Trafford v Blackpool Borough Council

In this case the claimant is a solicitor who has at all relevant times practised as such under the firm name North Solicitors, principally in the personal injury field, from office premises at the New Blackpool Enterprise Centre, Blackpool ("the Enterprise Centre"). The Enterprise Centre is owned by the defendant, Blackpool Borough Council. By these judicial review proceedings the claimant seeks to challenge the defendant's refusal to offer her a new lease of her office premises at the Enterprise Centre.

Specifically, she is aggrieved by the fact that the stated reason for the defendant's refusal is that her firm has brought claims against the defendant on behalf of clients seeking compensation for injuries alleged to have been caused by the negligence or other breach of the defendant, predominantly in highways “tripping” type claims. She is supported in her complaint by the Law Society, which has written to the court to express its serious concern about the defendant's conduct.

The defendant contends as a preliminary point that the claim has been brought out of time and that the claimant should not be granted an extension of time. The defendant also contends as a preliminary jurisdictional point that its refusal is not amenable to challenge by judicial review, since the relationship between the claimant and the defendant is one governed exclusively by private law, where judicial review has no part to play. As to the substance of the decision, the defendant contends that it was perfectly entitled to refuse to offer the claimant a new lease, and that there is no valid public law challenge to its decision.

On 23 October 2013 His Honour Judge Raynor QC, sitting as a judge of the High Court, ordered the case to be listed as a rolled up hearing, so that the substantive issues could be dealt with at the same time as the preliminary issues of delay and justiciability, should permission be granted. The rolled up hearing came on before me on 7 January 2014, when I had the benefit of written and oral submissions from counsel, for which I am extremely grateful.

I have three witness statements from the claimant herself and two witness statements served by the defendant, from a Mr Carl Baker and a Mr Peter Legg respectively. I also have documentation produced by both parties, although I should record that the claimant complains that the defendant has failed to comply with its duty of candour by producing all of the documentation and information which the claimant has requested. The claimant invites me, where appropriate, to draw adverse inferences against the defendant by reason of its alleged failures in that regard

As advanced before me, the grounds of challenge are as follows:

The claimant has been an admitted solicitor since 2002. She set up North Solicitors in early 2008 with a view to practising primarily in the personal injury litigation field. She has done so with success since that time, so that by mid 2013 there were five people working in the practice. Over the years her firm has advised and acted for a number of clients who have brought personal injury claims against the defendant, particularly tripping claims. That, however, is only one element of the practice, and there is no suggestion or evidence that her firm has acted in any way illegally or improperly in relation to the bringing of such claims, whether for example in relation to the manner in which it obtained clients or by colluding in the bringing of false or exaggerated claims.

In 2008 the claimant needed office space and she found it at the Enterprise Centre. That is a modern building, constructed in 2007 on the site of a 1930’s lido swimming pool. As stated in the brochure prepared on the defendant's behalf in September 2007 for the use of prospective tenants, it provided "modern office accommodation aimed at start-up and developing businesses from primarily the Blackpool area", and was intended to be a "key focal point stimulating the creation of a new generation of businesses, jobs, advice and ideas coordinated by strong partnership working between the Council, agencies, the private sector and the community ensuring opportunity for all".

Under the section headed "tenant selection" the brochure stated:

“The principal aim of the Enterprise Centre is to act as an accelerator to developing new innovations and consequently increasing economic growth and prosperity in the Blackpool area. Emphasis will be placed on key elements such as new start-up businesses and expansion of existing businesses, which creates new employment opportunities especially for the local population.

The Enterprise Centre Management Board will decide on an applicant’s suitability. Respective tenants are therefore encouraged to enclose a copy of their business mission covering such areas as growth, marketing and, of course, employment.”

As Mr Legg, the defendant's head of economic development, explains in his witness statement, the Enterprise Centre is a purpose-built managed facility with 30 office units, owned and operated by the defendant. The construction of the building was funded in part by a grant from the European Regional Development Fund, which stipulated that the units could only be occupied by private sector businesses falling within the EU definition of a small and medium sized enterprise (“SME”). Accordingly, potential tenants would have to complete and submit an application form to demonstrate their eligibility and suitability and their reasons for wanting to take an office unit in the Enterprise Centre. If deemed eligible and suitable, the defendant would offer them an office unit, subject to satisfactory references being received. As explained in the brochure, the units were offered on three year leases, which were to be "contracted out leases", meaning that the right to request a new lease, conferred by Part II of the Landlord and Tenant Act 1954 in relation to business tenancies, was to be expressly excluded.

As Mr Legg also explains rents are set at standard market rents, although the defendant has, in accordance with standard commercial property practice, been willing to offer initial rent free periods to attract new tenants. Tenants are also eligible for the defendant’s discretionary hardship relief scheme, which may be granted in exceptional circumstances, and which is 50% funded by central government. Furthermore, qualifying tenants may apply for relief under the national small business rate relief scheme.

In accordance with that procedure, the claimant successfully applied for an office unit at the Enterprise Centre and was granted a three year contracted out lease of unit 22 in March 2008. In 2010 the claimant, wanting more space than was available in unit 22, requested and was granted a three year contracted out lease of unit 30 in June 2010. At the same time as entering into that lease, the claimant was required to and did make a statutory declaration in accordance with the requirements of the 1954 Act to confirm that she was aware that the consequence of contracting out of Part II was that she would have to leave the premises when the lease ended, unless the landlord chose to offer her another lease. Both leases also had provisions whereby either party was entitled to terminate the lease on one month's written notice, given at any time.

