QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen
On the application of Brenda Page
|- and -
|Darlington Borough Council
Richard Clayton QC (instructed by Darlington Borough Council) for the Defendant
Hearing dates: 18th &19th June 2018
Crown Copyright ©
Mrs Justice Whipple:
"I was glad to attend the meeting last night although had expected that it was arranged to do more substantive work on alternative models. Nevertheless following on I thought it would be helpful to confirm a few points and offer you some help these are set out below :-
- Consultation on the MTFP [Medium Term Financial Plan] finishes at the end of May so just to confirm that no final decisions will be made until Full Council on 29 June 2016.
- I imagine you may have this in hand but obviously prior to the end of May it would be good to see a written response to the consultation which may include such things as :-
- Alternative proposals for the Library service that would deliver similar savings to those being proposed (see below)
In terms of any alternative proposal you will have heard my note of caution last night about timescale, ie the longer the Council waits to achieve its revenue savings, the bigger the gap grows and the more cuts that will need to be identified. So it's not an unwillingness to engage that is driving the timescale, but the very real pressure of the revenue budget.
I'd strongly suggest therefore and I know Paul Wildsmith has also expressed the same view; that the best prospect for an alternative model to be given serious consideration by Council is for it have substance and detail. Such a proposal may not be fully worked up but must give Council significant assurance that it has a chance of delivery. Should this be the case and obviously depending on feedback in respect of all the other budget proposals, Council may be in a position to allow a further short period of time to finalise the proposal.
To help you do this before the end of May, Paul Wildsmith and his team are more than happy to work with you over the next seven weeks to help you develop a proposal. I feel there would be a greater chance of producing a sustainable option if this happened, and in the immediate future if details of the information you might require were forwarded to us then we can get cracking preparing this.
In the meantime if you need any more information or have any more questions, please contact Paul."
i) Option 1, which was to close Cockerton and the mobile library service, close Crown Street and relocate the library to the Dolphin Centre. The Defendant had suggested that savings of around £335,000 pa could be achieved by this plan, but the Business Case suggested that the savings were lower (at around £205,000pa) once various costs were taken into account, including the loss of opportunity and other costs at the Dolphin Centre.
ii) Option 2, which was to close Cocketon and the mobile library but to retain Crown Street as the main library, refurbished to include a café. Once various costs and potential income streams had been taken into account, the Steering Group thought that this option would result in savings which were about £102,000 less than the savings under option 1 and might, once full costings were established, result in savings which were only modestly less than those projected for option 1.
At the moment neither Mike nor me have any time to commit to providing more information as we are tied up with a number of other projects and tight timescales. Depending on the final decision members make at the end of June with regard to the budget if they want to progress your alternative proposal then we will work closely with you. Sorry we cant be more helpful at the moment
"Summary of findings and conclusions
Our detailed findings against each of the key assumptions are included below. In particular we identified three key areas where we felt there was currently insufficient evidence to support the assumed income levels proposed. There are:
- A number of the propositions rely on the use of the same assets and facilities presenting a clear risk of duplication in the assumptions;
- A number of assumptions and ideas are still very embryonic and therefore there is insufficient evidence and research to support the proposals; and
- There are a number of areas, in particular in relation to staffing and incidental expenditure associated with the proposals, where likely additional costs had not been fully considered.
In light of the above we did not feel there was sufficient evidence to support the proposed income levels set out with the business plan."
