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Cite as: [2003] EWHC 3112 (Admin)

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Neutral Citation Number: [2003] EWHC 3112 (Admin)
Case No: CO/5244/2003; CO/5625/2003

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
16 December 2003

B e f o r e :

THE HONOURABLE MR JUSTICE SILBER
____________________

Between:
Case No: CO/5244/2003 THE QUEEN (ON THE APPLICATION OF GIUSEPPE AGNELLO AND FOURTEEN OTHERS, KNOWN AS THE WESTERN INTERNATIONAL CAMPAIGN GROUP)
Claimants
- and -

THE MAYOR AND BURGESS OF THE LONDON BOROUGH OF HOUNSLOW
Defendant
- and -

KIER PROPERTY DEVELOPMENTS LIMITED
Interested Party
- and -

WESTERN INTERNATIONAL MARKET TENANTS ASSOCATION LIMITED
Interested Party
- and -


Case No: CO/5625/2003 A1 VEG LIMITED
Claimant
- and -

THE LONDON BOROUGH OF HOUNSLOW
Defendant
- and -

WESTERN INTERNATIONAL MARKET TENANTS ASSOCIATION AFI and 36 OTHERS
Interested Parties

____________________


____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mr Justice Silber:

    I Introduction

  1. Two applications for judicial review are before the court in which the claimants each occupy, either themselves or through companies owned by them or through their director's business purposes, one or more units at the Western International Market, Southall, Middlesex ("the Existing Market"). The London Borough of Hounslow ("the Council") is the freehold owner of the market, which has some 232 stands occupied by 80-100 traders, of whom the majority act as wholesalers of fruit, vegetables and flowers.
  2. In 1996, the Council decided to build a New Market ("the New Market") on nearby land, which would replace the Existing Market. The proposed New Market is to be about two-thirds of the size of the Existing Market and therefore many of the occupants of the units at the Existing Market will be unable to obtain units at the New Market. This application concerns the procedure by which the tenants for the new site were selected. The claimants were unsuccessful applicants, who are dissatisfied with the procedure followed and the decisions arrived at.
  3. Many of the claimants, but not all of them, are members of the Western International Market Tenants' Association Limited ("the Tenants' Association"), which has been an association to which most of the occupants of units at the Existing Market belonged. The project for the New Market was discussed at various meetings of the Tenants' Association starting in 1995 and going on until 2000.
  4. On 6 December 2000, the Council and the Tenants' Association wrote a joint letter ("the 6 December 2000 letter") to all tenants to inform them of the proposal to develop a new smaller market to replace the Existing Market and to invite tenants of the Existing Market to indicate whether they wished to take up tenancies in the New Market. As the New Market would be approximately two-thirds of the size of the Existing Market, the letter explained that selection among the tenants would have to take place "and the decision as to who shall relocate will be based, primarily, on use, financial standing and rent payment received". It was also pointed out that "ultimately the Council will make the decisions, but this will be done in conjunction with the [Tenants' Association] Board".
  5. On 2 March 2001, the Tenants' Association entered into a cooperation agreement with the Council and Kier Property Developments Limited ("Kier") in connection with the New Market. On 1 July 2003, the Council entered into a written agreement ("the Development Agreement") with Kier, for Kier to build the New Market.
  6. In order to assist in selecting tenants for the New Market, a Relocation Committee was set up by the Council which included representatives of the Council and members of the Tenants' Association who had stands in the Existing Market. The existence of the Relocation Committee was disclosed to the members of the Tenants' Association but the identity of its members was kept secret from tenants until after the decisions had been made on who was to be offered space in the New Market so as to avoid its members being lobbied by applicants for units in the New Market.
  7. The Tenants' Association duly wrote to tenants of units at the Existing Market, explaining that the Council was currently considering in conjunction with the Tenants' Association "relocation issues" and it asked for the supply of financial information.
  8. In November 2002, the project for the New Market was discussed again at the Tenants' Association's Annual General Meeting as it had been at the previous one in November 2001. In April 2003, the Tenants' Association held an Extraordinary General Meeting concerning the project for the New Market.
  9. By letters dated 9 July 2003 ("the decision letter"), the claimants were among those who were informed by the Council of the decisions that they were not included in the "initial list of possible tenants for the New Market". It is this decision, which is the subject of the present challenges. Some of the claimants engaged in correspondence with the Council and at least one meeting took place, but all the claimants have been unsuccessful in persuading the Council to allocate them space in the New Market.
  10. Thereafter, two claims were brought against the Council to challenge the Council's communicated decision by the decision letter refusing to give them space in the New Market ("the decision"). The first claim was brought by A1 Veg Limited ("A1 Veg"), which is a wholesale supplier of fruit and vegetables and whose Directors are the lessees and who trade from four units at the Existing Market. The second claim has been brought by Giuseppe Agnello and fourteen other people ("the Agnello claimants") who are either tenants, licensees or the proprietors of business entities, which are tenants or licensees at the Existing Market.
  11. On 18 November 2003, Maurice Kay J ordered that both claims should be listed together as "rolled-up permission and substantive hearings" to be heard as a matter of urgency with expedition. The reason for the urgency is that the Development Agreement is conditional upon the Council securing by 1 January 2004, 80% take-up of executed Pre-Let agreements as otherwise the Development Agreement could be terminated by Kier. It is common ground that if the claimants are successful on their application, the Council may be unable to comply with its obligations.
  12. Because of their urgency, these claims have come on for hearing very speedily. I must pay tribute to the legal teams for all the parties not only for meeting very demanding timetables but also for the clear and cogent written and oral submissions that have been placed before me.
  13. The Tenants' Association is an Interested Party on both applications and it has adduced evidence and it has been represented at the hearing. Those who have been offered tenancies at the New Market have been joined as Interested Parties in the claim brought by A1 Veg but they have not adduced evidence, made submissions or participated in the hearing. Kier were joined as an Interested Party in the Agnello claim but it has neither filed evidence nor been represented at the hearing.
  14. II The Issues

  15. The claimants contend that the process which led to the decisions under challenge was seriously flawed and conspicuously unfair, resulting in unsustainable decisions to refuse the claimants space in the New Market. The complaints of A1 Veg and the Agnello claimants overlap and between them their submissions are that the decision:-
  16. (1) involved unlawful delegation or abdication of the Council's decision making function to the Tenants' Association Relocation Committee ("the Unlawful Delegation Issue");
    (2) was tainted by bias through the involvement of a small group of individuals who were members of the Board of the Tenants' Association (known as the "Relocation Committee") and who were direct competitors of the claimants for trade and/or for units in the New Market with a direct financial interest in the decision to allocate space in the New Market ("the Bias Issue");
    (3) was procedurally unfair, in that no opportunity was ever afforded to the claimants or other tenants to make representations about the application to them of the criteria for relocation to the New Market; in particular they did not know the case they had to meet and they were never offered any opportunity to deal with negative factors or any information that it was proposing to rely upon in making the Decision, some of which emanated from their direct competitors in the shape of the members of the Tenants' Association Relocation Committee. The Agnello claimants contend that there were breaches of the rules of natural justice ("the Procedural Unfairness and Natural Justice Issue");
    (4) failed to take into account relevant considerations and/or was in any event Wednesbury unreasonable in refusing space in the New Market to A1 Veg, being one of the biggest and most successful traders in the market that amply satisfied the 'primary' criteria of use, financial standing and rent payment record. The Agnello claimants do not make this complaint ("the Wednesbury and Irrationality Issue");
    (5) was defective as no or no adequate reasons were given for the decision as the Council had taken a deliberate decision not to do so ("the Inadequate Reasons Issue").
  17. The Tenants' Association contend that the Council's decision under challenge not to give the claimants units in the New Market is not amenable to judicial review. The Council supported by the Tenants' Association contend that the claimants cannot pursue their claims because of delay. Either of these contentions would if upheld lead to the dismissal of the present applications and so I will now consider them first.
  18. III AMENABILITY OF THE DECISION UNDER CHALLENGE TO JUDICIAL REVIEW

    The Submissions

  19. Mr. Joseph Harper QC for the Tenants' Association contends that the Council's decision in respect of the selection of traders for the New Market was a commercial decision, which is not susceptible to judicial review. He submits that there is no additional factor that introduces a public law element into that decision. The claimants disagree and contend that the Council's decision is amenable to judicial review. Mr. Michael Fordham for the Council does not support Mr. Harper's contention that the decision is not justiciable on public law grounds but he did not make any submissions on this issue.
  20. Mr. Harper submits that the decision under challenge is, what he describes as, "a purely management decision by a local authority acting as a land owner". He says that if these claimants had been tenants of a private sector landlord in, for example, a shopping centre, they could not have had any legal complaint against a landlord, who chose not to provide alternative accommodation following the redevelopment of the holding. Mr. Harper's argument is that there is no public element in the decision of the Council to compare one tenant to another, particularly when that decision is taken on the basis of compatibility and use within the proposed development as well as the ability and willingness to pay rent.
  21. He points out that there are analogous decisions under section 123 of the Local Government Act 1972, which empowers a local authority to dispose of land held by it, in any manner it wishes, although if it is done without the consent of the Secretary of State, it has to be sold at the best price reasonably obtainable. In those cases, Mr. Harper says that it has been held that the decision whether to sell or not to sell is one that is a private matter unless a public law element was introduced into the decision making process by some additional factor, for example, by an adopted policy against disposal or by legal inhibition or if the land is public open space.
  22. Miss. Monica Carss-Frisk for A1 Veg and Mr. Paul Brown for the Agnello claimants contend that they are entitled to pursue their claims by judicial review as there is a sufficient public law aspect included in their claims and in the Council's role. It is the approach of the courts to the question of identifying what makes a claim subject to judicial review, which is the critical aspect of this issue to which I now turn.
  23. Discussion

  24. In Mass Energy v. Birmingham City Council [1993] Ennv LR 298, the Court of Appeal considered that a claim for judicial review could not be brought against a Council alleging that it had handled incorrectly a tender submitted during a tendering process and which was a procedure, which had been carried out against the background of a statutory provision. The Court of Appeal said that the complaint of the unsuccessful tenderer was not amenable to judicial review because, in the words of Glidewell LJ:-
  25. "If there were no statutory requirement that the city council should enter into a contract for its waste disposal operations, and particularly the construction of the incinerator to be the subject of a contract entered into by tender, but if the council had sought voluntarily to enter into a contract by tender deciding to adopt that process of its own volition, then in my view there would be no public law element in such a dispute at all…….
    I accept that because the statutory powers of the council not to contract by means other than those described in Part II of Schedule 2 of the Act, there is a public law element in this dispute to this extent (but only to this extent): that is a proper subject for judicial review to consider whether the council have complied with section 51(1) and entered into a contract as a result of following the procedure laid down in Schedule 2, Part II of the Act. In my judgment, judicial review has no further place in my judgment in this dispute" (pages 306-307).