At no time did the defendant express to the claimant that it had any concerns or reservations about her occupation of office space in the Enterprise Centre on the basis of her firm's activities. However, at a meeting of the defendant's Corporate Asset Management Group (“CAMG”), held on 27 November 2012 and chaired by Mr Baker, there was a discussion about the claimant and her firm's activities. Mr Legg explains in his witness statement that the CAMG would not normally become involved in decisions about individual tenants, which would be delegated to him and his staff, and that this discussion appears to have been initiated by the CAMG of its own accord. The minute of the discussion, as disclosed by the defendant, reads as follows:

Mr Auburn leading for the claimant complained that the defendant had failed to disclose the report referred to in that minute. Nonetheless even without sight of that report it is clear from the minute itself, and confirmed by the claimant's own evidence, that the Enterprise Centre was never fully occupied, so that the defendant was never receiving full rental from the building and nor, it follows, was there any question of demand for office space at the Enterprise Centre exceeding supply.

Mr Baker in his witness statement gave evidence about this in the following terms:

“8.

It had been brought to the attention of the CAMG that one of the existing tenants of the Enterprise Centre, North Solicitors, had recently brought a substantial number of claims against the Council.

9.

The majority of the claims brought were for tripping and associated highway claims. Given the sudden increase in volume, the number of claims overall and the nature of the claims, it was inferred that these were "claim farmed" claims.

10.

High volume claims such as these are a considerable drain on the Council and divert resources from the Council's core functions of providing services and infrastructure for the benefit of the residents of the Borough. As such the Council considers that such claims are contrary to its interests.

11.

The Council is well aware that it cannot prevent any person from carrying on business in any manner they see fit, provided that it is lawful. The Council can however choose who it enters into commercial relationships with, be it as landlord and tenant or otherwise.

12.

The question of the claimant's tenancy of unit 30 was discussed by the CAMG and in all the circumstances a decision was taken to end the Council's relationship with the claimant as soon as possible.”

Mr Auburn criticised this evidence as being a self serving retrospective reconstructed account of the meeting, and the reasons for reaching the decision made at that meeting, which is not supported by any disclosed contemporaneous documentation. The defendant however points to the information contained in its summary grounds of defence, showing that in 2012 113 claims were brought against the defendant compared with 18 in the previous year and only 1 in the year before. I also note that although the claimant in her witness statement in response dated 18 October 2013 contests the relevance of that data she does not contest its accuracy. Whilst of course it is true that the total number of claims issued by the end of 2012 could not have been known at the meeting on 27 November 2012, there is no reason in my judgment to consider that those present at the meeting were not aware that a substantial number of such claims had been made in the year to date. Mr Baker’s evidence seems to me to be broadly consistent not only with the minute itself but also with the reasons given by the defendant for its decision in subsequent correspondence in June, July and August 2013, and I see no reason to disbelieve it.

In short, it seems to me that the CAMG was aware of the recent upsurge in claims brought against it by the claimant on behalf of its clients, decided that the claimant had been targeting such claims, took the view that such claims were adverse to the defendant’s financial interests, in that dealing with them cost the defendant time and money which, like any other council in the current economic condition, it could ill afford, and decided as a result that it did not want to have any continuing commercial relationship with the claimant, so that it would terminate the lease as soon as possible.

A question has been raised as to the defendant’s intention, purpose or motive in taking the step which the CAMG resolved to take at the meeting. It is obvious in my judgment that the CAMG would have known that the immediate effect of the action if implemented would have been to inconvenience the firm, in that it would have needed to find alternative office accommodation, and that any accommodation it might have been able to find might not have offered the same advantages as those offered by the newly constructed fully equipped and staffed Enterprise Centre. However in my judgment there is no basis for finding that those taking the decision had any reason to think that the firm would have been unable in due course to find broadly suitable alternative accommodation in the Blackpool area at broadly comparable rates. Although the claimant says in her evidence that having made enquiries as to what would happen should she have to leave the Enterprise Centre she has been unable to locate suitable alternative accommodation, particularly accommodation accessible to disabled clients, not only is there is no independent evidence to confirm this, for example by way of statement from a local commercial estate agent, but there is no evidence or reason to believe that the defendant would have known that this was the position in November 2012.

Thus I do not consider that I could properly conclude that the CAMG’s intention, purpose or motive was to cause serious damage to the firm, by forcing it to relocate to unsuitable premises or to premises out of the Blackpool area, let alone to cause it to close down. Further, there is absolutely no evidence that the CAMG’s intention was to seek to pressure the firm to stop taking on tripping claims against it, because there is no evidence that there was any intention, acted on or otherwise, to inform the claimant that any decision whether or not to offer a new lease might depend on whether or not she continued to take on claims against the defendant. Yet further, and for the same reason, there is no basis for me to conclude that the CAMG’s intention, purpose or motive was to prevent or dissuade individual personal injury claimants from taking or pursuing claims against the defendant. Indeed, as Mr Auburn submitted, in such circumstances it is difficult to know what the decision was intended to achieve, since on the facts as reasonably known to the CAMG at the time there was no good reason to believe that it would have had any effect in preventing tripping claims from being made against the defendant, whether by the claimant or otherwise.

The conclusion I reach is that the CAMG was so aggrieved by what it regarded as the claimant’s unacceptable conduct, as a tenant of the Enterprise Centre, in actively farming for tripping claims to bring against the defendant that it decided to retaliate by seeking to terminate that tenancy as soon as it could. It was determined to send a message to the claimant that the defendant was not prepared to sit back and do nothing in the face of such conduct. I suspect that it was also wishing to send out a similar message to the local legal sector as a whole. It was prepared to take this action even though it was aware that the loss of the claimant as a tenant would adversely impact the financial position of the Enterprise Centre. There is no evidence and I am not prepared to assume in the defendant’s favour that it undertook an assessment of the immediate financial cost to the Enterprise Centre against any potential longer term financial saving which might result from any dissuasive effect of its decision. It was, in short, I find, an act of retaliation, pure and simple, to “punish” the claimant’s firm by causing it some difficulty and inconvenience, I am not satisfied, as I have said, that it was aware, or intended, that the consequence of its actions would be to cause the claimant’s firm serious difficulty or damage or that it intended to force the claimant’s firm into giving up taking on tripping claims against the defendant.

