Construction industry disputes

July 26th, 2013 by James Goudie QC

The balance of public interest was “very strongly” in favour of maintaining the confidentiality of documents in order to “protect the course of justice” both in Jackson v Info Commissioner, EA 2012/0263, FTT Decision on 19 July 2013, and in “many other such disputes” said Judge Hughes.  The value of the disclosure of the material was limited.  The adverse impact of disclosure on dispute resolution was substantial.  Judge Hughes concluded: “If there were to be change in the arrangements underpinning construction dispute resolution then this should be explored through a careful process of public debate and consultation leading to an amendment of the statutory framework.”

Cambridgeshire County Council (“the Council”) had entered into a major construction contract with BAM Nuttall for the construction of a guided busway extending 16 miles from Huntingdon to Trumpington.  There have been disputes between the parties to the contract over delays and cost-overruns which have attracted public concern.  In July 2011 the Council launched proceedings in the Technology and Construction Court (“the TCC”) against BAM Nuttall.  The proceedings continue.

Dr Jackson submitted an information request to the Council.  The Council responded.  Further, the Council advised that an application to the TCC had been made.  The Council resisted the request relying on Regulations 12(5)(b) and (f) and 13(1) of the Environmental Information Regulations.

Dr Jackson complained to the Information Commissioner.  The Commissioner upheld the Council’s position, relying on Regulation 12(5), adverse effect on the course of justice.

The FTT was satisfied that this exemption was engaged.  There was a substantial dispute between the Council and BAM Nuttall which was before the Court.  It had been preceded by adjudications held within a scheme which provided for confidentiality and where the statutory framework underpinning the scheme recognised the value of confidentiality.  The ability of parties to communicate on a without prejudice basis underlined the point that parties do deal in a candid way within the adjudication process.  The FTT was satisfied on the evidence that in this specific case there would be an adverse effect on the current litigation if there was disclosure.

Moreover, there was a further more general adverse effect that a decision would call into question the effectiveness of the ADR arrangements for construction disputes, which very often involve a public sector purchaser.  The lack of confidentiality of the ADR stages of such disputes would make the resolution harder to achieve and impact adversely on subsequent litigation, and so on the course of justice.


New FoIA Exemption

May 14th, 2013 by James Goudie QC

Following the Queen’s Speech, an Intellectual Property Bill has been introduced in the House of Lords.  Clause 19 inserts a new exemption into the FoIA (Section 22A).  The exemption is for continuing programmes of research intended for future publication.  Subsection 1(a) of Clause 19 provides that information is exempt from a Section 1(1)(b) FoIA disclosure requirement if it relates to information obtained in the course of, or derived from, a programme of continuing research that is intended for future publication.  Subsection (1)(b) of the new Clause, however, provides that the information will be exempt only if disclosure would, or would be likely to, prejudice a matter listed in that subsection.  The exemption will not be an absolute exemption. It will be subject to the public interest balance test.  Public authorities will not be required to confirm or deny that they hold Section 22A information if, or to the extent that, compliance would, or would be likely to prejudice, any of the matters mentioned in subsection (1)(b).  The Government does not consider that the new exemption raises any issues of compatibility under ECHR Article 10.


Electoral registration

February 11th, 2013 by James Goudie QC

The first Commencement Order has been made under the Electoral Registration and Administration Act 2013.  The Order brings into force provisions enabling Regulations to be made about the disclosure of information for the purposes of electoral registration.  The provisions are in Section 2 of and Schedule 2 to the Act (Sharing and Checking Information), amending Schedule 2 to the Representation of the People Act 1983.  The Regulations are to enable a system to be established for the verification of the eligibility of applicants and registered electors in Great Britain, and verification that applicants are the persons they claim to be.  The Regulations may authorise or require Registration Officers to require an applicant or a registered elector to provide evidence of eligibility and that an applicant is the person named in the application.


Norwich Pharmacal Relief

November 28th, 2012 by James Goudie QC

If through no fault of his own a person gets  mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers.  Justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.  This is the principle recognized by the House of Lords in Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133.

This principle has been considered by the Supreme Court in Rugby Football Union v Consolidated Information Services Ltd (formerly Viagogo Ltd) [2012] UKSC 55.  This case arose in the following way. 

The Rugby Football Union (RFU) is of course the governing body for Rugby Union in England. It owns Twickenham Stadium.  It is responsible for issuing tickets for matches played at the Stadium. It is the RFU’s policy to allocate tickets so as to develop the sport and enhance its popularity. Most tickets are distributed via affiliated rugby clubs and other bodies. The distribution thereafter is subject to different rules depending on the nature of the body in question. Member clubs are permitted to sell some or all of their ticket allocation to official licensed operators for use in corporate hospitality packages. The RFU’s terms and conditions stipulate that any resale of a ticket or any advertisement of a ticket for sale at above face value will constitute a breach of contract rendering the ticket null and void. This condition is printed on the tickets and applicants are warned of it on ticket application forms. A further term stipulates that the tickets are property of the RFU at all times.

