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Contracts
- R v Panel on Take-overs and Mergers, ex p Datafin plc [1987] QB 815: The Court of Appeal allowed an application for judicial review (which ultimately failed) against the Panel on Take-overs and Mergers, a non-governmental body overseeing the conduct of company take-overs in the City of London. The Court of Appeal refused to tie susceptibility to judicial review exclusively to the source of a body’s power in statute or the prerogative. Instead the court focused on the need for a ‘public element’ (838). This element was found on the facts since the Panel’s source of power was not simply consensual submission to its jurisdiction; it was in fact operating as part of the government framework, it was supported by a periphery of statutory powers and penalties, and it provided no possibility of private law redress.
- R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 1 WLR 909: The Court of Appeal found there was no jurisdiction to give judicial review of the decisions of the Disciplinary Committee of the Jockey Club, because the powers and duties of the Club were not governmental and there were adequate remedies for any abuse of power in an action for breach of contract.
- Mullins v Appeal Board of the Jockey Club (Mullins v McFarlane) [2006] EWHC 986: The Queen’s Bench Division of the High Court considered a claim for a declaration of unlawfulness (outside judicial review) regarding the disqualification by the Appeal Board of the Jockey Club of a horse from a race for failing a drugs test. Burnton J accepted that the High Court could interfere with a decision of a domestic disciplinary tribunal of a private organization that is the governing body of a sport if it is arbitrary, capricious or based on a misinterpretation of the applicable rules. This ability to grant a declaration is not restricted to cases of restraint of trade or those where the tribunal has acted unfairly (Bradley v The Jockey Club [2004] EWHC 2164, commended at [2005] EWCA Civ 1056).
- Aston Cantlow v Wallbank [2003] UKHL 37: The House of Lord considered the meaning of ‘public authority’ in s 6 Human Rights Act 1998. The court distinguished ‘core public authorities’ (governmental organisations all of whose functions were public) and ‘hybrid public authorities’ (with some public and some private functions). A series of factors is to be considered when determining whether a function is public. In this case, the House of Lords decided the Church of England was not a ‘core’ but a ‘hybrid’ public authority, and that the function under consideration (taking steps to enforce repair liabilities of the defendant) was private in nature.
- R v Servite Houses, ex p Goldsmith [2001] LGR 55: Wandsworth arranged for two elderly women to be housed by a housing association; the association assured the women that they could stay there for life as long as their health allowed it; three years later it decided that the home was uneconomical and decided to close it. The court held that judicial review was not available against the private housing provider, because its relationship with Wandsworth was commercial (80).
- Poplar Housing v Donoghue [2001] EWCA Civ 595: the defendant had been housed by a local authority, Tower Hamlets, which decided that she was ‘intentionally homeless’ because she had left her flat to live with her sister. Tower Hamlets sought an order to evict her from a flat; it then discovered that her home belonged to Poplar, a housing association that the local authority had set up and to which it had transferred much of its housing stock. Poplar sought an order to evict the defendant, and her defence was that Poplar was a functional public authority, and that it was a breach of her Article 8 rights for Poplar to seek to evict her. The Court of Appeal held that Poplar was a functional public authority because of its close relation with Tower Hamlets, which meant that its relation with the tenant was ‘enmeshed’ in the local authority’s discharge of its own public function (but there was no breach of Article 8, because the interests of other homeless people justified the system for obtaining possession of a flat rented to a particular person).
- R (Heather) v Leonard Cheshire Foundation [2002] EWCA Civ 366: the claimants were elderly residents of a nursing home who challenged the foundation’s decision to close it after they had been there more than seventeen years. The Court of Appeal held that the foundation was not a functional public authority under Human Rights Act s 6, because its contract to provide housing to residents funded by the council did not involve any public functions. It was ‘not standing in the shoes of the local authorities’ [35]. Lord Woolf commented that in their contracts with private housing providers, local authorities ought to require the providers to respect the residents’ Convention rights.
- YL v Birmingham [2007] UKHL 27: Landmark decision on whether, when a public authority provides public services by contracting with a private service provider, a claimant can assert European Convention rights against the private company. A private nursing home, Southern Cross, provided accommodation and care to Mrs YL under arrangements made with Birmingham City Council; the Council had a statutory duty to provide those services to her. The home threatened to evict her because of the conduct of her daughter and husband during visits, and she wanted to assert her right to respect for her family life under Art 8 of the European Convention. The Law Lords decided that Southern Cross was not performing ‘functions of a public nature’ for the purposes of section 6(3)(b) of the Human Rights Act 1998, so that it was not a ‘public authority’ obliged to act compatibly with Convention rights under section 6(1). They held that providing care and accommodation was not inherently a public function, and that in housing Mrs YL, Southern Cross was acting profit-making company, rather than carrying out functions of a public nature. Mrs YL could assert her Convention rights against Birmingham, but not against Southern Cross.
- Lord Bingham and Baroness Hale dissented vigorously.
- Nagle v Feilden [1966] 2 QB 633: The Jockey Club refused trainer's licences to women; a woman sought a declaration that the practice was was against public policy and an injunction prohibiting it. The Jockey Club obtained a an order striking out her claim as disclosing no cause of action, but Lord Denning MR overturned the decision, holding that it was arguable that at common law there is a right to work at a trade without being arbitrarily excluded by anyone (whether or not a public body) having control over the admission to the trade.
- Crédit Suisse v Allerdale BC [1997] QB 306: The Council had statutory power to provide recreational facilities. They tried to finance a leisure centre by creating time share accommodation and established a company to carry out the plan, giving a guarantee to Crédit Suisse to help finance the company. It all went wrong, the company went into liquidation, and Crédit Suisse claimed on the guarantee. The Court of Appeal held that the guarantee was ultra vires; the Council’s statutory power to develop recreation facilities did not affect statutory restrictions on its power to borrow.