In fact, however, the CAMG’s decision to “terminate the lease as soon as possible” was not implemented, as it could have been, by the defendant serving 1 month’s written notice of termination under clause 7.3. Nor did the defendant inform the claimant of what the CAMG had decided to do, or why, nor did it give the claimant any opportunity to make any representations about that decision. Instead, a decision was taken to implement the decision by not offering the claimant a new tenancy when the current one expired, which it communicated to her in a letter dated 24 April 2013. The letter, sent by Mr Gunson, a surveyor employed by the defendant, on behalf of Mr Legg simply stated that since this was a contracted out lease it would determine on 14 June 2013, when the claimant would need to vacate the premises, and that Mr Gunson had been "instructed by the Head of Economic Development not to offer you a new tenancy". The letter was sent to the claimant at the address stated in the lease as being her address. Although the claimant has stated, and the defendant does not contest, that she did not receive or become aware of the letter because she had moved address in the meantime, equally there is no evidence that the defendant was aware of this at the time. Indeed by further letter dated 31 May 2013 Mr Gunson wrote to the claimant restating the content of the previous letter, but also indicating that the defendant was willing to allow the claimant to continue to occupy the premises as a tenant at will until 31 July 2013 if she wished. Further it is the case that the claimant, despite the fact that she ought to have been aware that unless the defendant offered her a new lease she would need to have to make preparations to vacate by mid June 2013, took no positive steps to request one or indeed to find alternative premises.

On 3^rd June 2013 Mr Gunson copied the letters to the claimant at her professional e-mail address, which is when she says that she first saw them. Her evidence, consistent with subsequent correspondence, and not contradicted by the defendant, is that when her business adviser telephoned to ask why the defendant was not prepared to offer her a new lease, he was told that she was on a "blacklist". When she asked for an explanation Mr Legg replied by e-mail dated 10 June 2013 in these terms:

“The council reserves the right not to renew a lease for any one of its properties and chooses to do so in this instance.

You requested a reason for the decision. Put simply, the council's corporate insurance policy is reaching unprecedented levels. In broad terms the council's view is that the practice of North Solicitors, and other similar personal injury lawyers, runs contrary to the interests of the council. We cannot dictate the nature of the work that you do, but we are in a position to review who resides in our tenanted properties.”

On 5 July 2013 the claimant wrote a formal letter of complaint to the defendant, complaining that the refusal to offer a further lease was unfair and unlawful, that the council was operating a "secret and completely arbitrary policy against personal injury solicitors in general and against North Solicitors in particular", and that she had been denied any information or disclosure about the decision-making process. On 9 July 2013 the defendant produced a written response, signed by the leader of the council, which read as follows:

Mr Auburn has submitted that the response from Mr Legg shows that the defendant was indeed operating a secret policy against the claimant and other claimant personal injury solicitors in general. I do not accept this. There is no evidence that this was anything other than a one-off decision, taken in response to a one-off situation. That is because there is no evidence that there is any similar relationship between the defendant and any other firm of claimant personal injury solicitors, no evidence that the defendant has chosen not to offer, or to withdraw, facilities to any other firm of claimant personal injury solicitors, and no evidence that the defendant has made a decision to adopt a policy to that effect in relation to any other firm of claimant personal injury solicitors. I bear in mind Mr Auburn's complaint about the defendant's failure to make full and proper disclosure, but I have no doubt that if the defendant had indeed adopted a policy to that effect, it would have made disclosure of it, as indeed it did disclose the minutes of the meeting of 27 November 2012, and I also have no doubt that if the defendant had implemented such a policy in relation to any other firm of claimant personal injury solicitors then it would have made disclosure of that fact and, even if it did not, the claimant would have come to learn about it through the local legal grapevine.

Mr Auburn also submitted that the response from the leader of the defendant council was quite clearly wrong. He took me to the defendant's website, where it recorded its "values, vision and priorities" as including the value of being "committed to being fair to people", and as including the priorities of "attracting sustainable investments and creating quality jobs" and "encouraging responsible entrepreneurship for the benefit of our communities".

Mr Auburn submits, and I agree, that the defendant has failed to provide any evidence to support the allegation, made by the leader of the council, that the nature of the claimant's business was "wholly contrary" to the defendant's stated aims and objectives. The claimant has produced evidence from the Solicitor Regulation Authority to the effect that so far as they are concerned both she and her firm have an unblemished reputation. As I have said the defendant has not even suggested, let alone produced evidence, that the claimant's firm has engaged in any improper behaviour in relation to obtaining instructions from would-be claimants or been in any way complicit in bringing false or exaggerated claims against the defendant. Insofar as the complaint is made of "claims farming", as Mr Auburn submits there can be no proper objection to solicitors taking lawful or permitted steps to publicise their services or making would-be claimants aware of their right to seek compensation from bodies, such as the defendant, whose negligence or breach may have caused them to suffer personal injury.

As Mr Auburn submits, and as the Law Society emphasises in its letter to the court, there can be no conceivable basis for any criticism of a firm of solicitors who, acting in accordance with the law and the relevant professional rules, enable genuine claimants to obtain access to justice so as to claim compensation for injuries sustained as a result of the breach of public bodies such as the defendant.

On 8 August 2013 the claimant wrote a formal letter before claim in accordance with the pre-action protocol to the defendant. She asked for a response by 15 August 2013. The defendant responded by letter dated 22 August 2013 rejecting the claim, denying that there was any policy, and taking the point that the complaint was not one which was amenable to judicial review, being a matter of private law.

Completing the chronology, the proceedings were issued on 4 September 2013. The defendant, acting reasonably, has granted the claimant a tenancy at will pending the determination of these proceedings, so that her firm remains at unit 30 for the present. She has also transferred her practice to a limited company, which has itself made a request for a tenancy at the Enterprise Centre, but the defendant has said that it will not consider this request until this action is determined.

That completes my recital of the facts, and I now turn to the individual issues.