Viagogo (now in liquidation) operated a website which provided the opportunity for visitors to the site to buy tickets online for a number of sporting and other events. Sellers would register their tickets with Viagogo and a price would be suggested based on current market data. Viagogo received a percentage of the sale. The RFU monitors ticket re-sale websites in an attempt to discover whether and by whom tickets were being sold above face value. This effort was frustrated, however, in many instances by the anonymity offered by websites including Viagogo.

In the run up to the international rugby matches in autumn 2010 and the Six Nations Tournament, the RFU discovered that Viagogo had been used to advertise thousands of tickets for the matches at Twickenham. Tickets with a face value of £20 to £55 were being advertised for sale at up to £1300. After a request for information about the identity of those selling the tickets was refused, the RFU issued proceedings against Viagogo seeking information which it required in order to take action to protect its policy in relation to tickets.

The High Court granted the RFU a Norwich Pharmacal order requiring Viagogo to disclose the identities of those involved in the sales. The order was made on the grounds that the RFU had a good arguable case that those selling and purchasing the tickets had been guilty of breach of contract and that it was appropriate to grant the order for them to obtain redress.

Before the Court of Appeal, Viagogo introduced a new ground of appeal to the effect that granting the order represented a disproportionate interference with the rights of the potential wrongdoers under Article 8 of the Charter of Fundamental Rights of the European Union. Article 8 guarantees the protection of personal data. The Court of Appeal [2011] EWCA Civ 1585 upheld the decision of the High Court and decided that the RFU had no readily alternative means of pursuing the wrongdoers. On the new ground the Court of Appeal held that interference with the personal data rights of the individuals was proportionate in light of the RFU’s legitimate objective in obtaining redress for arguable wrongs.

The issue before the Supreme Court was whether the grant of the order involved a breach of Article 8 of the Charter.  The Supreme Court unanimously dismissed the appeal.  

The Supreme Court observed that cases since Norwich Pharmacal itself have emphasized the need for flexibility and discretion in considering whether the remedy should be granted.  It is not necessary that an applicant intends to bring legal proceedings in respect of the arguable wrong.  Any form of redress (for example disciplinary action or the dismissal of an employee) will suffice to ground an application for the order.  The need to order disclosure will be found to exist only if it is a necessary and proportionate response in all the circumstances.  The test of necessity does not require the remedy to be one of last resort.  The essential purpose of the remedy is to do justice.  This involves the exercise of discretion by a careful and fair weighing of all relevant factors.

Various factors have been identified in the authorities as relevant.  These include: (i) the strength of the possible cause of action contemplated by the applicant for the order;  (ii) the strong public interest in allowing an applicant to vindicate his legal rights;  (iii) whether the making of the order will deter similar wrongdoing in the future;  (iv) whether the information could be obtained from another source;  (v) whether the respondent to the application knew or ought to have known that he was facilitating arguable wrongdoing; (vi) whether the order might reveal the names of innocent persons as well as wrongdoers, and if so whether such innocent persons will suffer any harm as a result;  (vii) the degree of confidentiality of the information sought; (viii) the privacy rights under Article 8 of the ECHR of the individuals whose identity is to be disclosed; (ix) the rights and freedoms under the EU data protection regime of the individuals whose identity is to be disclosed; and (x) the public interest in maintaining the confidentiality of journalistic sources, as recognized in s10 of the Contempt of Court Act 1981 and Article 10 of the ECHR.

As Lord Kerr stated (para 18), many of these factors are self-evidently relevant to the question of whether the issue of a Norwich Pharmacal order is proportionate in the context of Article 8 of the Charter of Fundamental Rights of the European Union.  Article 8 of the Charter was applicable as the order of the High Court involved disclosure of private data and thus was in the material scope of European Law.

The Supreme Court held that the appropriate test of proportionality under Article 8 of the Charter involved weighing the benefit of the information being sought by the RFU against the impact that disclosure was likely to have on the individual concerned. The appellant was wrong to suggest, however, that the assessment had to be carried out solely by reference to the particular benefit that obtaining information in relation to an individual might bring.  It was artificial and unrealistic to suggest that the RFU’s aim of discouraging others in the future from flouting its rules should not be considered.  The facts of each case must be considered individually, but there was nothing in the European cases cited or otherwise which supported the notion that the wider context for which the RFU wished to have the information should be left out of account.

While there should be an intense focus on the rights claimed by the individuals concerned, this was not a case where disclosure would result in oppressive or unfair treatment. The only information sought was the names and addresses of individuals who had bought and sold tickets in clear breach of the RFU’s ticket policy. The particular circumstances affecting a person whose data were sought may in some limited cases displace the interests of the applicant for disclosure even where there was no feasible alternative way of getting the information. This was not such a case, however.



August 1st, 2012 by James Goudie QC

The Electoral Registration Data Schemes Order 2012, SI 2012/1944 (“the Order”), made and coming into force on 17 July 2012, pursuant to Sections 35 and 36 of the Political Parties and Elections Act 2009 (“the 2009 Act”), gives effect to proposals for local Electoral Registration Officers (“EROs”) to run data matching pilot schemes.

