Simon Bell wins case concerning procedural exclusivity in judicial review
Simon Bell, instructed by Barney Bose of Buss Murton Law, represented the successful Defendant.
The claim, brought by a former Chair of the Parish Council, sought payment of approximately £9,000 under an oral contract said to arise from a resolution passed at a Parish Council meeting held in March 2023 (at a point in time when the Claimant was still the Chair of the Parish Council). The Claimant contended that the resolution created a binding contractual obligation to reimburse expenses incurred personally in obtaining legal advice. By way of background, that legal advice had been sought by the former Chair, without the prior approval of the Parish Council and paid for personally by her.
Two further resolutions were passed in subsequent Parish Council meetings, the second in April 2023, which led to the suspension of the payment pending an investigation into the Chair by the Monitoring Officer, a suspension to which the Claimant agreed to at the time.
The final resolution was passed in July 2023, rescinding the decision made in March 2023, and refusing to reimburse the Claimant. This was due (on the Defendant’s case) to a failure to provide information sought in respect of the invoices, including copies of the actual advice obtained by the Claimant, and for which the Defendant was being asked to pay retrospectively. This decision was made following the Claimant’s decision not to stand for re-election in May 2023 and the Monitoring Officer’s decision to cease her investigation.
The Claimant’s case was that the March 2023 resolution was a contract, and not an ex gratia payment. In respect of the July 2023 resolution, the Claimant sought to claim that there was no lawful means to vary or rescind an earlier minuted decision of the Parish Council.
The Court failed to deal with an application to strike out the claim made by the Defendant upon filing its response, and as such, the case was listed for a final hearing.
At the hearing, the Defendant set out its preliminary legal point in respect of the claim. This was twofold:
- First, that the resolution was a public law decision concerning the potential exercise of a discretionary power to make an ex gratia payment, and did not give rise to any private law contract; and
- Second, that any challenge to the lawfulness of the final decision to rescind that resolution could only properly be brought by way of judicial review, and not through a private law claim in the County Court.
In written and oral submissions, it was argued that the claim was, in substance, a poorly disguised public law challenge, engaging the principle of procedural exclusivity and the authorities of O’Reilly v Mackman, AG v Dumas, and AG v Isaac. The Court was invited to find that it lacked jurisdiction to determine the lawfulness of the council’s decision-making process within ordinary civil proceedings.
Deputy District Judge Evans accepted the Defendant’s position. The Court held that:
- The resolution from March 2023 did not give rise to a contract; and
- Any complaint about the lawfulness of the Council’s subsequent rescission of that decision was properly a matter for judicial review, not a private law claim.
Simon Bell
Simon Bell is a specialist planning, infrastructure, public, and information law barrister with over 20 years’ experience advising and representing local authorities, developers, infrastructure promoters, landowners, and community groups.
Simon advises and appears in judicial review and public law proceedings involving planning, infrastructure, and local authority decision-making. Simon Bell advises public authorities, developers, and elected members on decision-making lawfulness, procedural fairness, and statutory powers, and represents councillors in connection with conduct complaints and standards investigations.
To instruct Simon Bell, please email clerks@cornerstonebarristers.com and call 020 7242 4986 or 0333 240 0591
