Comninos, R (on the application of) v Bedford Borough Council & Ors

An auditor’s judicial review challenge may be refused under section 31(6) of the Supreme Court Act 1981 where there has been extreme delay and relief would cause substantial hardship, even though the challenge raises an issue of public interest.

Section 111 of the Local Government Act 1972 can, in principle, authorise a local authority to indemnify employees for the costs of litigation, including defamation proceedings, where the expenditure is conducive or incidental to the authority’s employment functions. The law does not require an artificial distinction between offensive and defensive proceedings. The power remains subject to ordinary public law controls, including improper purpose, irrelevant considerations and Wednesbury unreasonableness. A local authority must not use the power to circumvent the rule in Derbyshire County Council v Times Newspapers Ltd.

The claimant was the appointed auditor of Bedford Borough Council. He challenged the Council’s decision to fund and indemnify three officers in defamation proceedings against a former political agent and a local newspaper.

The claim alleged that the Council lacked power to grant the indemnity. The claimant also sought relief despite accepting undue delay and substantial hardship to the officers. He abandoned challenges based on irrelevant considerations and irrationality. The central issues were whether relief should be refused under section 31(6) of the Supreme Court Act 1981 and, if necessary, whether sections 111 and 112 of the Local Government Act 1972 authorised the indemnity.

1. Relief refused for delay. The court considered delay first because it was decisive. Section 31(6) requires an objective assessment of undue delay and the likely substantial hardship caused by relief. The relevant considerations include the claimant’s knowledge, statutory role and the practical consequences of delay. The claimant had been fully informed of the unusual transaction from the outset and could have raised any concern or obtained independent advice earlier. The delay was extreme, and setting aside the decision would expose the officers to very substantial personal and family hardship. The wider public interest did not outweigh that injustice.
2. Power under section 111. Although the issue was academic, the court held that section 111 could in principle support an indemnity for litigation costs where the expenditure was conducive or incidental to the authority’s employment functions, including maintaining staff morale and an efficient administration. There was no principled basis for distinguishing offensive from defensive proceedings. The existence of the power was distinct from the lawfulness of its exercise.
3. Public law limits. The decision remained reviewable for improper purpose, irrelevant considerations and Wednesbury unreasonableness. The policy in Derbyshire County Council v Times Newspapers Ltd could not be circumvented by funding officers to pursue proceedings whose true purpose was to protect the Council’s own reputation. No such improper purpose was alleged or established here. The abandoned relevancy and irrationality grounds therefore provided no basis for relief.
4. The application for judicial review was dismissed. The Audit Commission was ordered to bear its own costs; there was no order as to the Council’s costs; and the claimant was ordered to pay Mr Gough’s costs. Permission to appeal was refused.

First-instance judicial review in the High Court (Administrative Court). Permission to appeal was refused.