  26. In R v. London Borough of Camden ex parte Hughes [1994] COD 224, Latham J (as he then was) held that the mere exercise of an essentially private law function, such as entering into a contract pursuant to a statutory power, is not susceptible to judicial review. Subsequently, Keene J (as he then was) in R v. Bolsover District Council ex parte Pepper [2001] JPL 804 explained that the judgment of Latham J in the Camden case "also indicated there may sometimes be a public law element injected into an otherwise private law matter because of some additional factor" (page 811 [27]). No such public law element had been introduced in either the Camden or the Birmingham case.
  27. In the Bolsover case, the claimant challenged the refusal of the Council to sell certain land to him on the basis that he had a legitimate expectation, either to be sold the land or at least to be allowed to make representations before any decision not to sell it was taken. Keene J held that this claim was not amenable to judicial review and he explained that:-
  28. "Normally a decision by a local authority to sell or not to sell land which it owns is to be seen as a private law matter unless a public law element is introduced into the decision making process by some additional factor. That is because the starting point is that the local authority, in so deciding, is simply acting as a landowner in such cases and is not performing any public function. There may sometimes be some additional factors present; for example, if the authority has a policy which relates to the retention or disposal of certain types of land, that may make a decision a public law matter (see Pardes House School). A decision to dispose of open space without observing the statutory procedural requirements of section 123(2A) as to advertising the proposal would likewise involve a sufficient public law element. But neither of those factors arises here" (page 812 [33]).

  29. More recently, in R (Molinaro) v. Kensington and Chelsea Royal London Borough Council [2002] LGR 336, Elias J was faced with a claim after the defendant Council had refused on planning policy grounds to consent to a permitted use under a lease in which it was the lessor. He decided that this decision of the Council was amenable to judicial review because of the existence of the necessary public law element.
  30. Elias J explained his reasons for rejecting the contention that the claims advanced in that case were private law claims by saying that:-
  31. "63. In my judgment, this argument is wholly unsustainable, at least in respect of the first two claims. Manifestly, the council was not simply acting as a private body when it sought to give effect to its planning policy through the contract. Again, the decision not to permit a change of use, albeit one involving the exercise of discretion under a contract, was taken for the purpose of giving effect to its planning objectives.
    64. In my judgment, these factors themselves injected a sufficient public element into the decisions to justify their being subject to public law principles. In any event, I would, with great respect, differ from some of the wider observations of Keene LJ in the Bolsover case, although for reasons I return to below, not the decision itself.
    65. In my view, the fact that a local authority is exercising a statutory function ought to be sufficient to justify the decision itself being subject in principle to judicial review if it is alleged that the power has been abused. Nor do I see any logical reason why an abuse of power made pursuant to some policy should be treated differently to one made on a specific occasion" (page 348).
  32. In R (Beer) v. Hampshire Farmers Markets Limited ([2003] EWCA Civ 1056), the Court of Appeal had to consider whether a decision, which had been made by Hampshire Farmer Markets Limited ("HFML") to reject an application by Mr. Beer to be allowed to participate in the 2002 Farmers Market Programme organised by HFML, was susceptible to judicial review. The Court of Appeal considered that the decision was susceptible to judicial review and it gave guidance on the factors, which determined whether, in that particular market case, the decision to exclude a participant was amenable to judicial review.
  33. In that case, HFML had taken over from the County Council the running of the markets from which the claimant had been excluded. As in this case, the argument of the defendant in that case was that the decision under challenge was not amenable to judicial review because of the absence of any public function being performed by HFML. The Court of Appeal rejected that argument.
  34. Dyson LJ (with whom Longmore LJ and Sir Martin Nourse agreed), explained that:-
  35. "Unless the source of power clearly provides the answer, the question whether the decision of a body is amenable to judicial review requires a careful consideration of the nature of the power and function that has been exercised to see whether the decision has sufficient public element, flavour or character to bring it within the purview of public law. It may be said with some justification that the criterion for amenability is very broad, not to say question-begging, but it provides a framework for the investigation that has to be conducted" [16].

  36. In that case, the counsel for the County Council had conceded that if the County Council had made the decision under challenge, it would have been amenable to public law. Dyson LJ explained that this concession was correctly made because:-
  37. "The power being exercised by [the County Council] would have had that public element or flavour .. the fact that the power was being exercised in order to control the right of access to a public market is a most important feature" [30].

  38. Dyson LJ also later stated that an "essential feature" in determining that the decision had a "sufficient public element" was that the markets were "held on publicly owned land to which the public have access" [33]. He explained that a further factor on which he based his decision was the close relationship between the County Council and HFML. It is noteworthy that he reached that conclusion even though HFML was not performing a function of statutory control or regulation and that there was no statutory provision underpinning HFML's roles.
  39. Applying those principles to this case, there are a number of features, which indicate that the decision under challenge in the present cases have the necessary "public element, flavour or character" to make them amenable to judicial review. First, the Council had specific statutory power in relation to the market, which had been established pursuant to the Council's powers conferred in Part IV of the Hounslow Corporation Act 1968 ("the 1968 Act") conferred on the Council the power to maintain markets. Section 30 of the 1968 Act conferred on the Council the power to lease land, buildings and stores situated in the "market". Second, the market was held on publicly-owned land, which belonged to the Council. Third, the power of the Council to regulate the activities on the market and the conduct of the tenants at the market emanates not solely from the lease, which would be the position in the case of a private landlord. The power is also derived from the Council's power to pass byelaws, which is a right conferred on the Council by the 1968 Act: ss. 34 and 35. Even though the byelaws are not relevant to the present claim, I agree with Mr. Brown that the fact that Parliament has granted such powers to the Council shows that Parliament considered that there was a public interest in the running and operation of the market.
  40. Fourth, there is the further point that the Council invoked their rights to make byelaws which, among other things, controlled the activities of non-tenants and these powers are underpinned by a power to fine in byelaw 29. Those byelaws show that the Council was performing public law functions in controlling activities in the market. Even though the terms of the byelaws are irrelevant to the claim, their existence shows that the Council's function was different from that of a private landlord in relation to the market as it was performing public functions different from those of a private landlord.
  41. In order to show that the Council was not performing a public function, Mr. Harper attaches significance to his contention that the public did not have unfettered right of access to the Existing Market, to which access is controlled by means of a barrier, which is manned by the market security force throughout each day and night. The times of opening of the Existing Market is controlled by the Council in agreement with the Tenants' Association and at present, the opening hours are from 3.00 a.m. until 12 noon. There is access to the market by retailers by purchasing an annual or a daily pass. Incidentally, there is no suggestion that access to the New Market will be based on different principles than those applicable in the Existing Market.
  42. The Agnello claimants state that members of the public can and do have access to the Existing Market and that they frequently make bulk purchases but the Tenants' Association disagree. In addition, members of the public who are not in the trade use the bank, the cafι and the vehicle repairer in the Existing Market. In spite of Mr. Harper's protestations about the correctness of this allegation, I find this evidence convincing for three reasons. First, the photographs supplied by Mr. Harper do not indicate that pedestrian members of the public are not allowed to enter the market as the only restrictions on entry related to cars while the signs affecting pedestrians state "entry by card or money only beyond this point". It is noteworthy that members of the public were not expressly excluded in the terms of the notices from entering the Existing Market and they could enter by paying. Second, the byelaws do not prohibit members of the public from entering the market. Third, although the Tenants' Association and the Council have adduced detailed evidence, there is no evidence of any instruction having been given to the security force at the entry barrier to refuse entry to members of the public. I therefore conclude that the public do have access to the Existing Market and thus as in the Hampshire case, this factor constitutes an additional reason why this case has the public law element, which makes its decisions under challenge amenable to judicial review.
  43. In case I am wrong and Mr. Harper is correct and that the public are excluded from the Existing Market, I will consider the effect of this. In the Hampshire case, the Court of Appeal held that the fact that the public had access to the market meant that it was performing a public function. The Court of Appeal did not say that this factor was required in all cases if a claim was to be amenable to judicial review. Indeed, no cogent reason has been put forward to suggest that it should be; indeed if Parliament, for example, gave a local authority a power to run markets solely for, say, the elderly handicapped who were the only people permitted to enter the market, I do not see why a decision to exclude a particular trader from that type of market should be less amenable to judicial review than a similar decision in relation to a market to which all the public had access. It is significant that even on Mr. Harper's case, entry to the Existing Market is open to a significant and specific part of the public, namely retailers and traders and thus it is not a private market. These people have the right to attend the market upon purchasing a ticket or card. To my mind, this point supports (rather than undermines) the idea that the present claim has sufficient public content as to enable it to be pursued by judicial review, especially in the light of the other factors to which I have referred.
  44. In all those circumstances, I conclude that the decisions under challenge do have sufficient "public element, flavour or character" for them to be subject to judicial review. Thus, in spite of Mr. Harper's forceful submissions, this objection of the Tenants' Association on this issue fails.
  45. IV THE DELAY ISSUE

  46. As both claims were lodged on the last day of the prescribed three month period for bringing claims for judicial review, Mr. Fordham contends that the court should not grant permission to pursue the present judicial review applications as the claimants have failed to bring their judicial claim "promptly" in the absence of some good reason to extend time. He points out correctly that the requirements in CPR 54.5 that a claim form must be filed "promptly" is not alternative to, but is additional to, the requirement that it must be brought "in any event no later than three months after the grounds to make the claim first arose". Mr. Fordham stresses that this is especially important when the successful challenge to a decision would involve unravelling grants made to third parties, such as in a competitive context. In support, he points out that the court is entitled to refuse permission and/or a remedy of judicial review in a case of undue delay and where granting judicial review would cause substantial hardship, prejudice or detriment to good administration: Supreme Court Act 1981 s.31(6).
  47. There has been some recent controversy relating to the requirement to bring a claim promptly because in R (Burkett) v. Hammersmith LBC [2002] 1 WLR 1593, Lord Steyn stated "that there is at the very least doubt whether the obligation to apply promptly is sufficiently certain to comply with European Community Law and the European Convention on Human Rights" (page 1611A [53]). He explained that "it is a matter for consideration whether the requirement of promptitude, read with the three month limit, is not productive of unnecessary certainty of practical difficulty" (supra).
  48. Although the Appellate Committee was possibly not aware of it when it reached its decision in Burkett, the issue raised by Lord Steyn had previously been considered by the European Court of Human Rights in Lam and Others v. United Kingdom (Application 41671/98 – 5 July 2001), in which the applicants sought to impugn the application of the promptness requirement in CPR 54.5 on the grounds that it restricted their right of access to a court. The response in the European Court's judgment was that:-
  49. "The court observes that the requirement was a proportionate measure taken in pursuit of a legitimate aim. The applicants were not denied access to a court ab initio. They failed to satisfy a strict procedural requirement which served a public interest purpose, namely the need to avoid prejudice being caused to third parties who may have altered their position on the strength of administrative decisions".
  50. More recently, in R (on the application of Young) v. Oxford City Council [2002] 3 PR 86, Pill LJ explained that:-
  51. "Unless and until the issue is resolved adversely to the rule, the obligation to file the claim form promptly remains a feature of English law, in my view, and the presence of the word "promptly" in the rule should not be ignored. Those who seek to challenge the lawfulness of planning permissions should not assume, whether as a delaying tactic or for other reason, that they can defer filing their claim form until near the end of the three-month period in the expectation that the word "promptly" in the rule is a dead letter" [28].

