R (Nash) v Barnet London Borough Council

The Administrative Court has dismissed a judicial review challenge to Barnet London Borough Council’s decision to award two contracts to outsource certain services to private contractors.

Lord Justice Underhill accepted the Council’s argument that most aspects of the claim had been brought considerably out of time, since the challenge was in substance directed at the Council’s much earlier decisions to seek to procure private sector partners.

Of significance for future cases, the Judge held that the House of Lords’ decision in R (Burkett) v Hammersmith & Fulham LBC [2002] 1 WLR 1593 is not authority for the proposition that in every situation in which a public law decision is made at the end of a process which involves one or more previous decisions, time will run from the date of the latest decision, notwithstanding that a challenge on identical grounds could have been made to an earlier decision in the series. If the earlier and later decisions are distinct, each addressing what are substantially different stages in a process, then it is necessary to decide which decision is in truth being challenged; if it is the earlier, then the making of the second decision does not set time running afresh.

The Judge accordingly refused permission on grounds of delay. He went on to state his conclusions on the substance of the claim, indicating that he would have dismissed the challenges by reference to the public sector equality duty and alleged breach of fiduciary duty, but would have held that the Council had not complied with its consultation obligations under section 3 of the Local Government Act 1999.

The judgment is available at:
http://www.bailii.org/ew/cases/EWHC/Admin/2013/1067.html

Monica Carss-Frisk QC and Iain Steele acted for the Council.