Planning analysis: The court confirmed that statutory consultation of a National Policy Statement (NPS) (or any review thereof) must be carried out in accordance with the ‘Sedley principles’ that require the consultation to be carried out when the proposals are at a ‘formative stage’ and the need for ‘conscientious consideration’ of consultation responses. The court clarified that these principles were limited to matters which a reasonable reader would think was within the scope of the consultation rather than a subjective test as to what the Secretary of State (SoS)’s intention was in the consultation. Written by Brendon Lee, Partner at HCR Hewitsons.

Planning analysis: In considering whether a previously refused planning application dismissed on appeal which was subsequently re-submitted as two smaller planning applications on a sub-divided site within two years of the refusal could be determined as the same or substantially same as the previous application, Judge Jarman KC confirmed that the applications could not be considered together. Each smaller planning application should be considered separately under under section 70A of the Town and Country Planning Act 1990 (TCPA 1990) on its own merits. He also emphasised that the test was not whether the applications are hopeless but rather whether they are the same or substantially the same. He went on to conclude as to the facts in the case that an application for outline permission for nine dwellings on approximately half of the area of the previous application site cannot sensibly be regarded as substantially the same as an application for outline permission for 15 dwellings over the whole of such site. Written by Brendon Lee, legal director at HCR Hewitsons.

Dispute Resolution analysis: The Technology and Construction Court reaffirmed the strict requirements governing service of claim forms by email and the limited scope for retrospective validation under CPR 6.15. The court held that neither correspondence between solicitors nor email footers indicating a willingness to accept electronic service constituted clear notice of authority to accept service under CPR Part 6. Retrospective validation was refused because the claimant had failed to take reasonable steps to effect proper service and had left service until the last moment. The decision underscores the importance of strict compliance with service rules, particularly where limitation defences may be lost. Produced in partnership with Georgia Whiting, barrister of Capita plc.

Construction analysis: This case arose from an application for summary judgment to enforce an adjudication decision which awarded liquidated damages to the assignee of the Employer’s benefit under an amended Joint Contracts Tribunal (JCT) Minor Works Contract 2016. The contractor challenged enforcement on the basis that (i) the assignee did not have any right to refer a dispute to adjudication and/or (ii) the dispute referred did not arise under the contract. The Technology and Construction Court provided helpful clarification that, on a proper interpretation of the adjudication provisions of the JCT contract and Part I of the Scheme for Construction Contracts, the assignee did indeed have the right to refer a dispute to adjudication, and the dispute referred was one which arose under the contract. Written by Mathias Cheung, barrister at Atkin Chambers and counsel for the successful claimant.

Competition analysis: In this judgment, the High Court issued its first ever ruling on a challenge to an unwinding order imposed by the UK government under the National Security and Investment Act 2021 (NSIA 2021). In a clear victory for the government, the court confirmed the broad discretion of the Secretary of State to determine the appropriate remedy for resolving national security concerns arising from a problematic transaction, up to and including forced divestment of the acquirer’s shareholding in a qualifying entity, as well confirming that the overall process followed by the Government in such cases is fair and proportionate. The judgment is also notable for the insights that it provides into the process followed by Government officials and ministers for in-depth reviews under the NSIA 2021, with the level of detail going well beyond what has been disclosed in the Government’s own guidance to date. Written by Becket McGrath, partner at Euclid Law Ltd.

Local Government analysis: The High Court dismissed the local authority’s application to deprive a 17-year-old child’s liberty for a further six months to compel their choice of accommodation. The court affirmed that ‘section 20 accommodation is not intended to be used coercively’ and determined the local authority had sought ‘to take a young person into care when the statutory scheme does not permit them to do so’. This case provides a comprehensive analysis of the legal principles and relevant case law concerning sections 20 and 100 of the Children Act 1989 (ChA 1989), re-affirms the importance of obtaining valid and informed parental consent with reference to section 20 accommodation, and provides a working analysis of the ‘best interests’ decision regarding depriving a child of their liberty. Written by Nicola Wheater, associate at HCR Law.