  52. Thus, the requirement for a claimant to issue proceedings "promptly" remains. Mr. Fordham agreed with me that a useful starting point is that when judicial review claims are brought within the prescribed three month period, there is a rebuttable presumption that they have been brought promptly, but Mr. Fordham contends that the presumption can be rebutted in the present case. In order to show why the claimants in the present applications did not act promptly and permission should not be granted, Mr. Fordham relies on what he considers to be the comparable position considered by the Court of Appeal in R v. Independent Television Commission ex parte TVNI Limited (1991) [1996] JR 60 ("the ITC case"), in which it refused to grant permission to an unsuccessful applicant to pursue a judicial review application to challenge the granting of a Television Channel Licence. Lord Donaldson MR explained that "in these matters, people must act with the utmost promptitude because so many third parties are affected by the decision and are entitled to act on it unless they have clear and prompt notice that the decision is challenged" [at page 61]. In other words, his decision was based on the fact that the "utmost promptitude" is required where third parties are or will probably be affected by the delay in pursing an application for judicial review.
  53. I consider the present claims are very different from the ITC case for four main reasons, which individually or collectively show that no prejudice has been caused by the delay in the present cases and that the claims should not be dismissed on grounds of delay. First, any intervention by the court in the present proceedings would not, unlike the position in the ITC case, adversely affect market dealings undertaken in good faith as there is no evidence of market dealings in this case. Second, unlike in the ITC case, there is no evidence that third parties would be prejudiced. It is noteworthy that although the successful applicants for units in the New Market were joined as Interested Parties in the A1 Veg action, they have not taken any part in the proceedings, even though they would have had a clear opportunity to show how they would be or have been or might be prejudiced by the delay by the claimants in commencing the present proceedings. Furthermore, Kier have not adduced any evidence or made any submissions even after being joined as an Interested Party by the Agnello claimants. The silence of these parties undermines any idea they have been adversely affected by the delay as I cannot believe that any of these parties would have been coy about either complaining or bringing any relevant matters to the court's attention as they did in the ITC case.
  54. Third, in any event, any delay by the claimants has to be considered in the light of the long wait ahead until at least 2006 before the units in the New Market can be used; this is again different from the ITC case. It is true that the Council signed a Development Agreement with Kier for the New Market in July 2003, but the Council have explained that this New Market development will not be completed for at least two years and that the market will not then be operational for a minimum of two and a half years, i.e. not before 2006. Not surprisingly, tenants are not being expected to relocate until the completion of the development at the earliest in about two years time. Thus, prospective tenants are unlikely to be adversely affected if the decision is quashed and, as I anticipate, the Council then proceeds to reconsider the matters speedily after giving the claimants an opportunity to comment. No suggestion has been made that they would be prejudiced.
  55. Fourth, unlike the ITC case, there is no evidence that the Council has been or will be prejudiced by the delay because when the Council's decision is quashed, it is by no means clear that Kier will or even might exercise its rights under the Development Agreement as there are many instances in which a party has a right to do something but does not exercise it; this might be such a case. The obvious way for the Council to show that Kier intends to enforce a right or that Kier might well enforce it was by adducing evidence, which would be easy to do in this case, especially as first the Council and Kier are obviously still in contact and second Kier was joined as an Interested Party by the Agnello claimants. In their commendably well-prepared case, it is interesting that the Council could have adduced but did not adduce any corroborative or other evidence to show that there is a real risk that the Development Agreement would be terminated by Kier. My conclusion is that it is very unlikely that Kier would seek to enforce any right to terminate the agreement, especially as it is quite clear that the New Market is heavily over-subscribed, as is shown by the number of dissatisfied applicants for space in the New Market, who are now pursuing with vigour the present claims. In any event, Kier's obligations are subject to soil stability, contamination issues and archaeological surveys and I have no idea whether or not this will be an obstacle as no evidence has been adduced about it.
  56. Mr. Smith also suggests that even if Kier were not to terminate the Development Agreement, there could still be a consequential effect for the Council of the delay in the form of the loss of the cost limits for the building of the New Market if the Development Agreement did not become unconditional within two years of 1 July 2003; he says that the additional costs would be "up to one million pounds". The Development Agreement is highly likely to become unconditional before that date, even if, as is the case, it now becomes necessary for the Council to carry out an additional stage of the selection process of new tenants. In any event, I do not understand how the Council have arrived at the unexplained and unquantified possible loss of up to one million pounds, which is too vague to have any significance or to carry any weight.
  57. The Council also rely on the decision of Maurice Kay J in R (Liberty Radio) v. Radio Authority ([2003] EWHC 3057 (Admin)) in which he refused to grant permission to a disappointed applicant for a radio licence on, among other grounds, that he would suffer serious prejudice and that to grant permission "would be detrimental to good administration" [40]. That case turned on evidence not present in this case which showed the problems that would confront the successful applicant if the decision granting him a licence was quashed, but Maurice Kay J did state that:-
  58. "In my judgment, where a decision sought to be challenged relates to something such as a licensing decision by a licensing authority, in a commercial context, based upon competitive bids from a number of commercial organisations, the duty to make the application promptly is an exacting one. In my judgment this application simply was not made promptly" [36].
  59. I do not think that judgment can be regarded as an authority that can be relied upon because it was a permission application and the judge did not state that it could be cited thereafter (see Paragraph 6.1 of Practice Direction (Citation of Authorities) [2001] 1WLR 1001). Nevertheless, even if the Liberty Radio case could be used in this case, I do not believe that the experienced judge was intending to set an invariable rule because the basis for his comment must be that in the situation that he envisaged, there would be evidence of damage of some sort caused to the successful party; that is the usual position where there is a competitive process because the winner is usually entitled to an immediate benefit or a benefit that he could plan for immediately. That was not, as I have explained, the position in the present case and that might make it exceptional, especially, as in this case, the successful applicants are very unlikely to have made any plans or to have incurred any expenditure on their units in the New Market which they could not use until 2006.
  60. In this case there are two salient features of which the first is that there is no evidence that any third parties have been prejudiced by any delay in commencing proceedings; that is probably because there is a waiting period of more than two years between the date of the decision and the time when the successful applicants will obtain the fruits of their success. The second important factor is that there is no evidence of real prejudice caused to the Council, the decision-maker by the delay in commencing proceedings. Thus, the delay point fails but there are three additional factors which show why the Council cannot succeed on the delay point.
  61. First, this is not a case in which the claimants had lulled the Council into a false sense of believing that they were not aggrieved by the decision and then they later "out of the blue" issue their claims at the last minute. The claimants had been indignant about the decisions from the time when they heard of them and they had threatened to issue proceedings. For example, A1 Veg wrote to the Council on 11 July 2003 requesting the reasons for excluding it from the market. This was followed by further correspondence with the Council as well as with the Tenants' Association. By a letter dated 4 August 2003, Mr. Smith said that the Council would not respond to any further letters, but that he would be prepared to meet the claimants. A meeting then took place on 8 September 2003 and in the light of what occurred at that meeting, A1 Veg took further legal advice and a detailed letter before action was sent on 30 September 2003 by their solicitors to the Council. The Council's reply was contained in a letter dated 3 October 2003, but which was only received by the claimant's solicitors on 7 October 2003 by fax. Proceedings were then promptly started on 8 October 2003. The Agnello claimants also warned the Council that they were dissatisfied giving the Council notice of the claimants' concerns. This letter requested a full detailed response by 29 September 2003. No such response was apparently received prior to the Agnello claimants commencing proceedings on 8 October 2003.
  62. Second, my view that the delay argument must fail is supported by the fact that there was little urgency about the project, which means that the claimants should not be penalised for not acting urgently. There have been substantial delays by the Council in its decision-making process and this suggests that the delay in not initiating the present proceedings is not of great importance to the Council on this project. Although the decisions on the fate of the applications had been arrived at by the Council and Tenants' Association officials in January 2003, the final decisions on the allocation of units was only formally approved by the Council as late as 1 May 2003. Nevertheless, the tenants were not then notified of the decision until more than ten weeks later on 9 July 2003, which was about six months after Mr. Smith and the Tenants' Association had concluded their deliberations. The claimant's delay in starting proceedings does not seem significant in the light of the leisurely timetable, which had been followed by the Council, no doubt for good and sensible reasons of their own.
  63. Third, if proceedings had been brought six weeks earlier on, say, 1 September 2003 and this decision had been made in early November 2003, it is probably unlikely that the Council would have been able to have reconsidered the applications in time for them to obtain the 80% take-up of executed pre-let agreements by 1 January 2004 in order to ensure that Kier could not invoke its right to terminate the Development Agreement. Kier and the successful applicants would not have been in a better position if the A1 Veg claims and the Agnello claims had been brought six weeks earlier. This further distinguishes the present case from the ITC and Liberty Radio cases.
  64. In reaching this conclusion that the delay argument must fail, I have not overlooked Mr. Fordham's argument based on the decision of R v. Cardiff City Council ex parte Gooding Investments Limited [1996] Env LR 288. In that case, a waste-contract tenderer who knew that the Council was planning a joint venture agreement and who participated in a process designed to lead to such an agreement, was not permitted to seek to challenge it by judicial review. The decision in that case was based upon the fact that the applicant there knew all the relevant facts and that all the tenderers had spent considerable sums of money on the tenders and that if the claim was successful, they would have to spend further substantial sums. The position in the present situation was very different for the reasons that I have explained.
  65. The Council point out that in the Gooding case, it was said that ignorance of the law could not excuse delay but that comment has to be considered in the light of the fact that in that case, the delaying party was a "very large organisation with every opportunity to take advice on the law" and where there was said to be no doubt that it had already taken legal advice about the first tendering process which had been on a similar basis (p 301). By contrast, none of the claimants on these applications are a 'very large' organisation, nor could this be said of the other tenants in the market. Nor did the claimant or other tenants go through a similar process before, on which they had taken legal advice. Thus, the Gooding decision is based on very different facts from those that arise on the present applications; it does not assist the Council especially as it was not purporting to set out any principle of general application, but it was a decision based on facts, which are very different from those with which I am concerned.
  66. So I conclude that the Council cannot succeed on the delay issue and I now turn to consider the substantive issues.
  67. V THE UNLAWFUL DELEGATION ISSUE

  68. Miss. Carss-Frisk, counsel for A1 Veg, contends that the involvement by the Relocation Committee meant that the Council had unlawfully delegated or abdicated its decision-making function as the consent of the Tenants' Association was required in respect of each tenant. Mr. Fordham disagrees and he says that what happened was that the Council ultimately made the decision in conjunction with the Tenants' Association, as stated in the 6 December 2002 letter.
  69. It is convenient first to see if the claimants were right in contending that the Relocation Committee or the Tenants' Association were parties to the decision and went beyond what was stipulated in the 6 December 2000 letter. This entails first examining, who made the decision about who would provisionally be entitled to units in the New Market and second determining the role of the Relocation Committee and the Tenants' Association in that decision-making process.
  70. (i) Did the Council alone make the decision or was it a decision of the Council and the Tenants' Association?

