Joanna Trafford v Blackpool Borough Council
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Stephen Davies |
| Judgment Date | 24 January 2014 |
| Neutral Citation | [2014] EWHC 85 (Admin) |
| Docket Number | Case No: CO/12401/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 January 2014 |
[2014] EWHC 85 (Admin)
In The High Court Of Justice
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT AT MANCHESTER
HIS HONOUR JUDGE STEPHEN DAVIES
SITTING AS A JUDGE OF THE HIGH COURT
Manchester Civil Justice Centre,
1 Bridge Street West, Manchester M60 9DJ
Case No: CO/12401/2013
The Queen on the application of
Jonathan Auburn and Ian Skeate (instructed by North Solicitors, Blackpool) for the Claimant
Adam Fullwood and Paul Whatley (instructed by Blackpool Borough Council Legal Services, Blackpool) for the Defendant
Hearing date: 7 January 2014
Introduction
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
The Grounds and the Issues
As advanced before me, the grounds of challenge are as follows:
(1) Ground 1: Improper / unauthorised purpose;
(2) Ground 2: Wednesbury illegality;
(3) Ground 3: Procedural fairness;
(4) Ground 4: Public sector equality duty.
(This ground was not included in the claim form and is the subject of an opposed application for permission to amend to argue it.)
(5) Ground 5: Unpublished policy.
The facts
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:
"Tenants of the Enterprise Centre who have submitted several tripping claims against the Council on behalf of clients. Reported that the tenants are a firm of solicitors who have a three year contracted out lease from 15 th June 2010, and therefore due for renewal 14 th June 2013. They had an introductory 50% discounted rent for the first six months. This matter was discussed and it was agreed to terminate the lease as soon as possible. Accepted that this would put pressure on the Enterprise Centre budget. A report is going to CLT 1 on the pressures associated with the Enterprise Centre budget."
Mr Auburn leading for the claimant complained that the defendant had failed to disclose the report referred to in that minute....
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