Trafford v Blackpool Borough Council

A public authority’s decision concerning a contract may be amenable to judicial review where there is a sufficient connection between the contractual decision, the statutory power and a genuine public law challenge. Even where the statutory power is broad, the authority must not use it for an improper or unauthorised purpose, such as punishing a person who has acted lawfully. It must also take relevant considerations into account and act fairly where it departs from published criteria. A decision motivated by mixed lawful and improper purposes may be vitiated as a whole. Procedural fairness may require an affected person to have an opportunity to address allegations relied upon by the authority.

The claimant, a solicitor operating from premises owned by the defendant local authority, challenged the refusal to offer her firm a new contracted-out tenancy. The authority’s stated reasons referred to the firm’s pursuit of personal injury claims against the authority and its alleged financial interests.

The authority disputed the claim on grounds of delay, amenability to judicial review, legality, rationality, procedural fairness, the public sector equality duty and alleged unpublished policy. The court considered whether the decision was sufficiently connected with the authority’s public functions to be reviewable and whether the decision-making process was lawful.

1. Delay and amenability. The court extended time for bringing the claim. A decision by a public body concerning a contract requires analysis of the contract, the statutory power, any statutory framework and the surrounding circumstances. The court must also distinguish genuine and substantial public law challenges from complaints that are in reality private law claims.
2. Where a public body acts under a statutory power in relation to a contract, but without a substantial public function element, fraud, corruption, bad faith and improper motive remain reviewable. Broader public law challenges depend on whether there is a relevant and sufficient nexus between the contractual decision and the alleged unlawful exercise of public power.
3. Although Local Government Act 1972, section 123 conferred a very wide power, the Enterprise Centre’s public funding, public purposes and published tenant-selection criteria supplied a sufficient public law connection. The decision was therefore amenable to review.
4. Improper purpose and irrationality. The authority had discretion to consider the claimant’s business and its financial interests. It was not entitled, however, to use the power predominantly to punish the claimant for pursuing lawful claims. The decision was also unlawful because the authority failed to consider the published tenant-selection criteria and other relevant matters. If lawful and illegitimate purposes were both operative, they were inextricably mixed and the decision was vitiated.
5. The decision was irrational on the alternative basis that relocating the firm had no rational connection with reducing the number of claims against the authority. The court rejected the allegation of an established secret policy because the evidence showed only a one-off decision.
6. Procedural fairness. Having adopted and published tenant-selection criteria, the authority could not decide in advance to refuse even to consider the claimant’s application by reference to different criteria without giving her an opportunity to make representations. That included an opportunity to address the imprecise allegation of claims farming. The later review did not cure the defect because it repeated the same flaws.
7. Permission to amend to add the public sector equality duty ground was refused because the authority had not had a proper opportunity to respond and would suffer prejudice. Permission was also refused on the unpublished-policy ground.
8. The claimant succeeded on grounds 1, 2 and 3. The decision not to accept any application for a new tenancy was to be quashed, subject to further argument on the precise relief.