Page, R. (on the application of) v Darlington Borough Council

The headline of my judgment is this: I am not going to rule this case out on the ground it was not brought promptly in breach of CPR.54.5. It was brought within the default period of three months albeit only by one day. I do not rule however on the separate issue whether there has been undue delay for the purposes of Section 31(6) of the Senior Courts Act which it will still be open to the defendant to pursue at trial. It will be clear why in a moment.

I refuse permission on the following grounds.

I refuse permission on ground 4. I need say no more given the reply to this ground in the summary grounds of defence. It has no prospect of success. To be fair to Mr Bowen, he did not push it with any confidence.

I refuse permission on the localism ground. It has no realistic prospect of success. It relates to a proposal set out at 12a of the bundle, volume 2. It was a proposal made, on the face of the pleadings and the pre-action correspondence, by an entity called Darlington for Culture. It may well be looking at the evidence before me that it was in fact a proposal made by the community’s library steering group on behalf of Darlington for Culture. However without doubt that was not made clear in any of the papers before the witness evidence in this case was filed, or before Mr Bowen without any application to amend his grounds , stood to his feet to make his submissions.

The complaint under the Localism Act is that the Local Authority were in breach of their duty under section 81 under which it must consider an expression of interest in accordance with the material chapter if one is submitted to the authority by a relevant body. Under subsection 4 of section 81, an expression of interest in relation to a relevant authority, means an expression of interest in providing or assisting in providing a relevant service on behalf of the authority. If such an expression of interest is made and is accepted by the Council, then the obligation on the Council is to carry out a procurement exercise which is in effect a tendering exercise in relation to the provision on behalf of the authority of the relevant service to which the expression of interest relates.

The proposal put forward by Darlington for Culture or the steering group, was not in my judgment arguably an expression of interest within subsection 4, section 81. Patently it was simply a proposal to run the Crown Street building. It was not a proposal to provide or assist in running the library service. I do not accept as arguable that running the building in which the library service is potentially to be provided, is assisting in providing that service. I take comfort in reaching this conclusion, from the fact that I do not understand what procurement exercise would have been undertaken by Darlington County Council if it had accepted the proposal as an expression of interest.

Accordingly the argument in relation to the localism ground does not in my judgment get off the ground. But in so far as it ever did get off the ground as involving a proposal potentially amounting to an expression of interest within the statutory provisions, the further argument that the Local Authority failed to assist the group and direct the group towards the material statutory provisions governing an expression of interest, does not get off the ground either.

In this context, I have had regard to a letter sent to Darlington for Culture Limited (understandably to Darlington for Culture (DFC) rather than the steering group for the reasons I have already stated) dated 28 September 2016 and the reply from the DFC. That letter invited the DFC to consider putting in its business case as an expression of interest even though it had not been viewed as one by the Council. DFC and in my judgment, by inference, the steering group who were clearly linked, did not take any steps so to do but put in a reply in which DFC clearly did not adopt the suggestion. Not only that, the letter of 28 September gave information, as to a website page of the Local Authority at Darlington.uk .This has been produced to me It gives clear guidance as to how an expression of interest is to be made.

I will give permission but solely on the consultation grounds. They are arguable but any such argument of course must still take account of the fact that the Localism Act point will not assist. One of the points made is that the Local Authority failed in the consultation exercise to do two things; first to refer to the alternative proposals put forward by the DFC or the steering group and/or secondly to assist the steering group in the development of their proposals . The complaint is made that these proposals were arbitrarily dismissed by the Council on grounds of insufficient detail when the Council itself had asked only for outline proposals, and had apparently on the face of one particular letter, (see letter at 328 of the bundle from the Chief Executive) indicated that for the Council the outline could well be sufficient but you must ‘give the Council [inaudible] chance of delivery’. This is not a localism point; this is the consultation point.

I say only that these arguments are arguable. Mr Clayton has vehemently and strenuously argued that there is no sufficiently pleaded case on consultation and alleged breach of the applicable principles, sufficient that is for permission to be granted. I was very tempted by his submissions but having looked at the pleaded case I am satisfied there is just about enough.

This grant of permission, however, is conditional on the following: the claimant must within seven days produce amended grounds in relation to consultation which incorporate both as facts and grounds, that which was expressed to me orally today but which at the moment does not appear in the Facts and Grounds currently lodged by the claimant. Mr Bowen will know of what I speak. At any substantive hearing the claimant will be bound by that final amended set of grounds. Although I am unlikely to be the judge, it would not in my view be appropriate for counsel on his feet to seek to set out a different case from that which is pleaded. I have in regard for example under paragraph 59, ground 8 where Mr Bowen wanted to add to sub-paragraph 8, ‘the Council acted unfairly in failing to provide an opportunity to this steering group to respond to the concerns adopted by the Council in the PWC accountant’s report’. I give that just as an example. Moreover, if amendments are required to make clear that the material body who made the proposals was the steering group and not the DFC, all this must be made out in any amendments. I will order that the amended grounds identify each and every alleged breach of fairness or other applicable principles identified under the heading of consultation.