In my judgment the decision which was made on 27 November 2012 was neither acted on nor communicated to the claimant. The decision which is in reality the subject of this case, namely the decision not to offer her a new lease commencing on expiry of the June 2010 lease, was communicated to the claimant by the defendant’s letter of 24 April 2013. The claimant cannot say that it was not communicated, when it was sent to her at the address stated in the lease, and when there is no suggestion that this was not, so far as the defendant was concerned, her usual or last known address – see clause 13 of the lease.

However I accept that the claimant did not in fact receive it until 3 June 2013. Further I also accept that it was not until 4 June 2013 that she first became aware that the reason for the decision was because her firm was being blacklisted. She issued proceedings just within 3 months from that date.

After 4 June 2013, acting entirely reasonably in my judgment, she: (a) asked for a written confirmation and explanation, (b) having received the response from Mr Legg, made a formal complaint and – effectively – a request for a review or reconsideration by those higher up in the council than Mr Legg; (c) having received the response from the leader of the council, she reasonably promptly sent a detailed pre-action protocol letter of claim; (d) having received the detailed response, she reasonably promptly produced and issued the claim. Whilst I accept that she could have acted a little more speedily at each stage, there was no significant delay at any stage and, taken overall, it seems to me that she acted reasonably promptly.

Further, this is a case where in my judgment the claim on any view falls on the right side of arguability and I do accept, as evidenced by the interest which the Law Society has taken in the case, that it does raise points of wider public interest.

Still further, this is not a case where the defendant can say, or does say, that it has suffered any prejudice as a result of the delay, in circumstances where it is still receiving rent for the unit from the claimant and where there is no suggestion that any third party is disadvantaged by the unit not being available for letting.

In all of the circumstances I exercise my discretion to extend the time for this claim to be brought.

This point lies at the forefront of the defendant’s response to this claim, and has been very fully and ably argued on both sides.

In short, the claimant’s position is as follows:

In short, the defendant’s position is as follows:

I have been referred to a number of authorities on both sides relevant to the issue as to whether or not, and if so in what circumstances, a public body acting under statutory powers in deciding whether or to not to enter into, renew or terminate a contract will come under public law duties, and if so which ones.

The first in time is a decision of Latham J (as he then was) in R v London Borough of Camden, ex p Hughes, 21 December 1993 (unrep). In that case the council had decided in the exercise of its statutory power under s.123 LGA ’72 to sell a property, and had given the claimant to understand that the decision would be made solely on financial criteria, and that on that basis the council would sell the property to her. However the council then changed its mind and decided to have regard to social as well as financial considerations and, having given the claimant a limited opportunity to submit further representations, decided to sell to the other interested party, albeit that it also decided to pay compensation to the claimant for any financial loss suffered as a result of its change of approach.

As relevant to this case, Latham J decided that:

Next in time is the decision of the Privy Council in Mercury Energy Ltd –v- Electricity Corporation of New Zealand Ltd [1994] 1 WLR 521. Lord Templeman, giving the judgment of the Privy Council, said, at 529B:

“It does not seem to me likely that a decision by a state enterprise to enter into or determine a commercial contract to supply goods or services will ever be the subject of judicial review in the absence of fraud, corruption or bad faith.”

There is then a decision of Keene J (as he then was) in R v Bolsover DC ex p Pepper (3 October 2000, unrep.), where the claimant had sought to challenge the defendant council’s refusal to sell an access strip of land to him under the power conferred by s.123 LGA ‘72, relying on legitimate expectation, in circumstances where the council had earlier indicated that it would be prepared to do so, but in correspondence headed “subject to contract”. Having referred to a number of earlier authorities Keene J said, at paragraph 33:

“ Normally a decision by a local authority to sell or not to sell land which it owns is to be seen as a private law matter unless a public law element is introduced into the decision making process by some additional factor. That is because the starting point is that the local authority, in so deciding, is simply acting as a landowner in such cases and is not performing any public function. There may sometimes be some additional factor present; for example, if the authority has a policy which relates to the retention or disposal of certain types of land, that may make a decision a public law matter …”

That decision was the subject of consideration by Elias J (as he then was) in Molinaro v Kensington & Chelsea BC [2001] EWHC Admin 896. In that case the claimant sought to challenge the defendant council’s refusal to consent to a change of use under a user clause in a commercial lease, notwithstanding that the claimant had obtained planning permission for that change of use. Although the claimant’s challenges, based on illegality, irrationality and legitimate expectation, failed on the facts, Elias J also had to consider a defence based on amenability, on the footing that in deciding whether or not to grant consent the defendant was exercising a private law function and thus could be liable only for breach of private law obligations. The defendant had placed considerable reliance upon Pepper in submitting that that in such circumstances the decision was not amenable to judicial review.

Elias J held that on the facts the defendant’s argument was unsustainable, because it was seeking to give effect to its planning policy and objectives in refusing permission under the lease, and thus there was a sufficient public element for the decision to be amenable to judicial review. However he went on to express his views more widely in paragraphs 65 – 73, which I set out in full:

“65.

In my view, the fact that a local authority is exercising a statutory function ought to be sufficient to justify the decision itself being subject in principle to judicial review if it is alleged that the power has been abused. Nor do I see any logical reason why an abuse of power made pursuant to some policy should be treated differently to one made on a specific occasion.

66.

Of course, in many circumstances the nature of the complaint is one that identifies no public law principle. In such cases the fact that the defendant is acting pursuant to statute is irrelevant…

67.

But public bodies are different to private bodies in a major respect. Their powers are given to them to be exercised in the public interest, and the public has an interest in ensuring that the powers are not abused. I see no reason in logical principle why the power to contract should be treated differently to any other power. It is one that increasingly enables a public body very significantly to affect the lives of individuals, commercial organisations and their employees.

68.