  71. Miss. Carss-Frisk in her written submissions contends the evidence shows "that the consent of the .. Relocation Committee was required in respect of the decision concerning each individual tenant". This, she says, means that its role was much greater than that which had been stipulated in the 6 December 2000 letter.
  72. Miss. Carss-Frisk explained that the 6 December 2000 letter inviting applications for space at the New Market was signed jointly by the Council and the Chairman of the Tenants' Association and it stated that "ultimately" the Council would take the decision, but that this would be done "in conjunction with the [Tenants' Association] Board". By a letter dated 21 March 2002 signed by the Chief Executive of the Tenants' Association, the claimants were required to provide financial information to the Tenants' Association apparently she says, so as to enable the Tenants' Association to assess the claimant's suitability for relocation to the New Market, but the letter says that the Council "in conjunction with the Association is currently considering relocation issues concerning the New Market development". Miss. Carss-Frisk also relies on the fact that the decision letter from the Council stated that the decision as to relocation had been taken by the Council together with the Tenants' Association; the letter says that the Council "[has decided] together with the Tenants' Association".
  73. After it received the decision letter, A1 Veg wrote to the Council stating that it was disappointed by the decision and asking for details on how the decision came to be made. The Council's letter in reply of 14 July 2003 stated that the selection criteria for relocation had been agreed by the Tenants' Association and "implemented in accordance with their previous approval .. the relocations were agreed at a Working Party consisting of representatives of the Council and [the Tenants' Association]". Thus, Miss. Carss-Frisk says that the role of the Tenants' Association therefore went beyond what was stated on 6 December 2000.
  74. In order to decide if that submission is right and that the Tenants' Association's consent was required for any decision concerning the relocation of any particular tenant, it is necessary to examine precisely how the decisions under challenge came to be made. The 6 December 2000 letter told the tenants in relation to "the decision as to who shall relocate" that "we must stress that these decisions have not yet been made, although the preparatory work is underway". Mr. Graham Smith, the Property Manager of the Council, had previously asked one of his colleagues, A. Rench to compile a list of tenants at the Existing Markets and to provide him with her own recommendations on which tenants should and which tenants should not and which tenants could be offered space at the New Market. By February 2000, A. Rench, who was at the time responsible for landlord and tenant and estate management matters for the Council, had produced a preliminary list.
  75. Thereafter, Mr. Smith explained there were further financial investigations and an appraisal by the Borough Treasurer, which took into account financial information, which had been obtained by the Tenants' Association from the tenants as well as the credit ratings from the Association's bureau. In addition, there was a process of regular and frequent discussion and review by the Relocation Committee, which comprised Council officers together with four representatives of the Tenants' Association who provided further information to the Council. The Hounslow Racial Equality Unit was also consulted.
  76. On 16 January 2003, the Chairman and Vice-Chairman of the Tenants' Association wrote to Mr. Smith to record agreement with the schedule, which set out the applicants that would be relocated in the New Market and it also identified the applicants, who were possible candidates if vacancies should arise and those who were not to be offered space.
  77. On 11 March 2003, the Executive Committee of the Council then considered a report by the Lead Council members for this project who were Councillors Cadbury and Khwaja. By accepting the recommendation in paragraph 1.3 of their report, the Committee agreed that:-
  78. "The tenants to be reallocated be approved in accordance with the criteria set out in section 6 and authority be delegated to the Head of Project Coordination and Strategic Property, in consultation with the Lead Members for the project, to make decisions as required".
  79. On 30 April 2003, Mr. Lee Dawson, Head of Project Coordination and Strategic Property wrote a letter to the Lead Council Members with a document setting out in tabular form ("the Council's table") which tenants should be offered accommodation and which should not be offered accommodation; it also explained with comments explaining how each applicant fared in respect of the three criteria set out in the 6 December 2000 letter. Mr. Dawson wrote in his letter that:-
  80. "I am now pleased to recommend that the tenants shown in green on the attached list be approved as the tenants to be relocated to the proposed New Market. The remaining tenants (in red) will be kept under review and, if space becomes available as a result of any of the "green" tenants not wishing to proceed will be reconsidered for space in the proposed market".
  81. On 30 April 2003, the Lead Council Members gave their agreement to the recommendation and on 1 May 2003, Mr. Dawson agreed to exercise his delegated authority by taking the action recommended in the Council's Table. I conclude that in this case, the decision to offer or not offer tenancies in the New Market was taken by the Council Lead Members and/or by Mr. Dawson as they had the right to accept, to veto and to modify any recommendation contained in the Council's Table. If the Council Lead members and Mr. Dawson had decided to change entries on the Council's Table, there is nothing to show that they would have been obliged to go back to the Tenants' Association or to the Relocation Committee for approval of those changes. The Tenants' Association had been consulted and it is now necessary to ascertain the role of the Tenants' Association in the decision-making process.
  82. (ii) What was the role of the Tenants' Association or the Relocation Committee in the Decision-Making Process?

  83. Miss. Carss-Frisk submits that the role of the Tenants' Association was greater than merely acting in conjunction with the Council, who alone would ultimately have made the decision. On the other hand, Council contend that the role of the Tenants' Association and the Relocation Committee was not that of a decision-maker and that the Tenants' Association did nothing more than work "in conjunction" with the Council. Mr. Smith explains that the Tenants' Association had an important role in assisting the Council, for example, by contacting individual tenants to chase up financial information that had been requested but which had not been provided, by considering the position of tenants against the criteria in the 6 December 2000 letter and by making information available to the Council, such as credit ratings from the bureau. He says that another important function of the Tenants' Association was of ensuring that the criteria set out in the 6 December 2000 letter were adhered to in the selection process.
  84. I asked Miss. Carss-Frisk and Mr. Brown if they could point to any instances in which members of the Tenants' Association, whether on the Relocation Working Party or otherwise, had exercised or appeared to exercise a veto against any view that the Council wished to take. They were unable to do so, but they attached importance to various statements from the Tenants' Association's members on the Relocation Working Party making suggestions, which were accepted by the Council that various applicants should be placed in different categories from those which the Council had proposed.
  85. The picture that emerged was first, that the ultimate decision relating to who would be offered units in the New Market was that of the Council and second, that in doing the work necessary to obtain their information relating to the Council's three criteria, the Council had worked closely with the Tenants' Association through the Relocation Committee, which had assisted the Council in the way that I have indicated.
  86. The Tenants' Association representatives on the Relocation Committee made suggestions and gave their opinion on the extent to which applicants for new units satisfied the Council's three criteria, but they were not decision-makers to whom the Council had delegated or abdicated its decision-making. Thus, the claimant's complaint on this issue fails.
  87. VI THE BIAS ISSUE