Restructuring & Insolvency analysis: This case involved a successful appeal by a creditor, Mr Bhundia against decisions made by a chair of a creditor's meeting (a company’s sole director, Mr Dhar) that was convened to appoint a liquidator. The court, applying a balance of probabilities test for indebtedness, agreed that Mr Dhar should have admitted Mr Bhundia’s vote for a higher value than he did, and should have rejected his own vote. It held that the incorrect admission of claims and rejection of part of Mr Bhundia’s claim constituted a material irregularity, confirming that Mr Bhundia should have controlled the voting outcome. Of particular interest is the court's comments on how adjudication awards (which formed part of Mr Bhundia’s claim) should be treated and whether the doctrines of ‘res judicata’ (the rule that the same issue should not be brought before the court more than once) and ‘merger’ ( a doctrine that prevents a party from seeking any further relief on a cause of action once a judgment has been given on it) were relevant in this context. On finding material irregularity, the court asked for further submissions on handing down the judgment as to what it should do next in terms of ordering a repeat decision procedure or some other order. Written by Hannah Drozdz, legal director PSL at Gateley.

Local Government analysis: The High Court dismissed the local authority’s application for a care order and discharged the Deprivation of Liberty Safeguards (‘DoLs’) authorisation previously imposed in connection with a fifteen-year-old child on the basis that those holding parental responsibility (‘PR’) for the child had freely consented to the child’s deprivation of liberty as it was in his best interests to reside in a residential placement. The Court determined that it had no place in ‘further scrutiny[ising] or author[ising] the present arrangements’ as acting within the child’s best interests fell squarely within the ‘zone of parental responsibility’. This case provides a comprehensive analysis of the legal principles and relevant case law concerning the protective nature of Article 5 ECHR, the interplay between Article 5 and PR, the requirements for a care order, and a helpful reminder of the Cheshire West criterion. Written by Nicola Wheater, associate at HCR Law.

Planning analysis: In Di Mambro v East Devon DC, the High Court held that quashing a local planning authority’s (LPA’s) timely grant of prior approval under the Town and Country Planning (General Permitted Development) (England) Order 2015 (the GPDO) did not retrospectively engage the 56-day deemed consent rule in GPDO, Sch 2, Pt 3, para W(11)(c). The remittal order instead re-engaged the prior approval procedure and required redetermination of the application as to whether prior approval was required.

Dispute resolution analysis: The High Court on 24 July 2023 handed down judgment confirming its earlier decision to refuse climate-change activist ClientEarth’s application for permission to continue a derivative action on behalf of Shell plc seeking to challenge its directors’ response to the risks posed to Shell’s business by climate change. Rupert Lewis, head of banking litigation, Neil Blake, partner, James Palmer, partner, Silke Goldberg, partner, Rebecca Perlman, partner, Maura McIntosh, professional support consultant and Ceri Morgan, professional support consultant, Herbert Smith Freehills explore the decision.

Corporate analysis: In Re Vernalis plc, the High Court considered whether it should approve a scheme of arrangement where there had been very low shareholder turnout at the court meeting. The court also considered whether the failure to make adequate provision for the treatment of any scheme consideration that was unclaimed by shareholders invalidated the scheme.

Dispute Resolution analysis: Where an application for judicial review relates to a decision made by the Secretary of State or a local planning authority under the planning acts, the claim form must be filed not later than six weeks after the grounds to make the claim first arose. However, this rule is not absolute for a judicial review claim and the court has powers under Civil Procedure Rule (CPR) 3.1(2)(a) to extend the time limit. In contrast, the relevant legislation for statutory reviews do not permit the period to be extended at all. Where the time limit has already expired for a planning judicial review, the claimant must apply for an extension of time in the claim form. The application will then be considered by the judge at the same time as deciding whether to grant permission to apply for judicial review. In giving judgment Robert Palmer KC, sitting as Deputy Judge of the High Court, confirmed that the court in determining whether to grant an extension of time will apply the principles set out in R (Thornton Hill Hotel) v Thornton Holdings Ltd. In particular, the judge emphasised the importance of the claimant to proceed with the ‘greatest possible celerity' because a landowner is entitled to rely on the validity of a planning permission granted by a local planning authority exercising its statutory functions in the public interest. Accordingly, where third parties have had a fair opportunity to become aware of, and object to, a proposed development they are expected to move swiftly to challenge its lawfulness before the court. He also noted that when faced with an application to extend time for the bringing of a claim, the court will seek to strike a fair balance between the interests of the developer and the public interest. This includes the extent of hardship or prejudice likely to be suffered by the landowner or developer if relief is granted, compared with the hardship or prejudice to the claimant if relief is refused, and the extent of detriment to good administration if relief is granted, compared with the detriment to good administration resulting from letting a public wrong go unremedied if relief is refused. Written by Brendon Lee, partner at HCR Hewitsons.