Moreover, there are a host of important cases where decisions relating to contracts have been subject to the principles of judicial review to prevent the power being unlawfully exercised. In Roberts and Hopwood, for example, to which I have already made reference, the court held that certain contractual terms were unlawful. In R v Lewisham London Borough Council ex parte Shell UK Ltd [1988] 1 All EMPLOYER 938 and Wheeler v Leicester County Council (1985) AC 1054 decisions of the councils involved not to contract with organisations to whom they were ideologically unsympathetic, were held to be unlawful. Similarly there have been decisions which recognise that in appropriate circumstances the decision to terminate a contract might be subject to judicial review principles: see for example the Court of Appeal in R v Hertfordshire County Council ex parte Nupe [1985] IRLR 258 and, in the context of a lease, the decision of the House of Lords in Wandsworth London Borough Council v Winder [1985] AC 461.

69.

In my opinion, the important question in these cases is the nature of the alleged complaint. If the allegation is of abuse of power the courts should, in general, hear the complaint. Public law bodies should not be free to abuse their power by invoking the principle that private individuals can act unfairly or abusively without legal redress. But sometimes the application of public law principles were cut across the private law relationship and, in these circumstances, the court may hold that the public law complaint cannot be advanced because it would undermine the applicable private law principles.

70.

I would respectfully suggest that the Bolsover case can be justified on that basis. As the learned judge pointed out, it would have undermined the operation of the private law of contract, and would have put public bodies as a significant disadvantage, if the doctrine of legitimate expectation could be used to defeat the right of public bodies to withdraw from a proposed contract whilst leaving the other party free to do so.

71.

However, in other cases, including some I have cited, public law principles have been superimposed upon the private law relationships. The two are not necessarily incompatible. The facts of each case will need to be carefully considered to determine whether they can properly coexist."

Although Elias J did not explain in terms what is meant by an allegation of "abuse of power", it is clear that he was envisaging that in appropriate cases a claimant would be entitled to challenge decisions of public bodies relating to contracts in circumstances outside the limited categories of fraud, corruption or bad faith identified by Lord Templeman in the Mercury case. The further cases provide some, although not complete, assistance on that point.

Thus Mr Auburn referred me to the decision of the Court of Appeal in Cookson & Clegg v Ministry of Defence [2005] EWCA Civ 811 where Buxton LJ, in a judgment with which the other two members agreed, said that public law would not be excluded from a contract awarding process “for instance, if there were bribery, corruption or the implementation of a policy unlawful in itself, either because it was ultra vires or for other reasons”.

There is then the decision of the Court of Appeal in Hampshire County Council v Supportways [2006] EWCA Civ 1035, where both Neuberger LJ (as he then was) and Mummery LJ made some observations pertinent to this point.

Neuberger LJ stated, at paragraphs 37 and 38:

“37.

Mr Knafler next relied on the fact that the nature of the Agreement, involving as it did the Council performing public administrative functions, was such that a claim brought under it would be a public law claim. That cannot, I think, be right. Virtually any contract entered into by a local authority, almost by definition, will involve it acting in such a way, as otherwise it would be acting ultra vires. Yet, it is clear that, as Mr Knafler rightly accepts, in the case of alleged breaches of many such contracts, a private law claim is the only type of claim which can be brought.

38.

Thus, the mere fact that the party alleged to be in breach of contract is a public body plainly cannot, on its own, transform what would otherwise be a private law claim into a public law claim. There are, of course, circumstances where, in a contractual context, a public body is susceptible to public law remedies. However, where the claim is fundamentally contractual in nature, and involves no allegation of fraud or improper motive or the like against the public body, it would, at least in the absence of very unusual circumstances, be right, as a matter of principle, to limit a claimant to private law remedies.

Mummery LJ made the following observations:

“53.

In this case the public law challenge is to the validity of a decision or action by the local authority at the instance of the party with whom it has made a legally enforceable contract for the delivery of specified services. The decision of the judge hearing the application for judicial review to make an order for specific performance of the contract, on an amendment to plead an alternative private law claim, has generated interesting arguments discussed by Neuberger LJ. I wish to make a few brief comments on some of them.

54.

First, neither side has taken up an extreme position. Mr Knafler for the Company has not contended that judicial review is available against the Council simply because it is a public authority. Mr Straker for the Council has not argued that the mere existence of a relevant contract excludes the possibility of judicial review against a public authority.

55.

Secondly, a public authority could, in principle, both be subject to claims in private law for breach of contract and to judicial review for breach of public law duties or abuse of public law powers in connection with a contract made by it.

56.

Thirdly, in order to attract public law remedies, it would be necessary for the applicant for judicial review to establish, at the very least, a relevant and sufficient nexus between the aspect of the contractual situation of which complaint is made and an alleged unlawful exercise of relevant public law powers.

..

59.

Fifthly, I agree with Neuberger LJ that this was not a public law case. The action of the Council in conducting the support services review was not amenable to judicial review, because there was no sufficient nexus between the conduct of the review and the public law powers of the Council to make this a judicial review case. The required public law element of unlawful use of power was missing from the support services review.”

Finally, Mr Auburn referred me to the decision of Beatson J (as he then was) in Bevan & Clarke LLP & others v. Neath Port Talbot BC [2012] EWHC 236 (Admin), where in a section beginning at paragraph 44 Beatson J considered the question of amenability in the context of a decision about setting a rate to be paid to care home providers. In dealing with a submission by counsel for the defendant, founded on the Mercury case, that the scope of the review was narrow and confined to fraud, corruption or abuse of power, he held (paragraph 53) that “abuse of power” would extend to what he described as “the conventional grounds of failure to take account of relevant considerations or to exclude irrelevant considerations, propriety of purpose, and perversity, Wednesbury unreasonableness or Diplockean irrationality”. He went on to hold that in a case such as the one before him, then subject to two particular qualifications “the scope of review in principle extends to all of the conventional public law grounds”: paragraph 54.

I also note that in his decision in A v Chief Constable of B Constabulary [2012] EWHC 2141 (Admin) Kenneth Parker J referred to what he described as a clear and well-reasoned article by Professor Stephen Bailey in Public Law 2007 at pages 444-463, which I have found informative.

Finally, I should note the distinction between an improper and an irrelevant purpose, identified in De Smith’s Judicial Review (7^th edition), where the authors, at paragraph 5-082 to 5-090, consider that an allegation of improper motive or improper purpose, with the connotation of knowing pursuit of an improper purpose, is more akin to an allegation of bad faith than to the other cases of illegality. The same point is made by the authors of Judicial Review Principles and Procedure at paragraph 16.04.