  88. Miss. Carss-Frisk and Mr. Brown contend that the decision to refuse to allocate units in the New Market to the claimants was tainted by bias because a small group of individuals belonging to the Tenants' Association were intimately involved in and were parties to the decision, notwithstanding first that they were direct competitors of some of the claimants with their own businesses in the Existing Market and second, that they also had a pecuniary and personal interest in securing tenancies for themselves in the New Market. Thus, it is said by the claimants that these members of the Tenants' Association had a financial interest in the decision as to who would be permitted to acquire units in the New Market. Miss. Carss-Frisk stresses that additionally the identity of the members of the Tenants' Association Relocation Committee was kept a secret from the claimants by the Tenants' Association and by the Council.
  89. The case of the claimants is based not on an allegation of actual bias but one of apparent bias. Mr. Fordham supported by Mr. Harper for the Tenants' Association dispute that this is a case of apparent bias and they stress that the procedure adopted by the Council was what they had said that they would use in the 6 December 2000 letter when they invited tenants of the Existing Market to indicate whether they wished to take up tenancies in the New Market. The Council and the Tenants' Association also contend that there was a good reason for their decision not to identify who was on the Relocation Committee of the Tenants' Association and that the reason was to avoid the canvassing of its members. In any event, they submit that the claimants have not been prejudiced by the fact that they did not know the precise identity of the membership of that Committee. Additionally, Mr. Fordham contends that there was no validity in the argument of Miss. Carss-Frisk that the Tenants' Association would use its influence against tenants such as A1 Veg, who had contracted out of the protection of the Landlord and Tenant Act 1954 as amended. Indeed, Mr. Bray's recent evidence shows that this complaint of A1 Veg is not justified by producing an analysis of those who were offered tenancies in the New Market even though they had contracted out.
  90. The most potent complaint of the claimants on bias is that the Council not only consulted with the Relocation Committee but that it also received detrimental allegations about some of the claimants from the Relocation Committee in circumstances in which the people making the allegations were first trade competitors of some of the claimants and were second, competitors of the claimants for units in the New Market. The apparent bias then arises because the claimants were not given an opportunity to comment on those facts with the result that the decision-maker did not hear in reply the views of the claimants before it made its decision. So it is contended that as the claimants were not aware of this information and that they were not given an opportunity to comment on it, the Council only heard from one side about the claimants and that the source of this information had an interest in the final decision on the allocation of units. Mr. Fordham contends that this is not a case of apparent bias, or even if it was, then it has been waived by the claimants. It is convenient to look at the position of A1 Veg first and I will set out the facts against which its claim of apparent bias is to be considered.
  91. Three of the four members of the Relocation Committee, namely the Chairman (Mr. George Bray), the Vice-Chairman (initially Mr. Charles Rees and then Mr. Robert Smith) and the Secretary (Mr. David Street) ("the Trading Members of the Relocation Committee") were competitors of A1 Veg for business in the same section of the wholesale fruit and vegetable trade in which they were all engaged. I should explain that there are various different sections of the wholesale fruit and vegetable market but A1 Veg and the three members of the Relocation Committee were all involved in the wholesale market for European fruit and vegetables, rather than say for African or Asian fruit and vegetables.
  92. In addition, the Trading Members of the Relocation Committee were all competing with A1 Veg for units in the New Market; although the members of the Relocation Committee were confident of obtaining units in the New Market, they could not be certain that they would obtain them until the elected members of the Council (and in particular the Lead Members) had actually made that decision. Indeed, Mr. Fordham seemed to aver when dealing with the unlawful delegation issue that the decision of allocating units was the decision of those members of the Council or Mr. Dawson. Incidentally, the fourth member of the Relocation Committee, Mrs. Uli Hayes is not a trader but is the Chief Executive of WIMTA.
  93. Whilst it was in operation, the Relocation Committee frequently provided information and opinions to Mr. Graham Smith of the Council about individual tenants. Indeed, Mr. Bray explained in his witness statement that "the Relocation Committee's role was to provide information and ensure that the criteria were applied correctly". This is what it did as in the case of A1 Veg and there is an annotation on one of the Council's records which states that "GB – subletting (illegal)" which refers to an allegation made against A1 Veg by Mr. George Bray, the Chairman of the Tenants' Association and a member of the Relocation Committee. This was clearly a very material allegation because Mr. Smith explained in his witness statement that one aspect of the "use" criterion adopted by the Council "concerned whether and to what extent any particular tenant used the trading unit in the Existing Market by opening it for trade".
  94. The comment of Mr. Bray was ultimately significant and possibly decisive in the decision-making process because, as I have explained, Mr. Smith later prepared for the Council members the Council's Table setting out the proposed decisions involving each applicant for space in the New Market, as well as the material relevant to the criteria. This Table was considered by the lead members of the Council before they approved the decision not to offer space to A1 Veg. The Council's Table stated in relation to Unit 34, which was one of the units occupied by A1 Veg in the Existing Market, that it "Does not open for trade. Possible subletting". Mr. Smith explained in relation to A1 Veg and the other three applicants of whom similar comments had been made that "of these four candidates in relation to which this problem was encountered all four were declined". He added that "no candidate in respect of which this problem was identified was accepted".
  95. I infer from this statement that the information given by Mr. Bray was of substantial, if not crucial, significance in ultimately determining that the application by A1 Veg should be rejected, even though A1 Veg was not approached by the Council, by the Tenants' Association or by the Relocation Committee for its comments on Mr. Bray's allegation, on the information in the Council's Table or on any other information supplied to it by the Relocation Committee.
  96. If A1 Veg had been approached for its comments on what was said in the Council's Table about it, its evidence shows that A1 Veg could and would have explained the position, in a way which might well have disabused the Council. My task is to see if the claim for apparent bias is made out in the light of the system adopted by the Council of receiving and acting upon statements about A1 Veg made by a competitor of A1 Veg without at any time consulting A1 Veg or giving it an opportunity to disabuse the Council of its concerns.
  97. It is appropriate now to state a number of legal principles relating to the test for apparent bias and which do not appear to be in dispute. They form the background against which this claim has to be considered. Those undisputed principles are that:-
  98. (a) in order to determine whether there was bias in a case where actual bias is not alleged "the question is whether the fair-minded and informed observer, having considered the facts would conclude that there was a real possibility that the Tribunal was biased" (per Lord Hope of Craighead in Porter v. Magill [2002] 2 AC 357 at 494 [103]). It follows that this exercise entails consideration of all the relevant facts as "the court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased" (ibid [104]).
    (b) "Public perception of a possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v. Johnson [2000] 200 CLR 488, 509 at paragraph 53 by Kirby J when he stated that "a reasonable member of the public is neither complacent nor unduly sensitive or suspicious"" (per Lord Steyn in Lawal v. Northern Spirit Limited [2003] ICR 856, 862 [14]).
    (c) in ascertaining whether there is a case of unconscious bias, the courts must look at the matter by examining other similar analogous situation. "One does not come to the issue with a clean slate on the contrary, the issue of unconscious bias has cropped up in various contexts which may arguably throw light on the problem" (per Lord Steyn in Lawal v. Northern Spirit Limited (supra), 862 [15]).
    (d) the approach of the court is that "one starts by identifying the circumstances which are said to give rise to bias .. [a court] must concentrate on a systematic challenge and apply a principled approach to the facts on which it is called to rule" (per Lord Steyn in Lawal v. Northern Spirit Limited (supra) 864-5 [20]).

    Three Preliminary Points

  99. Before embarking on the task of deciding whether the complaint of apparent bias succeeds, it is necessary to consider first whether Mr. Bray's assertions in his witness statement that he was not biased and was acting fairly are of any relevance. Lord Hope of Craighead explained in Porter v. Magill (supra) that "looking at the matter from the standpoint of a fair-minded and informed observer, protestation [made by the person who was alleged to have been biased that he was not biased] are unlikely to be helpful" (at page 495 [104]). It follows that I should disregard Mr. Bray's protestations in determining the issue before me and that I should proceed to apply the tests to which I have referred.
  100. Second, by the same token, I should stress that the allegation in this case is not whether anybody was actually biased, but whether there was an appearance of bias. So nothing that I will say will be or should be regarded in any way as any criticism of the Tenants' Association or of the Trading Members of the Relocation Committee. The courts have developed the doctrine of apparent bias in order to preserve the integrity of the selection process.
  101. Third, I bear in mind that my approach must be, as Lord Steyn explained in the passage which I have already set out, that any court when faced with the present kind of challenge "starts by identifying the circumstances which give rise to bias" (per Lord Steyn in Lawal v. Northern Spirit Limited (supra) [20]). In this case, the circumstances which would give rise to apparent bias are first, that A1 Veg was a trade competitor in the same section of the wholesale fruit and vegetable market as the Trading Members of the Relocation Committee. The second feature was that these Trading Members of the Relocation Committee were competing with A1 Veg for units in the New Market. Either of these factors could give rise to a claim for apparent bias.
  102. I am unable to accept the contention of Mr. Bray in his witness statement that members of the Relocation Committee welcomed A1 Veg's competition in the market. In truth, A1 Veg's presence in the New Market would or would be regarded by the fair-minded observer as reducing its competitors' share of the market or that it would make its competitors reduce its prices. Not only is that commercial sense but there is clear evidence that A1 Veg is a very substantial and highly respected trader, which does a great deal of business and has an annual turnover of about £8 million so that its competitors would obviously benefit from its absence from the New Market.
  103. Discussion of apparent bias in relation to A1 Veg

  104. In the light of the authorities, I must now stand back and consider whether the fair-minded and informed observer, who, in the light of the authorities to which I have referred, is neither complacent nor unduly sensitive nor suspicious, would, having considered the facts of this case, conclude that there was a real possibility that the Council was biased. I have concluded that such a fair-minded observer would be satisfied that there was a real possibility that the Council was biased in handling A1 Veg's application for the following reasons, which individually or collectively compel me to reach that decision.
  105. Those reasons, which I do not place in any order of importance, are that:-
  106. (a) the sources of important information to the Council, which was the decision-maker in this case, concerning A1 Veg's application for a unit in the New Market, were some members of the Relocation Committee, who were people (i) whose businesses of acting as wholesalers of European fruit and vegetables competed with those of A1 Veg and (ii) who were also competing with A1 Veg for units in the New Market;
    (b) the fair-minded observer would have been concerned because the best interests of the business of the supplier of the information (namely the members of the Relocation Committee) would not be or might not be to have A1 Veg competing with them in the New Market;
    (c) the reason for (b) is that the fair-minded observer would have been concerned that as A1 Veg had a very substantial business, its presence in the New Market might well reduce either the volume of sales of the Trading Members of the Relocation Committee or the prices that they could charge; indeed, it might have both consequences;
    (d) A1 Veg did not have and would not have had any opportunity of disabusing the Council of the truth of that representation. Thus the Council would not be able to consider A1 Veg's comments on or criticisms of the information supplied about it by one of its competitors;
    (e) so, the information so provided about A1 Veg by the Trading Members of the Relocation Committee was likely to be and was in effect accepted by the Council and was likely to influence the decisions taken by the Council on A1 Veg's application;
    (f) there was intense competition for units in the New Market and any detrimental comment from the Trading Members of the Relocation Committee is likely to have been of decisive or of substantial importance;
    (g) there was a need for even-handedness by the Council so as to ensure that A1 Veg was given an opportunity to answer criticisms made of it to the Council by the Trading Members of the Relocation Committee;
    (h) no cogent evidence was adduced to justify the failure of the Council to obtain the comments of A1 Veg on information made about it to the Council by the Trading Members of the Relocation Committee;
    (i) the Trading Members of the Relocation Committee would be and were consulted on the final decision that would be taken on A1 Veg's application but because they competed with A1 Veg for business and for units, they would have had little incentive to put forward positive factors supporting A1 Veg's application.