Grounds of Challenge
Application to amend the Grounds
i) That the Steering Group should have been provided by the Council with a further opportunity to amend the Business Case and/or should have been informed that the Defendant would be prepared to reconsider an amended proposal. A reference was made to paragraphs 120-121 of the witness statement of Paul Wildsmith, for the Defendant. (This is paragraph 66b) of the Reamended Grounds.)
ii) That the Council failed to take into account that the alternative proposal and/or suggestion that the relevant costs savings could be achieved through the operation of the Dolphin Centre by a charitable leisure management company. (This is paragraph 66A.b) of the Reamended Grounds.)
i) I am not satisfied that any good reason has been advanced for the amendments being made so late in the day. To the extent that the amendments respond to witness evidence (for example, to assertions made in the witness statement of Mr Wildsmith), that evidence has been in the Claimant's and the Claimant's legal team's possession for some while now (his witness statement is dated 20 April 2018) and it would have been reasonable to expect an earlier application.
ii) The Defendant would, at least potentially, be prejudiced by these amendments. Although the first (paragraph 66b)) is quite close in its content to other arguments which already form part of this case, still it is a new aspect to the Claimant's case, and as a matter of ordinary procedural fairness, the Defendant is entitled to consider its response and adduce any further evidence it wishes to; it has not had that opportunity and should not be put "on the spot" to answer the allegation. The second (paragraph 66Ab)) raises a wholly new issue and it would plainly prejudice the Defendant to have to address the point without having a full opportunity to consider it and to adduce further evidence if so advised. The fact that the Defendant has, even in the short time available, managed to adduce some evidence setting out some rebuttal of the point is neither here nor there, because that is not a fully considered case in answer, but rather the product of what the Defendant could manage in the time available.
iii) Further, the Claimant has already been given opportunities to clarify its case. King J gave the Claimant permission to amend the grounds. Even with the amended pleading, it has been difficult for the Defendant, and for me, to understand precisely how the Claimant's case is put much time and energy has been spent unnecessarily in that endeavour. King J also ordered the Claimant to provide a response to the Defendant's request for further information, but in her response the Claimant failed to provide the particulars sought (asserting that the claim was sufficiently pleaded already) and referring to various paragraphs of the witness evidence. This was very unhelpful. I consider the request to have been properly made (as did King J, who ordered a response to it) and the response provided to have been wholly inadequate. The Claimant should not be further indulged.
iv) There is no apparent merit in either of the amendments proposed.
a) The first proposed amendment (para 66 b)) relates to an alleged failure to permit the Steering Group an opportunity to amend its proposals during the course of the second consultation. As Mr Wildsmith says, the Steering Group was at liberty, at any time, to make further representations to the Defendant or to seek to amend its Business Case for consideration by the Defendant, and did not as a matter of law need to be told that it could do either thing.
b) The second proposed amendment (para 66A b)) relates to a yet further option which involved the Dolphin Centre being run by a charitable leisure management company. This proposal was different from the Community alternative option involving a CIO, option 3 in the Business Case. Ms McDonald put this further proposal to the councillors in an email dated 28 December 2016. It involved allowing a third party charitable leisure management company to run Crown Street. Ms McDonald had identified a company called "Tees Active", which she said successfully ran leisure centres across the Tees Valley, as a possible target to undertake such a role at the Dolphin Centre. The Steering Group did not investigate it; it was simply put by Ms McDonald to councillors on the basis that the Council might want to investigate further. In fact, although some initial interest was shown by one councillor, no further investigation was put in hand. I fail to see how it can be said that thereby the Council breached its public law obligations (the Claimant's case in relation to this further option is not expanded or explained, anywhere).
"The description "a formative stage" may be apt to describe a number of different situations. A council may only have reached the stage of identifying a number of options when it decided to consult. On the other hand it may wish to consult. In other circumstances it may have formed a provisional view as to the course to be adopted or may "be minded" to take a particular course subject to the outcome of consultations. In each of these cases what the Council is doing is consulting in advance of the decision being consulted about being made. It is, no doubt, right that, if the Council has a preferred option, or has formed a provisional view, those being consulted should be informed of this so as better to focus their responses. The fact that a Council may have come to a provisional view or have a preferred option does not prevent a consultation exercise being conducted in good faith at a stage when the policy is still formative in the sense that no final decision has yet been made. In my judgment, however, it is a difference in kind for it to have made a decision in principle to adopt a policy and, thereafter, to be concerned only with the timing of its implementation and other matters of detail. Whilst a consultation on the timing and manner of implementation may be a proper one on these issues it cannot, in my judgment, be said that such a consultation insofar as it touches upon the question of principle, is conducted at a point at which policy on that issue is at a formative stage."
