update, we offer a straightforward and concise overview of six public law and regulation cases from the last quarter of 2023 - all of which highlight important points of principle and procedure.

Gowling WLG's team of public law and regulation specialists examine the following cases and identify the key points that can be taken from them. In particular, this quarter featured a number of interesting cases on policies, which can be found at the beginning of our list:

• When can a defendant convince the court that an order is impossible to comply with? - R (Imam) v London Borough of Croydon
• Must a discretion always be subject to policy guidance? - R (Northumbrian Water Limited) v Water Services Regulation Authority (Ofwat)
• When both sides think the other has promised something - R (E.ON Next Energy Ltd) v Gas and Electricity Markets Authority
• Expert decision-making at the intersection between public and private law - R (Elliott Associates LP & Anor) v The London Metal Exchange & Anor
• Party leadership elections not justiciable - even when they choose the Prime Minister - R (Tortoise Media Ltd) v Conservative and Unionist Party
• No 'routine' redaction of names in evidence before the court - R (IAB & Others) v Secretary of State for the Home Department

When can a defendant convince the court that an order is impossible to comply with?

In R (Imam) v London Borough of Croydon, the Supreme Court considered the issue of requiring compliance with a mandatory order that the defendant argues is impossible. The case concerned the defendant council's non-compliance with the statutory duty to provide suitable accommodation following an eligible application for homelessness assistance.

There was no dispute that Ms Imam was eligible and entitled to accommodation. In fact, temporary accommodation was provided by the council in response to her application. However, following a review requested by Ms Imam, the accommodation was deemed unsuitable by the council. No alternative was provided and Ms Imam applied for judicial review.

By the time the case reached the Supreme Court, the single question was whether a mandatory order should be made to compel the council to secure suitable accommodation.

The council contended that, while it accepted it was in breach of its duty, mandatory relief should not be granted as it was experiencing severe budgetary pressures which rendered compliance impossible.

However, the Court noted that the statutory duty is not qualified by the availability of resources. For a Court to modify or moderate the substance of the duty on such grounds would undermine Parliament's legislative authority.

It acknowledged that remedies are discretionary and certain mandatory orders may be impossible to comply with, but the relevant question is what constitutes impossibility.

The Supreme Court reaffirmed the Court of Appeal's finding that the onus is on the defendant to explain why a mandatory order should not be made, and to provide a detailed explanation of its current situation and why this makes it impossible to comply. It also agreed that the defendant must show it has taken all reasonable steps to perform its duty, while noting that this is an objective assessment.

Ms Imam had additionally argued that a mandatory order should be made regardless of whether the council had a suitable property available, thus requiring it to buy or adapt an existing property or divert other resources towards compliance.

However, the Court observed that this could undermine the balance of roles between a court and local authority. A court is unaware of all the council's statutory functions and cannot decide on resource allocation between them. A mandatory diversion of funding could unduly disrupt the council's ability to meet other duties.

The Court outlined the following factors relevant to the exercise of a court's discretion in determining whether a mandatory order should be made -

1. Whether the defendant has a contingency fund to deal with unexpected costs.
2. How quickly the defendant reacted to notice of a problem relating to non-performance of a duty.
3. The impact on the individual to whom the duty is owed.
4. Whether the defendant is now moving to rectify the situation.
5. Whether the mandatory order would give a defendant undue priority over others.

Ultimately, the council had not provided sufficient explanation as to why it could not comply with the mandatory order. The case was remitted to the High Court for further consideration in accordance with the above factors.

Must a discretion always be...