  107. In addition, Mr. Brown reminded me that Lord Goff of Chievely explained in relation to an allegation of apparent bias against a Magistrates Court Clerk that "it must be shown that by reason of participating in the decision-making process, there was a real likelihood that he would impose his influence on the justices" (R v. Gough [1993] AC 646, 664C). In this case, the Trading Members of the Relocation Committee did participate in the decision-making process as they supplied a great deal of information to the Council and a substantial part of it was accepted. This information actually influenced the decision on allocation of units as is shown by the similarities between the notes of the comments of the Relocation Committee and what appeared in the Council's Table. Thus, also on this test, apparent bias is made out.
  108. Therefore, in essence the Council as the decision-maker was at fault in not ensuring that A1 Veg was given an opportunity to comment on the material supplied to it by the Trading Members of the Relocation Committee of who were competing with A1 Veg not only for space in the New Market but also for business generally. My finding of apparent bias will be of no assistance to A1 Veg if, as Mr. Fordham contends is the case, there has been a waiver or surrender by A1 Veg of its claim of bias, which is the issue to which I now turn.
  109. Waiver or Surrender of Claim for Bias by A1 Veg

  110. Miss. Carss-Frisk contends that the waiver or surrender of the right to raise an allegation of bias should not lightly be inferred while Mr. Fordham contends that the waiver or surrender has been made out in this case. Waiver, or election, requires that the person said to have waived or elected "has acted freely and in full knowledge of the facts" (per Lord Browne-Wilkinson in Ex p Pinochet (No 2) [2000] 1 AC 199 at p 137b-d). Lord Bingham of Cornhill CJ explained in Locabail (UK) Limited v. Bayfield Properties [2000] QB 431 that any waiver of bias "must be clear and unequivocal" (15]).
  111. A1 Veg knew from the 6 December 2000 letter that although the Council would "ultimately" make the decision concerning the allocation of units, this would be done "in conjunction" with the Tenants' Association. To my mind, this statement did not show that the Tenants' Association would make statements about A1 Veg, which could or would be of substantial or crucial importance without A1 Veg then being given the right to comment on the truth of such statements. I have studied with care the communications that A1 Veg would have received from and via the Council and the Tenants' Association and I have concluded that A1 Veg did not know that representations adverse to its interests would be made to the Council by members of the Tenants' Association without an opportunity being given to it to comment on those representations until after the decision had been made.
  112. Thus, A1 Veg was in ignorance of the fact that its competitors on the Relocation Committee could and would make statements about it, which it would not have the opportunity to comment on or to rebut. In those circumstances, A1 Veg did not surrender or waive its right for apparent bias. In the words of Lord Browne-Wilkinson, which I have quoted, A1 Veg did not have "full knowledge" of the facts at any time prior to receiving the decision letter or probably prior to receiving the evidence adduced in the present proceedings from the Council and the Tenants' Association. An additional and an important reason why the waiver or surrender claim fails is that, in Lord Bingham's words, there was no "clear and unequivocal" waiver. Thus, A1 Veg succeeds in its claim based on apparent bias.
  113. The position of the Agnello Claimants

  114. The Agnello claimants carry on a variety of different businesses in the Existing Market. Unlike A1 Veg, most of them are not involved in the wholesale business of European fruit and vegetables. To that extent, the Trading Members of the Relocation Committee were not trading competitors of those claimants. The Trading Members were, however, tenants in the Existing Market and applicants for units in the New Market, who therefore had a direct pecuniary and personal interest in securing tenancies for themselves and that might well have meant excluding other competitors for tenancies from the New Market, such as the Agnello claimants.
  115. In my view, the fair-minded observer would regard this fact as sufficient to give an appearance of bias not only because both of the possible conflicts of interest which I have just described, but also because before the decisions on the Agnello claimants were taken, the Agnello claimants first were not told in advance about the fact that some information had been passed to the Council by those Trading Members of the Relocation Committee, second they did not know what these members had actually said about them and third, because they had not been given an opportunity to comment on this information. This again is a case of the decision-makers listening to people with personal interests in the outcome of all the applications, but not then asking those who had been the subject of comment by the Trading Members for their own comments on this information. A further significant factor is that subsequently the ultimate decisions on who would obtain units were taken after consultation with a party interested in the outcome of the application.
  116. This means that the Agnello claimants have also satisfied the test of apparent bias. Indeed, all the points set out in paragraph 84 above apply save with the removal of any reference to trade competitors providing information. The waiver argument fails for the same reason as it did in the case of A1 Veg. Thus, the Agnello claimants' claim based on apparent bias also succeeds, but I must stress that I am not finding that there was any actual bias or in any way criticising the Relocation Committee or the Tenants' Association. Incidentally, if I had concluded that I should quash the decision in respect of A1 Veg, it would be difficult to see why the other decisions would not have to be quashed as the entire allocation of units in the New Market would have to be reconsidered.
  117. VII THE PROCEDURAL FAIRNESS AND NATURAL JUSTICE ISSUES

    Introduction

  118. Miss. Carss-Frisk contends that the Council's decision-making process was conspicuously unfair as A1 Veg were never consulted about the application of the selection criteria to it, nor were they given any opportunity to make representations about any concerns that the Council may have had about it. This, she says, is significant because the decision that the Council reached on the allocation of units was of great importance to A1 Veg because first the future of its business were at stake and second it had been granted leases which (in the absence of any exercise of the break clause) enabled it to trade in the Existing Market until March 2008. Mr. Brown makes similar submissions in respect of the Agnello claimants relying on a breach of natural justice. The Council, according to the claimants' counsel, owed them a duty of procedural fairness in reaching their decision on the allocation of units in the New Market. I did not understand Mr. Fordham to argue to the contrary, but in any event, I am satisfied that such a duty exists. The issue to be determined is the extent of the duty and whether the Council has complied with it.
  119. In support of her submission, Miss. Carss-Frisk points out that in R v Wear Valley District Council, ex parte Binks [1985] 2 All ER 699 at pp 702-704, it was held that rules of natural justice were applicable to a decision to revoke a street trading licence. She also contends that R v Enfield London Borough Council, ex parte T F Unwin (Roydon) Limited ((1989) 1 Admin LR 50 at pp 62-64), established the existence of a duty of fairness in relation to a decision to remove a name from a list of approved contractors. I will consider the different allegations of procedural unfairness and breaches of natural justice in turn.
  120. Opportunity to disabuse decision-maker

  121. A central part of the claimants' case is that the Council's duty of fairness included a duty on the part of the Council to provide each claimant with a reasonable opportunity to contradict first what was being said against it and second any information on which it was to be assessed. This entailed, according to the claimants, a duty of the Council to provide information to the claimants as to any concerns that the Council might have had (see R v Home Secretary, ex p Fayed [1997] 1 All ER 228 at pp 237-238). The claimants contend the fact that their applications for units in the New Market were made during a competitive process does not prevent the duty of fairness from arising (R v. National Lottery Commission, ex p Camelot Group plc [2001] EMLR 43, at paras 57-60). This duty would have entailed permitting a particular applicant commenting on adverse comments relating to its application received by the Council as decision-maker.
  122. Mr. Brown contends that natural justice dictated that an individual who would be the subject of any decision should be given sufficient information about the evidence upon which the decision-maker intends to rely so that he would then have a meaningful opportunity to controvert it or to comment upon it (see, for example, Ceylon University v. Fernando [1960] 1 WLR 223, 224). He says that in the present case, this meant that the applicants should not have been merely told what the criteria were but also they should have been informed of the evidence on which the Council was proposing to rely. He fortifies that point by stressing the significance of these decisions for the Agnello claimants, as the success of their businesses in which they had invested depended on their ability to trade from the New Market. He points out that many of the claimants are long-standing tenants, who had operated in the Existing Market or its predecessor market for as long as 20 years.
  123. In answer, Mr. Fordham contends that it is a matter of crucial importance in considering this complaint that the decision taken in this case involved a comparative evaluation of competing applicants. He points out that while the cases relied upon by Miss. Carss-Frisk entailed consideration of the different issues of whether the applicant failed to comply with or no longer complied with a qualification, whether it be for a nationality application as in Fayed's case, a street licence as in Binks' case or to be included in an approved list of contractors as in Unwin's case.
  124. Mr. Fordham submits that in the case of compulsory competitive tendering, it is settled law that no duty arises to raise adverse impressions with an applicant so as to give that applicant an opportunity to disabuse the selector. He relies on the decision in R v. Bridgend County Council ex parte Jones (1 October 1999 – unreported), in which an unsuccessful competitive tender by a previous operator of bus services failed in its judicial review claim alleging procedural unfairness based on a failure on the part of the selector to give the claimants in that case an opportunity to disabuse the selector of a particular factor. Mr. Fordham says that the present case is stronger than that of Jones because unlike the position in the case of competitive tendering operating in that case, there was no mandatory statutory duty imposed on the Council, even to undertake a competition inviting competing applicants. It is interesting that the criticisms in Jones' case did not emanate, as they do here, from a competitor but from a senior official of the Council. In any event, Kay J (as he then was) in Jones was not seeking to lay down any principle of general application and his decision was a response to the particular facts in that case.
  125. Mr. Fordham attaches importance to the fact that in the context of a competition with the comparative evaluation of applicants, the advantage and inevitable consequence of having stated criteria is that they alert the candidates' attention to the areas which will be investigated by the decision-maker. This, he says, enables applicants, if they wish, to consider their strengths and weaknesses in those areas and then to make representations or to provide information.
  126. The Council stressed that the tenants knew when the decisions concerning the allocation of units in the New Market were imminent, but even then no tenant ever asked that there should be disclosure of any adverse impressions. He says that there are obvious dangers in seeking to approach a case such as the present from the point of view of what, with hindsight, the claimants now say should actually have been done by the Council. Mr. Fordham points out that the tenants did not have any legitimate expectation that they would have an opportunity to answer any allegations made against it. In summary, his case is that the individual applicants could have had no higher expectation than to have their circumstances considered by the Council in the light of the chosen criteria with the consequence that now they cannot complain of unfairness. This is said to be an especially potent point because, whether through over-confidence or otherwise, the claimants chose not to take the opportunity to investigate their position against the criteria and to make representations or to provide information; but instead all the claimants, according to Mr. Fordham, merely sat back and without any complaint they allowed the Council to carry out its investigations of the circumstances of tenants against the yardstick of the criteria and to make its decision in conjunction with the Association.
  127. In answer to Mr. Fordham's point that no general duty to disclose adverse impressions arises where a decision-maker is engaging in the comparative evaluation of competing applicants, Mr. Brown says that it is necessary to determine why generally such a duty has been held not to arise in cases of comparative evaluation. In R (Asha Foundation) v. The Millennium Commission [2003] EWCA Civ 88, Lord Woolf CJ giving the judgment of the Court of Appeal indicated that the reason why the requirements on this point are different in competition cases from other cases was the practical difficulty involved in disclosing evaluative evidence comparing each of the candidates; he explained, with my italicised emphasis added, that for the decision-maker to disclose:-
  128. "Each Commissioner's view in relation to each of the applications and to provide background material to Asha … would be an undue burden upon any Commission. It would make their task impossible. It certainly would be impractical as a matter of good administration" [29].