Legitimate Expectation / Conspicuous Unfairness
"(2) It is not always a condition for a legitimate expectation to arise that there should be a clear, unambiguous and unqualified representation by the public authority (R v Inland Revenue Comrs, Ex p Unilever plc  STC 681, 693-695, per Simon Brown LJ): the test is whether the public authority has acted so unfairly that its conduct amounts to an abuse of power."
"40. I have quoted at some length from these judgments to show how misleading it can be to take out of context a single expression, such as "conspicuous unfairness", and attempt to elevate it into a free-standing principle of law. The decision in Unilever was unremarkable on its unusual facts, but the reasoning reflects the case law as it then stood. Surprisingly, it does not seem to have been strongly argued (as it surely would be today) that a sufficient representation could be implied from the Revenue's consistent practice over 20 years (see eg de Smith para 12-021). It seems clear in any event from the context that Simon Brown LJ was not proposing "conspicuous unfairness" as a definitive test of illegality, any more than his contrast with conduct characterised as "a bit rich" They were simply expressions used to emphasise the extreme nature of the Revenue's conduct, as related to Lord Diplock's test. In modern terms, and with respect to Lord Diplock, "irrationality" as a ground of review can surely hold its own without the underpinning of such elusive and subjective concepts as a judicial "outrage" (whether by reference to logical or moral standards)
41. In summary, procedural unfairness is well-established and well-understood. Substantive unfairness on the other hand or, in Lord Dyson's words at para53, "whether there has been unfairness on the part of the authority having regard to all the circumstances" is not a distinct legal criterion. Nor is it made so by the addition of terms such as "conspicuous" or "abuse of power". Such language adds nothing to the ordinary principles of judicial review, notably in the present context irrationality and legitimate expectation. It is by reference to those principles that cases such as the present must be judged."
i) It was permissible for the Defendant to consult on the single option of moving the library to the Dolphin Centre. It was not necessary to consult on alternatives (see eg R (Morris) v Rhondda Cynon Taf BC  EWHC 1403 at  and see Sardar, cited above).
ii) The point about the savings figure is addressed by Mr Wildsmith in his evidence. The saving from moving the library to the Dolphin Centre and closing Crown Street would have been roughly £300,000 pa. It was not incorrect or misleading to use that figure in the consultation documents. It is also right to say that if Crown Street had remained open, with changes to its operation, it appears to have been common ground that savings of up to £200,000 pa could be achieved. The Steering Group pointed out that the net saving (comparing options 2 and/or 3, the reformed Crown Street operation, with option 1, the relocation of library services to the Dolphin Centre) was in the region of only £100,000 pa or possibly less. I do not accept that the Defendant misrepresented the figures, or that if there was any inaccuracy in the figures relied on, it was in any way material to the consultation. Mr Bowen accepted that this was not his strongest point, and I agree. On any view, money could be saved by moving the library to the Dolphin Centre, and it was reasonable to evaluate the savings, at least in the first instance, by reference to the current cost of library provision.
iii) The meeting on 5 December 2016 was minuted. The meeting ended with the Steering Group requesting the Defendant to indicate a direction of travel for a model which would facilitate the library remaining at Crown Street and seeking the Defendant's cooperation in approaching the HLF and/or DCMS to look for funding support for those options. The Defendant said it needed to review and discuss the outcome of the second consultation and was willing to engage in further discussions. The Amended Grounds assert simply that the Defendant failed to take into account various matters raised at that meeting, but there is no further explanation of the Claimant's case in relation to this meeting and I do not know what unlawfulness is alleged.
Other points not pleaded