R (Asha Foundation) v Millennium Commission
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,LADY JUSTICE HALE,LORD JUSTICE LATHAM |
| Judgment Date | 16 January 2003 |
| Neutral Citation | [2003] EWCA Civ 88 |
| Docket Number | C1/2002/1124 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 January 2003 |
[2003] EWCA Civ 88
The Lord Chief Justice of England and Wales (The Lord Woolf of Barnes)
Lady Justice Hale and
Lord Justice Latham
C1/2002/1124
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
(MR JUSTICE LIGHTMAN)
QUEEN'S BENCH DIVISION
MR RICHARD GORDON QC and MR MICHAEL FORDHAM (instructed by Sheridans, London WC1R 4QL) appeared on behalf of THE APPELLANT
MR PHILIP HAVERS QC and MISS NATHALIE LIEVEN (instructed by the Treasury Solicitor) appeared on behalf THE RESPONDENT
Thursday 16 January 2003
This is an appeal by the Asha Foundation against the decision of Lightman J dated 14 May 2002. Lightman J dismissed Asha's application for judicial review of a decision of the Millennium Commission to refuse an application for capital grant by Asha amounting £10 million. The primary (though not the sole) issue raised on the appeal is the extent of the Commission's obligation in the circumstances of this case to give reason for its decision to refuse that application.
The Factual Background
Asha is a charity whose object is the establishment of a museum to be called the Asha Centre. The charity intended that the museum should celebrate Britain's multi-culturalism and would teach the history of immigration into this country, how Britain became a multi—cultural society, and the beliefs of Britain's many faiths. It is supported by the various different faiths which are represented in society today. Looking at the project as a whole, it is clearly attractive and one which would be culturally beneficial. At one time, notwithstanding the decision which they were ultimately to reach, the Commission was very supportive of the project.
The Commission is a body corporate established under section 40 of the National Lottery Act 1993. Under section 41 of the Act, the Commission is empowered to make grants to funds or to assist projects that the Commission considers appropriate to mark the beginning of the third millennium.
At the relevant time the Commission had a distinguished membership. The Secretary of State had power to give directions to the Commission. On 20 June 1994 he did so, specifying matters which the Commission was required to take into account in awarding grants.
Furthermore, upon inviting applications for the fifth round of capital grants which were to be made in 1999, the Commission distributed an application pack detailing criteria and guidelines which the Commission would apply in allocating grants. Those criteria, together with the direction by the Secretary of State set out the framework within which the Commission was required to consider the different applications.
However, the criteria are very broad. They give the Commission a wide discretion when considering the application. There were two categories of criteria. First, there are those which have to be fulfilled to establish the eligibility of the application. Then there are the criteria that apply once an applicant has met the eligibility criteria. The Commission has also to evaluate the application against the other competing applications that it was considering. Certain of the criteria (contained in document Annex C) set out how the Commission proposed to assess the projects. They mentioned:
"[A]The degree to which the application will benefit the public good.
[B]Whether the application is mainly for capital expenditure, within the threshold levels indicted.
[C]The extent of partnership contributions to the project.
[D]The long-term viability of the project and the ability of the applicant to secure the long-term running costs of the project."
The information contained in the pack adequately informed applicants of how the decision-making process was to take place.
The Commission held successive competitions for grants. Asha had initially applied to the Commission for a capital grant in the third round. This was favourably received. In December 1998 Asha was awarded a conditional grant of £10 million, and an interim grant of £0.5 million as seed cord funding. However, subsequently the Commission decided that Asha had failed to satisfy the conditions for a conditional grant. This was because the Commission were concerned that the project would not be delivered due to insufficient co-funding and in addition referred to a lack of both viability and public support. The Commission decided to determine the conditional grant and demanded repayment of the funds already paid to Asha.
Understandably Asha was disappointed at that decision of the Commission. But the ability and the propriety of the Commission to come to that conclusion is not challenged in these proceedings. However, the Commission informed Asha that there was to be a fifth round of grants which was intended to support capital projects reflecting the achievements and aspirations of the ethnic minority communities of the United Kingdom, and that if Asha applied its application would be considered alongside other applications received. Asha was encouraged by that information from the Commission because their museum project appeared to them to fall within the purpose enunciated by the Commission. Accordingly Asha applied for a grant of £10 million in the fifth round.