Having considered these authorities my conclusions are as follows:

Applying those principles, I accept that the defendant is entitled to say that the starting point is that the decision must be considered in the context of its being a decision under s.123 LGA ’72, which confers an extremely wide and, in the context of a short lease such as the present, virtually untrammelled power. Thus there are no specific statutory restrictions or limitations on the exercise of the discretion whether or not to dispose of council land, nor is there any statutory guidance in such respect. Furthermore, the premises comprise commercial premises let under a commercial lease on a commercial rent, and the specific decision under challenge was a decision not to offer a new lease to someone who had no right to request a new lease because the statutory right of renewal available in the case of business tenancies had been validly contracted out.

However the claimant is also entitled to say, as she does, that even though the defendant’s discretion under s.123 in this case is not subject to statutory restriction or guidance, nonetheless the defendant has chosen to promote a policy in relation to tenancy selection criteria, under which the defendant has stated in clear terms that it has delegated the decision on the suitability of an individual applicant to the Enterprise Centre management board, to be taken by reference to specific criteria, namely whether or not they are new start up businesses or expanding existing businesses, whether or not they are from the Blackpool area, and whether or not they create new employment opportunities, especially for local population. The claimant is also entitled to say, as she does, that this is in the context of the Enterprise Centre having been built with public funding, including funding from the ERDF with tenant eligibility conditions, and having been operated on the basis that there will be support agencies located in the Enterprise Centre which can assist tenants with their business development, and with obtaining access to public funding in the form of the discretionary hardship relief scheme and the national small business rate relief scheme. Thus, this is not solely a purely arms length commercial relationship.

The claimant is also entitled to say, in my judgment, that this is not a case of her seeking to challenge the defendant’s decision to enter only into contracted out leases, so that she had no right of renewal under Part II of the 1954 Act. Instead, it is a case of her having been subjected to a decision that the defendant would not even consider a request by her for a new tenancy once her existing tenancy expired, even though this was always clearly an option, as recorded on the statutory declaration signed by her at the time she entered the 2010 lease. In short, the effect of the CAMG’s decision was that the defendant had decided, by reference to her firm’s professional activities as the defendant had decided them to be, and in advance of any request the claimant might make for a new tenancy, that it was not prepared to consider any such application on its merits, by reference to its published tenant selection criteria.

In that context, the claimant is contending that the decision is vitiated:

In my judgment all of these challenges are genuine and substantial. There is in my judgment a sufficient public law element or connection to render the decision amenable to judicial review on all such grounds. At the very least there is a sufficient public law element or connection to render the decision amenable to judicial review on the ground of abuse of power, whether categorised as improper or unauthorised power.

In the circumstances, I am satisfied that the decision is in principle amenable to judicial review.

The claimant's case, as summarised in her skeleton argument, is that the defendant has exercised the power conferred on it for the improper or unauthorised purpose of seeking to cause detriment to the claimant, even though her firm is acting entirely lawfully, in assisting local people to obtain access to justice. Mr Auburn referred me to four cases where, he submitted, the courts had struck down decisions of public bodies which were motivated by the desire to punish those with whom it disagreed.

The first is that of Wheeler v Leicester City Council [1985] AC 1054. In that case the city council, disapproving of the Leicester Rugby Club’s refusal, as it saw it, sufficiently to align itself with the council's own view on the decision by the English Rugby Football Union to send a touring team to play in South Africa, resolved to suspend the club's existing permitted use of one of the council's recreation grounds for matches and training. The House of Lords unanimously agreed that the council was not entitled to do so. Lord Roskill reached his decision firstly on the ground that the council's decision was Wednesbury unreasonable or irrational, and secondly on the ground of procedural impropriety, because the way in which the council had gone about attaining its (perfectly proper) objective of promoting good race relations in the city was unlawful, having regard to its duty to act fairly. Lord Templeman, who gave the other reasoned speech, reached his decision on the simple ground that since the club had committed no wrong, the council could not use its statutory powers to punish them, and misused its powers in so doing. In short, it appears to me that the decision in Wheeler is authority for the proposition that a public body has an overarching duty to act fairly when seeking to achieve its objectives in exercising its public functions and, by seeking to use those powers to punish someone who had not acted in any way which could properly justify such punishment, it misused its powers and, thus, acted unlawfully and Wednesbury unreasonably.

The second is that of R v London Borough of Ealing ex parte Times Newspapers Limited [1987] IRLR 129, where the Divisional Court quashed a decision of certain local authorities not to stock copies of newspapers published by the Murdoch group in support of print workers in industrial dispute with that group. It is clear from the judgment of Watkins LJ (at paragraph 49 of the report) that the decisions were unlawful because they were motivated by an ulterior objective amounting to an irrelevant consideration, namely the intention to support the strike action against the Murdoch group, and also because in such circumstances the decision was irrational.

The third is that of R v Derbyshire County Council ex parte Times Supplements Limited (1990) 3 Admin LR 241, where the local authority ceased placing advertisements in Times publications because the newspaper had printed criticisms of the council's activities. It was held by the Divisional Court, in a robust judgment, that the decision should be quashed. Watkins LJ said as follows:

“As judicial review has developed over the last several decades it has become more and more clear that councils must act in good faith in taking decisions on behalf of the public and not allow those decisions to be founded upon irrelevant or inappropriate considerations, especially if the object of doing so is to advance an improper purpose. As is stated in Wade, Administrative Law sixth edition (1988) as to powers conferred by statute upon a local authority, almost all powers possessed by a local authority have been conferred by statute, and possessed "solely in order that it may use them for the public good".

I fail to see how it could ever be said that a decision of a local authority taken in bad faith or otherwise for improper purpose can have arisen from the exercise of power for the public good. If, as Mr Lester suggested, the removal of advertising from the TES to the Guardian only arose from a vendetta by the county council against the Times Newspapers Ltd I would regard this court as under a direct positive duty in the public interest to strike down such a decision."