It allows EROs in 17 areas in England, Wales and Scotland to use data sets kept by the  DWP to enable EROs to improve the accuracy and completeness of their electoral registers. It is intended that one way in which this will be done is by EROs comparing those registers against the data held by DWP to confirm existing electors who appear on those registers. Depending on the outcome of these pilot schemes, the Government intends that this process of data matching will be used by EROs throughout Great Britain to ease the transition to Individual Electoral Registration in 2014. The Order also sets the date by which the Electoral Commission must evaluate the pilot schemes.

Sections 30 to 34 of the 2009 Act make provision for the introduction of Individual Electoral Registration.

Section 35 provides for the Secretary of State  (“the SoS”) to make an order providing for schemes for the provision of information to EROs by other public authorities. The schemes are intended to support the wider work of ensuring and improving the completeness and accuracy of electoral registers as part of the overall transition to Individual Electoral Registration. The schemes will also build on and advance the work begun in 2011 to identify whether and how access to public authority data sets might assist EROs in meeting their duty under Sections 9 and 9A of the Representation of the People Act 1983, primarily by comparing electoral registers against other data sets.

Section 36 of the 2009 Act required the SoS to consult the Electoral Commission, the Information Commissioner and the public authorities holding the data sets before making the Order. It also requires the Electoral Commission to assess and report on the outcomes of the data matching pilot schemes.

The Government has made a commitment to introduce legislation, and has now introduced legislation, to speed up the implementation of Individual Electoral Registration. Current legislation allows Individual Electoral Registration to be brought into force on a voluntary basis in this Parliament and on a compulsory basis from late 2015 at the earliest.  The Government intends to amend this position so that electors will be asked to register individually from 2014 in order to modernise the electoral registration system and tackle fraud. Electors will be asked to provide identifying information which will be checked before they are added to the electoral register. The process will replace the existing system of household registration.

From June to November 2011 EROs ran 22 data matching schemes, enabled by the Electoral Registration Data Schemes Order 2011 (S.I. 2011/1466), to see if existing public authority databases could be used to improve the accuracy and completeness of the electoral register. The schemes were designed to identify individuals not on the electoral register who were entitled to be registered, as well as to show up false, duplicate and inaccurate registrations. EROs were able to review entries that appeared to be fraudulent or inaccurate, and remove them from the register following the review if appropriate. They were also able to identify eligible but unregistered individuals and invite them to apply to register.

Separate evaluations of the 2011 schemes were subsequently carried out by the Electoral Commission and the Cabinet Office. Both concluded that data matching might have the potential to supplement activity by EROs and assist in the transition to Individual Electoral Registration, but that further, well-constructed trials were needed in order to better evaluate that potential. Consequently, a further set of pilot schemes aimed at identifying potential electors missing from the register is being planned for late 2012 and early 2013.

In the course of the 2011 pilots an additional potential use was identified for data matching, namely as a mechanism for confirming existing electors for the purposes of Individual Electoral Registration. This would allow individuals whose details could be matched against trusted public databases to be “passported” on to the new individual electoral registration register without the need to make a new application for registration.  In the Government Response to pre-legislative scrutiny and public consultation on Individual Electoral Registration and amendment to Electoral Registration law (February 2012, Cm 8245) the Government announced that, subject to further testing this year, it was minded to use data matching to simplify the transition to Individual Electoral Registration for the majority of electors. The Order will enable that testing to take place during 2012.

EROs and the DWP will agree the arrangements for the transfer, storage, destruction and security of data during the schemes as required by Article 4 of the Order.

An overarching privacy impact assessment of the data schemes is Annex A of the Explanatory Memorandum for the Order. A privacy impact assessment will also be prepared for each scheme as it involves the processing of personal data of individuals.

James Goudie QC


Restriction on Local Authority surveillance

June 18th, 2012 by James Goudie QC

The Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) (Amendment) Order 2012, SI 2012/1500 (“the 2012 Order”), made on 11 June 2012 and coming into force on 1 November 2012, restricts the circumstances in which local authorities may authorise directed surveillance under the Regulation of Investigatory Powers Act 2000 (“RIPA”).  The 2012 Order amends the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010, SI 2010/521 (“the 2010 Order”), which prescribes the offices, ranks and positions of the individuals within a public authority who have power to grant authorisations for the carrying out of directed surveillance, as defined by s26(2) of RIPA, and sets out the restrictions on the circumstances in which authorisations can be granted.

Article 2(4) of the 2012 Order inserts a new Article 7A into the 2010 Order, to impose a new restriction on individuals holding a prescribed office, rank or position in any county council in England, a London borough council, the Common Council of the City of London in its capacity as a local authority, the Council of the Isles of Scilly, or any county council or county borough council in Wales. Such an individual may not now grant an authorisation for the carrying out of directed surveillance unless it is for the purpose of preventing or detecting a criminal offence and it meets the condition set out in New Article 7A(3)(a) or (b). Those conditions are that the criminal offence which is sought to be prevented or detected is punishable, whether on summary conviction or on indictment, by a maximum term of at least 6 months of imprisonment, or would constitute an offence under sections 146, 147 or 147A of the Licensing Act 2003 or section 7 of the Children and Young Persons Act 1933.