    Discussion

  129. It is of great importance to separate two distinct and discrete stages in the comparative evaluation process. Stage one is the determination of the factual basis on which the assessment of each applicant will be based, while stage two is the subsequent comparative assessment and comparative evaluation. I will use this terminology in this judgment. The present claims of unfairness concern the first stage and, in particular, the factual inquiry into alleged weaknesses of certain applicants while Asha related to the second stage, which is a complex comparative evaluations exercise and this explains Lord Woolf's comments in the preceding paragraph. Thus, I cannot accept Mr. Fordham's contention that Asha provides the solution on this issue as his submissions fail to appreciate the differences between the two stages.
  130. In order to determine whether an applicant in a comparative evaluation exercise, is entitled to be given an opportunity to comment on material on which the Council intended to rely relating to him during the evaluation process at stage one, it is necessary to take into account all the relevant circumstances and I will now mention, some of those which have been raised on these applications. I start with those which suggest that the applicant should have an opportunity at the end of stage one to rebut or to comment on information relating to him in the decision-maker's hands. First, the potential potency of the allegation made to the decision-maker without the subject-matter being aware of it and second the significance of the decision in the evaluation process to an applicant's ability to earn his living are two important points in favour of giving the claimant an opportunity to comment on material obtained in stage one that will influence the decision, especially if it is adverse to him. Indeed, public law has always attached great significance to the special need for principles of natural justice to be applied when a person's livelihood is at stake (see for example R v. Wear Valley District Council, ex parte Binks [1985] 2 All ER 699, 702-703 per Taylor J).
  131. Third, if the source of their information supplied to the decision-maker might have an interest adverse to the applicant, that could also be important as indicating why the person affected should be asked to comment on this information. On the other hand, the administrative inconvenience of giving information is also important because in Asha, the Court of Appeal attached substantial significance to it. Indeed, if very substantial administrative difficulties would be caused by giving an opportunity to an applicant to comment on statements made at stage one, that might suggest that such an opportunity to comment should not be granted and this factor might in some circumstances perhaps "trump" the other factors in favour of giving the applicant such an opportunity. All these factors and any other relevant factors have to be balanced against each other. I will now conduct that exercise in the case of the claimants.
  132. Starting with the case of A1 Veg, the Council knew or must have appreciated that the decisions to refuse it space in the New Market would seriously affect its ability to trade as the Existing Market is the place to which their customers for fruit and vegetables go and because the New Market is the place that they will wish to attend when it opens. The Council knew of the crucial importance in the decision-making process in stage two of information in its hands relating to A1 Veg, on which A1 Veg had not had an opportunity to comment. Pausing at this stage, these factors alone would suggest, in the absence of countervailing factors, a need for the applicant to be given an opportunity to comment on the information which was to be considered at the second stage. There is an important additional factor as the Council ought reasonably to have known for the reasons, which I explained when I considered the bias allegation and that is the possible financial interest of the Trading Members of the Relocation Committee in the result of A1 Veg's application as they were competitiors of A1 Veg for trade and for space in the New Market.
  133. In those circumstances, the Council knew or ought to have known that when it was making its decision, that it was relying on some information communicated to it by people who would or might have an interest of their own which would be contrary to that of A1 Veg. This is another point of importance which indicates that the applicants should have been asked by the Council to comment on information in its possession relating to that applicant, and in particular the particularly sensitive material which emanated from the Relocation Committee.
  134. Each of those factors suggest that in the absence of countervailing factors, the Council ought to have given A1 Veg an opportunity to comment on the information in its possession concerning A1 Veg before it made its decision. I stress that even if the information on which the Council was to make its decision had come from a disinterested party, A1 Veg ought, subject to any contrary factor, to have been given to the opportunity to comment on it first because it was of its very substantial importance in determining A1 Veg's application and second, because it affected A1 Veg's livelihood.
  135. I must now consider Mr. Fordham's contention that there is a countervailing factor which trumps all others and that is the administrative inconvenience of asking A1 Veg for its views, which means that it was not necessary to give A1 Veg an opportunity to comment on the material in the Council's possession at the end of stage one relevant to A1 Veg's application.
  136. Administrative inconvenience could be important at the first stage if giving each of the claimants an opportunity to comment on the information in its possession would be unfairly onerous for the Council. That issue requires consideration first of whether it would have been possible in the light of any time restraints in the evaluation timetable to have given the claimants an opportunity to comment on the information that it had received about A1 Veg, or whether in Lord Woolf's words in Asha, it "would be impractical as a matter of good administration".
  137. In that connection, the chronology is important and I need to repeat that the Council had prepared its list of those who were to be given and those who were not to be allocated units in the New Market in sufficient time to obtain the Tenants' Association's concurrence in its letter of 16 January 2003. On 11 March 2003, the Executive Committee of the Council considered and accepted the proposals that the Head of Project Coordination and Strategic Property should make the decision in consultation with the lead members.
  138. It is interesting that the Council said in its letter to A1 Veg of 14 July 2003 that the relocation process with the Council and the Tenants' Association "took approximately two years". The decision to approve the suggested list setting out the result of the selection process was not made by the Council until 1 May 2003, which was more than three months after the Tenants' Association had concurred with the list. Then after that, the actual decisions were not communicated to the tenants until they had received the letters of 9 July 2003, which was a further two months later. The Council were content to proceed at a leisurely rate, probably because they considered for some good reason that this was not an urgent project. In the light of that background, I cannot see how good administration would have been impaired because of time pressure by giving A1 Veg in late 2002 or in early 2003 an opportunity to controvert or to comment upon this information relating to it and possessed by the Council at stage one before a final decision was made on the application.
  139. The second matter to be considered in deciding if it was impractical for good administration that the claimant could or should have been given an opportunity at the end of stage one to consider information in the Council's hand was to ascertain what was required of the Council in order to obtain the comments of each applicant. All that would have been required by the Council was a short letter to each applicant setting out any information received or possessed by the Council about it relating to the three criteria and then asking each applicant for comments or rebutting evidence within a short period. Thereafter, the stage two consideration of the claims of the applicants for space in the light of the answers received would not have been unduly time-consuming.
  140. In A1 Veg's case, the evidence that the Council would then have received from that applicant would have been very relevant and perhaps persuasive. I repeat that this case is very different from Asha as what is being sought here is the opportunity for each claimant merely to comment on the information obtained in relation to it at stage one while in Asha, the disappointed applicant was seeking much more as it wanted "each Commissioner's view in relation to each of the applications and to provide background material to Asha". That was an infinitely more demanding task for the decision-maker than what is being sought by the Council from each applicant. Thus, subject to the issue of waiver and surrender I consider that A1 Veg should have been given an opportunity to comment at the end of stage one on the information that the Council had in its possession relevant to A1 Veg's application for a tenancy in the New Market. I do not consider that A1 Veg waived or surrendered its rights to complain for the same reasons that waiver and surrender does not assist the Council on the bias issue. I conclude that it is therefore necessary to quash the decision affecting A1 Veg.
  141. I could, and would, have reached the same decision that A1 Veg's complaint about the procedural unfairness is justified for two other reasons. First, there is a need for a decision-maker to be even-handed between applicants in a competitive process (see R v. National Lottery Commission ex parte Camelot Group Plc [2001] EMLR 43, 72 [72]). It was not even-handed for the Council merely to listen to the views of one group of applicants (namely the Trading Members of the Relocation Committee) but not to give those criticised or commented upon the chance to rebut or to challenge those views. Second, there is much to suggest that the real decision of the Council was that A1 Veg was either ineligible or was to be excluded because of its illegal subletting and it is settled law that in those circumstances the decision-maker should afford the person criticised a chance to answer those concerns (see for example R v. Enfield London Borough ex parte T.F. Unwin (Royden) Limited (1989) 1 Admin L.R. 50 at 62E, 63E and 64B). Either of these routes would also have led to the conclusion that the decision concerning A1 Veg has to be quashed.
  142. Turning to the Agnello claimants, Mr. Brown pointed out that he did not have enough time to obtain instructions from his 15 clients and to put in witness statements relating to how in each case they could and would have rebutted the information on which the Council made its decision on their application. It is true that in the relatively short period between the receipt of Mr. Smith's witness statement and the commencement of this hearing, he also had to and did draft an admirable skeleton argument in advance of the hearing. I readily accept that reason. He did, however point out correctly that in the case of a number of the Agnello claimants, information appears to have been given by the Relocation Committee or held by the Council about many of his claimants if not all of them which they could and would have been able to rebut if they had been asked about it.
  143. More importantly, each of the Agnello claimants is subject to adverse comments in the Council's Table. Mr. Agnello himself would appear to have scored better than his successful competitor, the Market Tavern on the criteria used by the Council; he was however not offered units in the New Market because of negative comments that had been made about him on which he had not been consulted. Mr. Brown submitted that in respect of the other Agnello claimants, there were many matters on which they should have been given the chance to comment and had this been done, it is entirely possible that different decisions would have been made in respect of their applications for units in the New Market. He said that this constitutes a prima facie breach of natural justice which is all that he needed to show and that it was then for the Council to demonstrate that if the claimants had been consulted and asked for their views on the material in the Council's possession, it would have made no difference. I consider those submissions to be well-founded and that the Council have not shown that if the Agnello claimants had been consulted for their views on the material in the possession of the Council, their responses would have had no affect on the eventual outcome.
  144. I conclude that for the same three reasons that I gave in respect of A1 Veg that the decision must also be quashed in respect of the Agnello claimants because the Council did not give the claimants the opportunity to comment on information used in their applications. In those circumstances, I can deal with the other complaints briefly as they will not affect the outcome of this application.
  145. Criticisms of the Criteria set by the Council

  146. Mr. Brown contends that because a fundamental ingredient of the rules of natural justice is the right of a party to know the case it has to meet, it follows that the relevant issues for consideration by each applicant had to be explained to that party, with sufficient certainty or clarity for the party concerned to know what evidence was needed to deal with the criteria. He contends that none of the three criteria applied by the Council in its 6 December 2000 letter was defined with sufficient clarity or precision so as to enable the claimants to be able to make any meaningful submissions on them. It is said that the first criterion of "use" does not disclose which uses would be preferred and why, while the second criterion of "financial standing" also was insufficiently clear or precise. A similar complaint is also made about the third criterion of the "rent payment record" because it is said that it did not disclose what the Council considered a "good" payment record.
  147. In answer, Mr. Fordham points to five factors of substantial importance, which cumulatively answer this complaint. First, he says that the Tenants' Association agreed with these criteria. Second, he stresses that although they knew the criteria, none of the claimants or any of the tenants appeared to have complained about them from December 2000 until after the decision two and a half years later. Third, he states that the Hounslow Racial Equality Unit was also content with the criteria. Fourth, he reminds me that there were numerous Tenants' Association meetings at which these complaints could have been, but were not, raised. Fifth, he says that the claimants had from at least 6 December 2000 until mid-2003 not merely to make any case that they wished to, but also to ask for further details if they were uncertain as to what the criteria meant.
  148. I add that I do not have any difficulty in understanding the criteria. In my view, the claimants cannot go through the entire process of selecting tenants for the New Market lasting as it did for two and a half years and then later complain about its criteria only when the selection process does not produce the result that it wished. In those circumstances, there does not appear to be any public law ground for impugning the choice of the criteria.
  149. Turning to the contention that the claimants were offered no opportunity to state how they satisfied the three criteria set out in the 6 December 2000 letter, it is correct that the Tenants' Association letter of 25 May 2001 only asked for the most recent set of accounts. Nevertheless, I do not understand why the Council should have been under any duty to specifically ask for any further information when they had already stated the criteria in the 6 December 2000 letter. It must have been obvious to all the tenants in the Existing Market what information would be considered relevant by the Council although it did not know what information was going to be relied upon by the Council. In other words, the applicants knew how they could advance their case but they were ignorant of the relevance and perhaps decisive information gathered by the Council which they could not answer. In any event, even if the claimants had been in any doubt about this, Mr. Smith, who had an office in the Existing Market, could easily have been approached by any applicant on any matter including any uncertainty on what steps the tenant should take to further his claim. In addition, any claimant could have asked the Tenants' Association for guidance.
  150. VII THE WEDNESBURY AND IRRATIONALITY ISSUE