The fourth is that of R v Lewisham LB ex parte Shell UK Ltd [1995] 1 All ER 938, where the Divisional Court applied the principles expounded in Wheeler and held that where the purpose of the council's decision, to adopt a policy of banning all Shell products, was not merely to promote good race relations in its borough but also to put pressure on Shell to procure its group to withdraw from South Africa that latter purpose, being extraneous and impermissible, was inextricably mixed up with the former purpose, which was lawful, with the effect that the decision as a whole was vitiated.

The fifth, and final, decision, is that of the Court of Appeal in R v Somerset County Council ex parte Fewings [1995] 1 All ER 513, where the Court held, by a majority, that the council's decision to ban deer hunting from council land was unlawful, not because it was wrong as such for the council to have regard to the issue as to whether deer hunting was an unacceptable and unnecessarily cruel activity, but because they had failed to have regard to the need to consider all relevant considerations in the context of the difference between the unfettered freedom given to a private landowner and the more circumscribed freedom given to a public landowner.

In its skeleton argument the defendant submits that it was entitled to take into account its financial interest in discouraging personal injury claims in deciding whether or not to grant a new lease to the claimant, because it considered such claims to be contrary to its interests, and that given the wide and untrammelled discretion conferred by s.123 LGA ’72 there was nothing unlawful in its reaching the decision which it did. It submits that it was not required to give a reason for its decision not to grant a new lease, and the fact that it referred to this particular reason does not vitiate its decision. It submits that the decision was not taken with a view to causing detriment to the claimant, as opposed to promoting its own genuine assessment of its own financial interests.

I accept that the defendant did indeed have a wide discretion under s.123 LGA ’72, and that it was entitled to have such regard as it considered appropriate to all relevant considerations. I also accept that it was not bound to have regard only to those factors identified in the tenant selection criteria. I also accept therefore that it would have been perfectly proper for the CAMG to have regard to the nature of the claimant’s business, and its assessment of any financial benefit conferred by or any harm inflicted on the wider community, including the defendant itself, arising from the claimant’s business, when deciding whether or not to offer the claimant a new tenancy.

However, I also consider that the defendant was under a duty not to exercise its discretion for improper or immaterial purposes. Here, as I have found, there is no evidence that the defendant conducted a rational assessment of all relevant considerations, including the extent to which the claimant met the published tenant selection criteria and the nature of its business having regard to the wider community interest including that of the defendant itself. Instead, I am satisfied that, based upon its conclusion that the claimant’s firm was engaged in claims farming which harmed the defendant’s own financial interests, the only consideration which it had regard to when deciding whether or not even to consider a request by the claimant for a new tenancy was its desire to punish the claimant for engaging in that activity by subjecting her firm to some difficulty and inconvenience, without having any regard to whether or not that would achieve any benefit for the wider community interest or indeed the defendant’s own financial interests. In my judgment that conclusion is justified by:

It follows, I am satisfied, that the defendant failed to exercise its power to promote the purpose for which it was conferred, having regard not just to the wide power conferred by s.123 itself but the circumstances in which the Enterprise Centre was constructed and operated at public expense and for public good and in which the defendant promulgated and implemented a policy as to the selection of tenants. The exercise of a power with the sole or the dominant intention of punishing the claimant and subjecting her firm to a detriment, in circumstances where there was no evidence that the claimant was actually doing anything at all unlawful or improper, was in my judgment the intentionally improper exercise of the power conferred on the defendant and the exercise of that power for unauthorised purposes. It was also objectionable in that the defendant, through the CAMG, was by so deciding seeking to fetter its discretion, by deciding in advance that it was simply not going to entertain any request by the claimant for a new tenancy, regardless as to whether or not she satisfied the tenancy selection criteria. It was also particularly unfair because, insofar as the CAMG formed the view that the claimant’s firm had been claims farming and causing the defendant financial harm, it failed to take any steps, whether asking the claimant or otherwise, to consider whether or not there was actually any evidence of claims farming, whether whatever claims farming there might have been was in any way illegal or improper, whether or not the result of whatever claims farming there might have been was leading to false or exaggerated claims, and whether or not there was any basis for considering that if so the claimant was in any way complicit in or aware of such fact.

Even if I am wrong about that, and the CAMG was in part motivated by its assessment that the business of the claimant’s firm was, simply by reason of it being a claimant personal injury firm taking on tripping cases against the defendant, not one which the defendant would wish to support through the Enterprise Centre whether in the wider community interest or in its own financial interest, it still seems to me that the CAMG was also motivated by an illegitimate consideration, namely its desire to punish the claimant. In such circumstances I take the view, as did the Divisional Court in ex p Shell, that the purposes were inextricably mixed with the effect that the decision as a whole was vitiated.

Moreover, and even if the CAMG was in part motivated by an assessment that by taking that decision it would in fact operate to reduce the number of tripping claims made against it, so that it was in its own financial interests to so act, nonetheless by failing to have regard as well to the question as to whether or not the claimant met the tenancy suitability criteria the CAMG failed to consider all relevant considerations, given that the tenancy suitability criteria was something which it had decided to operate as its own published policy. In the circumstances I take the view, as did the Court of Appeal in ex p Fewings, that the decision is vitiated by the failure to have regard to all relevant considerations.

For all of those reasons I am satisfied that the decision was fundamentally tainted by illegality and, for that reason, should be quashed.

As Mr Auburn accepted in his skeleton, his primary ground under this head, namely that the decision was both vindictive and capricious, overlaps to a considerable extent with the first head, as indeed it did in a number of the cases upon which he relied under ground 1.

I must bear in mind, as the defendant submitted, that I must be careful not to conduct a merits review, and the question is simply whether or not the decision was within a range of reasonable decisions.

