Harvey, R (on the application of) v Leighton LinsladeTown Council

A procedural legitimate expectation to consult arises only in exceptional circumstances. Ordinarily, a public authority may decide both the substance of policy and the procedure for doing so. A duty may arise where there is a distinct promise or established practice of consultation, or where prior conduct makes a proposed change so unfair as to amount to an abuse of power.

Where consultation is undertaken, it must satisfy the four Gunning requirements: it must occur while proposals remain formative, provide sufficient reasons, allow adequate time for response, and be conscientiously considered. A costs capping application must disclose financial resources likely to become available, including a reasonably foreseeable inheritance. Material non-disclosure permits the court to revisit the order, even where the omission was made in good faith.

The claimant sought judicial review of the defendant town council’s decision of 12 March 2018 concerning differential market pitch fees, charges for additional space and long-service discounts. She argued that the council had failed to consult fairly before changing the fees.

The council contended that no duty to consult arose, that any consultation undertaken was adequate, and that relief should be refused. The claimant also applied under CPR 46.19 to set aside or vary a costs capping order made when permission for judicial review was granted. The central issues were whether a procedural legitimate expectation or other duty to consult arose, whether the consultation complied with the Gunning principles, and whether the costs capping order should be reconsidered in light of a prospective inheritance.

1. Judicial review claim dismissed. The 12 March 2018 decision was an adjustment to the fee structure approved in 2017, rather than a fundamental change of the kind considered in R v Birmingham City Council, ex parte Dredger and Paget. There was no distinct promise or established practice requiring formal consultation before the challenged decision. The council’s engagement with traders and the public did not itself create such an obligation. The threshold for a secondary procedural legitimate expectation was exceptional and fact-sensitive, as explained in R (On the application of) Batt Murphy v The Independent Assessor.
2. Even if a duty to consult had arisen, the consultation was adequate. The proposals remained formative; the reasons for them, including fee parity and the encouragement and retention of traders, were explained; sufficient time was available for consideration and response; and the committee conscientiously considered the representations before deciding. The four principles stated in R v Brent London Borough, ex parte Gunning were therefore satisfied.
3. The court would have granted relief if the duty had existed and been breached. Delay, administrative difficulty and uncertainty about the benefit of quashing would not, on the facts, have justified refusing relief.
4. The costs capping order was set aside and replaced with a fresh order limiting the claimant’s costs liability to £20,000. Under sections 88 and 89 of the Criminal Justice and Courts Act 2015, likely financial resources include assets or money expected within a reasonable period measured against the litigation. The claimant’s prospective inheritance was material and should have been disclosed. Good-faith non-disclosure did not automatically require setting aside, but in the circumstances it justified reconsideration.
5. There was no general power to revisit the costs capping order merely because the substantive judicial review had concluded. The proper basis for intervention was material non-disclosure, not a general change of circumstances.

First-instance judicial review in the Administrative Court. The judgment itself does not state any subsequent appellate decision.