  151. Miss. Carss-Frisk contends that the Council failed to take into account relevant considerations and in any event it ultimately made a decision, which was Wednesbury unreasonable or irrational in refusing to allocate space in the New Market to A1 Veg, bearing in mind first, that it was one of the biggest and most successful traders in the market and second that it amply satisfied the criteria of use, financial standing and rent payment record. As I have explained, the Agnello claimants do not contend that the decisions affecting them were Wednesbury unreasonable.
  152. Miss. Carss-Frisk puts forward a number of reasons why she contends that the decision not to make an offer to A1 Veg was Wednesbury unreasonable or irrational. Bearing in mind that I have already concluded that A1 Veg's claim will succeed on other grounds, nothing would be gained by giving a decision on this claim, especially as the ultimate decision will have to be retaken as a result of my decision based, I suspect, on different evidence.
  153. VIII THE INADEQUATE REASONS ISSUE

  154. Miss. Carss-Frisk and Mr. Brown both contend that in this particular case, the Council had a duty to provide reasons for its decisions not to grant to the claimants units in the New Market but that they did not comply with this duty. In support of this submission, they point to the very serious economic loss that the claimants will suffer if they cannot obtain spaces in the New Market with the consequence that in many cases they will lose their livelihoods. In those circumstances, it is said that a duty to give reasons fell on the Council because the economic loss and loss of livelihood that is likely to be suffered by the claimants constitute interests, which are so highly regarded by law.
  155. Miss. Carss-Frisk fortifies that argument by submitting that reasons were called for in relation to the decision under challenge because the Council's decision was "aberrant in the light of [their] financial standing, use of the market and rent payment record". She also points out that the Council has repeatedly declined to give any reasons to A1 Veg. A1 Veg's case is that although Mr. Smith orally indicated that the decision was based on A1 Veg's rent record, the documents exhibited by Mr. Smith in his witness statement show that he concealed the fact that A1 Veg was considered to have failed on the "use" criteria because of allegations that it was never given an opportunity to meet.
  156. Mr. Fordham contends that this is not a case where the law would impose a duty on the Council to give reasons beyond explaining, as the Council did in this case, that it was not possible to include a particular tenant after applying the criteria in its consideration of all the tenants and their businesses. His basic submission is that in public law there is no general duty to give reasons, but in this case, there are two strong factors militating against the need to give reasons. Those factors are first, that the Council was engaged in an exercise of judgment and appreciation. The second factor was that the Council was evaluating the comparative methods of competing applicants. As the Council will have to reconsider the applications for units in the New Market, it might be helpful if I explain my views on this issue.
  157. The claimants and the Council both contend that their submissions on this issue are supported by the recent decision of the Court of Appeal in R (Asha Foundations) v. Millennium Foundation (supra) and so it becomes necessary to consider that case in more detail.
  158. In that case, the claimant, together with the other 11 applicants had applied to the Millennium Commission for a grant, but the total amount sought in all the applications was substantially greater than the amount that was available for allocation. The Millennium Commission decided to make grants to ten of the applicants, but the claimant was not successful because Asha's application "was less attractive than others before them". The Commission later indicated that although Asha was considered suitable for a grant, the Commission had formed the view as to its comparative merits of each eligible project after taking into account the Commission's key criteria, having regard to the geographical and cultural equity of grant distribution.
  159. The claimants in that case appealed to the Court of Appeal on the primary ground that the Millennium Corporation had failed to give legally adequate reasons for its decision because it had failed to comply with its obligation to say why it had preferred the other applications over that of Asha. The Court of Appeal rejected that submission holding that the Millennium Commission had given adequate reasons for its decision. Lord Woolf CJ said when there was a duty to give detailed reasons depends on the circumstances on each case "as the circumstances are always important".
  160. The Lord Chief Justice explained his approach to giving reasons in the case where an evaluation is called for by stating that:-
  161. "28. One of the issues that the Commission had to decide in this case was the question of eligibility. If the Commission had concluded that the application fell down because it did not meet the eligibility criteria, then in my judgment it would be necessary for the Commission to point out in their decision why the application did not comply with the eligibility criteria. However, when considering the question of whether or not to grant an application which is eligible, differing situations can exist. There may be situations where the Commission conclude: "We reject the application, although it is eligible, on a particular ground". If that is the basis for the decision, then the Commission must say what the particular ground is. Certainly this is the case if they choose to make a promise, as was made in this case.
    29. But there are other kinds of decisions of the Commission where a realistic assessment of what is appropriate dictates a different conclusion. When the Commission is engaged in assessing the qualities of the different applications which were before them in competition with each other, the difficulties which would be involved in giving detailed reasons become clear. First, the preference for a particular application may not be the same in the case of each commissioner. Secondly, in order to evaluate any reasons that are given for preferring one application to another, the full nature and detail of both applicants has to be known. If the Commission were to be required to do what [counsel for Asha] submits was their obligation here, the Commission would have had to set out in detail each commissioner's views in relation to each of the applications and to provide the background material to Asha so that they could assess whether those conclusions were appropriate. This would be an undue burden upon any commission. It would make their task almost impossible. It certainly would be in my judgment impracticable as a matter of good administration".
  162. In this case, it has not been contended that any of the claimants in this case were considered ineligible for units in the New Market and I will assume that to be correct. The standard form letters of 9 July 2003 informing each of the claimants that had been unsuccessful explained that the Council had given "due consideration to their tenants and their business which on application of the strict criteria" it had decided to offer accommodation but it had not been possible to include the claimants in that category. I consider that that statement complies with the obligation, as described in paragraph 29 of Asha, bearing in mind that in this case, the eligibility of the claimants was not in issue but in essence, the decision of the Council was that other candidates complied with the criterion to a greater degree than the claimant.
  163. There are two additional difficulties in this case about the Council giving detailed reasons. First, the actual decision was, I have explained, taken by Mr. Dawson and the two Lead Councillors. It may well be that each of them merely adopted the view of Mr. Smith and his team, but it is their reasons, which have to be considered and as Lord Woolf explained "the preference for a particular application may not be the same in the case of each [selector]" [24].
  164. Second, an additional difficulty is that the reasons would relate to the results of a comparative exercise like that in Asha's case in which "the Commission would have to set out in detail each Commissioner's views in relation to each of the applications and to provide the background material to Asha so that they could assess whether those conclusions were appropriate". A similar position would arise in this case as there were a large number of applications and "the matrix of comparisons between each application would be very large indeed, rendering any attempt to provide reasons both extremely difficult and potentially meaningless": (Andrew Denny – Procedural Fairness in Competitions ([2003]) IR 228 at paragraph 13). For all those reasons, I reject the reasons challenge.
  165. IX CONCLUSION

  166. My conclusion is that although the Council and the Relocation Committee commendably devoted much time, care and energy to the task of selecting tenants for the New Market, they should have gone one step further and they should have sought the views of the tenants in respect of the material obtained about them before making their decisions. The unfortunate fact is that the Council did not give the claimants an opportunity to comment on the information on which it proposed to select tenants. This was an oversight which means that the decisions under challenge have to be quashed.
  167. Turning to the future, I note that in paragraph 137 of his witness statement, Mr. Smith says that if the Court requires the Council to reconsider the allocations then:-
  168. "The Council will explore with the Court issues of practicality and timetable … The Council's position will be it is imperative that any tenants who wishes to have any information or representation taken into account on any reconsidered decision should prepare that information or those representations as a matter of urgency".
  169. I consider this might well be a very sensible way forward and if adopted, it would enable decisions to be taken speedily and hopefully to the satisfaction of all parties.
  170. Once again, I must thank all counsel for the impressive way in which they not only prepared their skeleton arguments but also made clear and helpful submissions to the court. It must be some consolation to those who are not successful that their counsel could not have done more to further their causes, but for the reasons that I have given, I give permission to pursue these applications, which succeed with the result that the decisions must be quashed.
  171. Postscript

  172. I must mention that I have been troubled by three comments made by Mr. Graham Smith of the Council, although they have had no effect on my decision or the reasoning leading to it. First, in his letter to A1 Veg of 18 July 2003, when he said:-
  173. "However, I point out that you should take account of the ramifications of your threat to place the matter in the hands of solicitors as this may prejudice your chances of being offered space in the New Market should such space become available".
  174. Subsequently, on 4 August 2003 referred again to A1 Veg's statement that it might be forced to place the matter in the hands of solicitors and said:-
  175. "I have to say that this was interpreted as a threat by the Borough Solicitors by Messrs. Norton Rose, the Council's external legal advisers and also by myself – I do not follow exactly what you are saying but would hope that you are saying that your sentence was not intended as a threat .. I see little point in continuing this correspondence and would inform you that the Council will not respond to any further letters .."
  176. In that letter, Mr. Smith stated however, that he would be prepared to meet the claimant. A meeting did take place on 8 September 2003 at which Mr. Smith said to Mr. Dhaliwal of A1 Veg, words to the effect that if A1 Veg pursued any legal redress through the courts, this would prejudice its prospects of being granted space in the New Market in the future.
  177. These repeated and worrying threats should never have been made, particularly by a public official to a long-standing tenant who was justifiably very concerned about a decision which would seriously jeopardise its livelihood. With characteristic candour, Mr. Fordham did not seek to justify these comments, but he assured the court that Mr. Smith, who seems to be a careful man, would treat all the claimants fairly and properly in future. Mr. Smith said in his witness statement that no candidate will be prejudiced or favoured because he did or did not take legal proceedings.


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