We are told by Mr Gordon QC, who appears on behalf of Asha in this court, that the costs of preparing the application for the fifth round were substantial. However, there was intense competition for grants on the fifth round. There were twelve applicants. There was no possibility of all the applications being met, if the Commission were to keep to their budget of £19 million for the fifth round. This was obvious if Asha were to be granted their application for £10 million. There was no substantial additional amount available for the fifth round and if Asha was successful it was going to get the lion's share of the money which was available.
The Commission came to the conclusion that Asha's application met the eligibility grounds. The application therefore had to be considered on its merits in accordance with the criteria and in competition with the other applicants which were eligible.
The Commission informed Asha of its decision by letter dated 28 June 2001. The letter stated:
"I regret to advise you that after careful consideration the Commission did not choose to provide a grant for the Asha Centre project. In the light of the competition, the Commissioners decided that your application was less attractive than others before them. Your application for Round 5 funding has therefore been rejected.
….
I know that the Commissioners' decision will come as a disappointment to you. Should you wish to discuss this letter please contact me at the Millennium Commission."
Asha sought clarification of the reasons behind the Commission's decision. The Treasury Solicitor, acting on behalf of the Commission, wrote a letter dated 27 July 2001. The letter recorded the fact that the Commission had found that Asha was eligible for a grant. However, the fifth round was substantially oversubscribed by applications that were, in terms of the appraisal criteria applied by the Commission, also eligible for grants. The letter also stated that the Commission was made aware that there were significant risks in taking the Asha project forward. The letter stated that the Commission had assessed Asha's application, as required by section 41 and had formed its view as to the comparative merits of each eligible project, taking into account the Commission's key criteria and having regard to the geographical and culture equity of grant distribution. The letter concluded that, against these considerations, the Commission preferred other applications before it to the Asha application.
From Asha's point of view the information which was provided as to the basis of the Commission's decision was limited. It was, first, that their application met the eligibility criteria; and secondly, that the other applicants who were successful were preferred to its application. There was also the reference (the significance of which was not clear) to the risk element in regard to the Asha application.
Asha's Contentions
Asha's reaction to the information with which they were provided was that they had been given no adequate reasons for the decision. They submit that there was an obligation upon the Commission to give meaningful reasons that would help them to know precisely why their application was not one of the preferred applications. It is said that that obligation arises partly as a matter of general law which requires administrative bodies such as the Commission to give reasons for their decisions in appropriate circumstances; and secondly, because in this case there had been a promise to give reasons which created, so far as Asha were concerned, a legitimate expectation that they would receive adequate reasons.
In the application pack under the heading "What happens next?" paragraph 1 refers to the appraisal. It reads:
"Applications received are subject to a detailed appraisal before the Commission makes a decision."
Under "Offer of grant" it says:
"When the Commission's detailed examination of your 2nd stage application is completed, we will decide whether to make you an offer of grant. If your application is rejected, the Commission will write to you explaining why. Once grant has been offered to projects, a further grant contract will be negotiated. No payment will be against the full project until a grant is signed and any...
To continue reading
Request your trial
-
The Law Association of Trinidad and Tobago v Dr. Keith Rowley the Prime Minister of the Republic of Trinidad and Tobago
...failure to provide an adequately reasoned decision.” See also R (on the application of the Asha Foundation) v Millennium Commission [2003] EWCA Civ 88. 217 Where there is no express provision as to the timing of the reasons there is however, having regard to the public importance of the su......
-
The Queen (on the Application of Christopher Willford) v Financial Services Authority
...reference to the nature of the decision and the issues that have to be decided. (See also the dictum of Lord Woolf C.J. in R (Asha Foundation) v Millennium Commission [2003] EWCA Civ 88 at paragraph 27). It may also be affected by the part which reasons play in the legislative scheme. In pl......
-
Re M (A Child) (Fact-Finding Hearing: Burden of Proof)
...is high time that the Family Bar woke up to this case, and to the fact that it applies to family cases: —see (inter alia) Re B a child) [2003] EWCA Civ 88, where Thorpe LJ cited from the judgment of Arden LJ in Re T (Contact: Alienation: Permission to Appeal) [2002] EWCA Civ 1736, [2003] 1 ......
-
London Borough of Hackney v Haque
...how compliance with a statutory duty may be demonstrated. As Lord Woolf said in Crown R (Asha Foundation) v The Millennium Commission [2003] EWCA Civ 88 at paragraph 27: "Where the obligation to give reasons exists, this does not require a single standard of reasons to be given. The standar......