Abbey Mine Ltd v Coal Authority & Anor

The content of procedural fairness depends on the character of the decision, its statutory framework and its practical setting. In a competitive process for a commercial licence, fairness generally requires an impartial decision-maker, notice of the substance of concerns about each applicant’s own case, and equal treatment of all applicants. It does not ordinarily require disclosure of rival bids.

A failure to put adverse material to an applicant will not invalidate the decision where that material had no material effect on the outcome. The reach of a public authority’s duty of fairness is a question of principle which an appellate court may reconsider fully.

The Coal Authority received competing applications from Abbey Mine Ltd and Corus UK Ltd for a licence and demise of coal in the Margam area of South Wales. It preferred Corus because its proposal appeared more likely to deliver viable coal production. Following a review hearing, the Authority confirmed that decision.

Dobbs J dismissed Abbey Mine’s application for judicial review. Abbey Mine appealed, principally contending that fairness required disclosure of Corus’s application and proper notice of concerns about the record of Abbey Mine’s chairman in previous mining ventures.

The central questions were what procedural fairness required in a competitive commercial licensing process and whether any failure to disclose the Authority’s concerns had caused material unfairness.

1. Appeal dismissed. Laws LJ, with whom Rix and Dyson LJJ agreed, held that the Authority was not required to disclose Corus’s application to Abbey Mine. Procedural fairness is context-sensitive. Its content must accommodate the statutory purpose and practical setting in which the public authority acts.
2. The reach of a public authority’s duty of fairness is determined by the court when setting standards for public decision-making. It is therefore a question of principle which the Court of Appeal may reconsider fully. The appellate restraint applicable to some mixed questions of law and fact did not govern this public law issue.
3. In a competition for a commercial licence, fairness requires impartiality and two broad safeguards: the applicant must be told the substance of the decision-maker’s concerns about its own case, and every applicant must receive equal treatment. An applicant is not ordinarily entitled to the details of a rival’s bid. Requiring all competing bids to be disclosed, challenged and answered could frustrate the efficient discharge of statutory functions in the public interest.
4. The distinction drawn in Agnello between determining the factual basis of each application and undertaking the subsequent comparative evaluation could be useful in a particular case, but could not serve as a general principle governing disclosure. Likewise, the distinction between application and forfeiture cases may assist but does not replace close attention to the facts.
5. The Authority ought to have put to Abbey Mine the substance of adverse material concerning the chairman’s association with mining ventures other than Modal Mining Ltd, if that material was to affect the decision. Nevertheless, the evidence showed that those matters had no material effect. The decisive comparison concerned the rival Margam proposals, and the relevant history of Modal at Margam had been raised at the review hearing. The omission therefore caused no unfairness.
6. The remaining challenges concerning surface rights, planning consent, proposed timeframes, production targets and alleged unconscious reliance on irrelevant considerations disclosed no unfairness or irrationality. Abbey Mine had received sufficient notice and opportunity to address the relevant matters.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld the rejection of the judicial review challenge: [2008] EWCA Civ 353.
2. Administrative Court: Dobbs J dismissed Abbey Mine’s application for judicial review on 18 May 2007. No neutral or report citation is stated in the judgment.