However it seems to me that the decision can be categorised as either vindictive, in which case it really falls under ground 1, or irrational, in that if – contrary to my primary conclusion – it was motivated by the desire to protect the CAMG’s assessment of the defendant’s own financial interests, there were demonstrably no grounds for considering that it would achieve that purpose. In short, there was no rational connection between the decision and the objective. For the reasons I have already given, I do not consider that the decision was taken with the intention of achieving the objective of dissuading tripping claims against the defendant brought by the claimant, as opposed to achieving the objective of punishing the claimant. But if I am wrong about that then it is obvious, as I have stated, that in fact there was no rational basis for considering that forcing the claimant to relocate elsewhere would in fact have any impact upon the number of tripping claims brought against the defendant brought by the claimant. Thus it was obviously irrational to take that decision with a view to achieving that objective.

The alternative challenge under this heading is that the decision was based on vague or absent criteria. The claimant’s submission is that on the evidence the defendant has introduced a policy targeting personal injury law firms such as the claimant, whereas in fact there is no sufficiently clear criteria as to the basis on which any individual firm might fall within or without this category. I reject this ground of challenge on the basis that, as I have said, I am not satisfied that the defendant has introduced any policy as such. All that Mr Legg said was that the defendant’s view was that the claimant’s practice and that of other similar personal injury lawyers was contrary to the defendant’s interests. Simply referring to other similar personal injury lawyers, without any other evidence to the effect that the defendant has in fact targeted or intends to target other firms falling within that category, whatever it is, cannot elevate a one-off decision to a policy.

Although the claimant has referred to a number of authorities in relation to procedural fairness, I am satisfied that there is only one respect in which it can be said here that the claimant was entitled to be afforded the right to make representations before the decision was taken and/or implemented.

In short, the position here, as it was in R v London Borough of Camden, ex p Hughes, is that the defendant, by adopting and promulgating a tenant selection policy, was not entitled to make its decision by reference to criteria not contained in that policy without affording the claimant the opportunity to make representations. That was particularly important in this case since if the CAMG intended to make a proper decision it would have needed to make a decision by reference to the tenant selection policy, having regard to an assessment of the nature of the claimant’s business and the extent to which it promoted or harmed wider community interests and those of the defendant itself, including the financial interests of the wider community and its own financial interests. In such circumstances, it is apparent that it would not have been fair to conclude that the claimant had been involved in claims farming without first, as I have already said, giving the claimant the opportunity to make representations on the point. Indeed, as Mr Auburn has pointed out, claims farming is itself an imprecise term which could cover a range of activities from firms which, perfectly properly, actively promote their services to genuine claimants wishing to make genuine claims, to firms which buy in and knowingly pursue false and exaggerated claims. If the defendant was going to make a decision on the basis that the claimant should be equated with the latter activity, then it was even more important to allow the claimant the opportunity to make representations.

By failing to do so, the defendant in my judgment failed to act in a procedurally fair manner.

I have considered whether or not it could be said that by accepting the claimant’s request for a review of its decision and by confirming its decision in its letter from the council leader dated 9 July 2013 the defendant remedied any earlier procedural error. However, since that letter itself suffered from the same flaws as the earlier decision, I am satisfied that it can not. This is not a case where it can be said that regardless of whatever the claimant had said the defendant would still have come, and have been entitled to come, to the same decision.

I am therefore satisfied that the decision should be quashed on this ground as well.

As I have said, the claimant needs permission to amend to raise this claim.

The claimant’s difficulty is that there was no hint of a complaint about any breach of this specific statutory duty in any of the pre-action correspondence, nor in the grounds. It is apparent that it was added as an afterthought, and after Judge Raynor QC had already made his order for a rolled-up hearing.

The claimant however submits that there is no prejudice to the defendant in allowing this ground to be raised and argued because, according to the claimant, this is an overwhelmingly strong case which the defendant has no prospect of defending.

However as against that Mr Fullwood leading for the defendant submits that it is prejudiced because there are arguments which the defendant would have wished to advance, and evidence which it would have wished to put in. In short, the defendant’s case is that this would be a far from straightforward claim. There is no suggestion that the claimant herself or anyone in her firm has any protected characteristic. There is no evidence that the defendant ought reasonably to have considered that a consequence of the decision might be adversely to impact on any clients of the claimant who have protected characteristics, whether in the context of their being unable to access alternative premises if the claimant is unable to find suitable alternative accommodation, or in the context of their being dropped by the claimant insofar as they either wished to sue the defendant or insofar as there was a risk of the claimant closing her business as a result of the decision. Mr Fullwood contends that insofar as these risks are material the proper time for consideration could only have been at the very earliest when the defendant was alerted to them by the claimant, after the institution of these proceedings.

In my judgment the defendant’s arguments are not fanciful, and I can well understand that the defendant would be entitled to and would wish to adduce evidence and make submissions on this point. In that respect I note that in the case of Dudley MBC v Secretary of State for Communities & Local Government [2012] EWHC 1729 (Admin) Singh J, addressing a public sector equality duty argument, held that the defendant in that case was not required to have regard to the matters in s.149 because: (a) the suggested impact was contingent and indirect; (b) the defendant was entitled to take the view that any detrimental consequences were for the future, and subject to too many vicissitudes, for the duty to arise now.

In the circumstances, the defendant not having had a full opportunity to deploy a proper response to this ground, I take the view that on the grounds of prejudice alone the application to amend should not be allowed.

The claimant’s case is that the decision made in this case was the result of the application of a secret policy to blacklist the claimant and others like her. I reject this argument on the simple ground that in my judgment there was no such policy, secret or otherwise.

I grant permission for, and the claimant succeeds, on grounds 1, 2 and 3 as identified above. I do not allow the claimant to raise ground 4 and refuse permission on ground 5. My provisional view is that the appropriate relief in such circumstances is simply to quash the defendant’s decision not to accept any application by the claimant for a new tenancy of a unit at the Enterprise Centre, but I will hear argument as necessary once this judgment is handed down on that and any other matters arising which cannot be resolved by agreement.

I thank all four counsel instructed for their careful, detailed and helpful submissions.