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It may be decisive. FAC |
It all depends. FAC |
He found assistance in the law relating to legitimate expectation, citing R v Secretary of State for Education and Employment, Ex p Begbie [2000] 1 WLR 1115, 1127B-D, per Peter Gibson LJ, to the effect that whether an authority should be permitted to resile from a mistaken statement depends on whether that would give r... |
In the same way, as he saw it, the question in the present case was whether the OFT should be permitted to resile from a mistake where to do so results in unfair and unequal treatment of the claimants. FAC |
He concluded that it should not. FAC |
It is necessary to quote the concluding paragraph in full, to indicate the sequence of events and combination of circumstances, which appear to have led Lord Dyson MR ultimately to the view that the OFTs action was unlawful: 60. Ratio |
But the real focus must be on the question whether the 2012 Decision was objectively justified. Ratio |
That is when the OFT decided that it would act on the 2008 decision in relation to TMR and honour the assurances that it had mistakenly given at that time, and to treat the claimants differently. Ratio |
The result was that it agreed with TMR to repay the whole of its penalty plus a contribution of 250,000 in relation to costs and interest. Ratio |
But it refused to pay anything to the claimants. Ratio |
The only difference between the positions of TMR on the one hand and that of the claimants on the other hand was that the OFT had given the assurances to TMR in 2008, but not to the claimants. Ratio |
The effect of that manifestly unfair and unequal treatment in 2008 could have been reversed after the issue had been raised by Asda and party A and the OFTs eyes had been opened to the significance of its earlier mistake in giving the assurances to TMR. Ratio |
That would have put all the companies which had been the subject of the Tobacco Decision and to which the [Statement of Objections] has been addressed on an equal footing. Ratio |
The OFT could have withdrawn the assurances. Ratio |
It would not have been too late for TMR to appeal at that time. Ratio |
Even if TMR had been out of time, it would have had a very powerful case for arguing that the withdrawal of the assurances was an exceptional circumstance which justified an extension of time for appealing. Ratio |
Instead, the OFT acted on the assurances it had given to TMR, made the 2012 decision and repaid the penalty previously levied and made further payments too. Ratio |
In all the circumstances, this was a plain breach of the principle of equal treatment and unfair. Ratio |
The Court of Appeals order declared that the OFT had acted unlawfully by - (a) not offering the appellants in 2008 the assurance given to [TMR] that in the event of a successful appeal by other parties, it would benefit from that appeal decision even if it did not appeal; and (b) refusing in 2012 to make payment to the... |
It ordered that the respondents should each be entitled to payment of a sum equal to the penalties they had paid to the OFT, together with an amount in interest and costs. RLC |
Equal treatment and fairness RLC |
The submissions ARG |
It was central to the reasoning of both courts below that the OFT was subject (as Collins J put it) to public law requirements of fairness and equal treatment. Ratio |
That analysis was not seriously challenged by counsel for the appellant in this court. Ratio |
They accepted that the principle of equal treatment applied to the OFT, but submitted that it did not require it to replicate a mistake, at least in the absence of conspicuous unfairness. Ratio |
They rely on the approach of Lord Bingham in R (OBrien) v Independent Assessor [2007] 2 AC 312, para 30: It is generally desirable that decision-makers, whether administrative or judicial, should act in a broadly consistent manner. Ratio |
If they do, reasonable hopes will not be disappointed. Ratio |
But the assessors task in this case was to assess fair compensation for each of the appellants. Ratio |
He was not entitled to award more or less than, in his considered judgment, they deserved. Ratio |
He was not bound, and in my opinion was not entitled, to follow a previous decision which he considered erroneous and which would yield what he judged to be an excessive award. Ratio |
The respondents similarly adopt the language of equal treatment and fairness. ARG |
Thus Miss Jessica Boyd, counsel for the second respondent, formulated the issue in these terms: The issue before the Court is whether it was conspicuously unfair and/or a breach of the principle of equal treatment, amounting to a breach of public law, for the OFT, on the successful appeal of its decision in the Tobacco... |
The equal treatment principle was said to be well-established in domestic law, by reference for example to R (Middlebrook Mushrooms Ltd) v Agricultural Wages Board of England and Wales [2004] EWHC 1447 (Admin) at para 74. ARG |
The expression conspicuous unfairness was derived from the judgment of Simon Brown LJ in R v Inland Revenue Comrs, Ex p Unilever plc [1996] STC 681, as applied by Richards J in R v National Lottery Commission, Ex p Camelot Group plc [2001] EMLR 3, para 72. ARG |
To those authorities Lord Pannick QC for the first respondent added Bank Mellat v HM Treasury (No 2) [2014] AC 700, 773 para 25 per Lord Sumption; and Paponette v Attorney General of Trinidad and Tobago [2012] 1 AC 1, 12 paras 28 and 30 per Lord Dyson. ARG |
He relied also on the formulation of the principle of equal treatment in European Union law: The principle of equal treatment, as a general principle of EU law, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way, unless such treatment is... |
(Case C-510/11, Kone OYJ and others v European Commission (Elevators and Escalators Cartel Appeal) [2014] 4 CMLR 10, para 97). ARG |
This was said to apply to the relevant functions of the OFT, by virtue of section 60(1) of the Competition Act 1998, the purpose of which is to ensure that as far as possible questions arising under this Part in relation to competition within the United Kingdom were dealt with in a manner consistent with the treatment ... |
Notwithstanding the degree of common ground on these points, it is important in this court to be clear as to the precise content and attributes of the relevant legal principles, and their practical consequences in terms of remedies. Ratio |
Equal treatment Ratio |
Whatever the position in European law or under other constitutions or jurisdictions, the domestic law of this country does not recognise equal treatment as a distinct principle of administrative law. Ratio |
Consistency, as Lord Bingham said in the passage relied on by the appellant (para 19 above), is a generally desirable objective, but not an absolute rule. Ratio |
The need for clear dividing lines in this context has been highlighted in the Privy Councils consideration of various forms of equal treatment clauses in common law constitutions. Ratio |
Thus for example in Webster v Attorney General of Trinidad and Tobago [2015] UKPC 10; [2015] ICR 1048 the Board was concerned with section 4(d) of the Constitution of that country, which recognises the right of the individual to equality of treatment from any public authority in the exercise of any functions. PRE |
Lady Hale commented (para 14) that open-ended constitutional guarantees of equal treatment by public authorities, such as that in section 4(d), are few and far between. PRE |
She contrasted such provisions with the Constitution of Mauritius, section 16 of which prohibits discrimination both by the laws and by public authorities, but only on defined grounds, and under which, as the Board had held in Matadeen v Pointu [1999] 1 AC 98 there was no general constitutional right to equal treatment... |
In the latter case, in an important passage under the heading Democracy and Equality ([1999] AC 98, para 9), Lord Hoffmann had emphasised the need to distinguish between equal treatment as a democratic principle and as a justiciable rule of law: 9. Ratio |
Their Lordships do not doubt that such a principle is one of the building blocks of democracy and necessarily permeates any democratic constitution. Ratio |
Indeed, their Lordships would go further and say that treating like cases alike and unlike cases differently is a general axiom of rational behaviour. Ratio |
It is, for example, frequently invoked by the courts in proceedings for judicial review as a ground for holding some administrative act to have been irrational: see Professor Jeffrey Jowell QC, Is Equality a Constitutional Principle? (1994) 7 CLP 1, 12-14 and de Smith, Woolf and Jowell, Judicial Review of Administrativ... |
Of course persons should be uniformly treated, unless there is some valid reason to treat them differently. Ratio |
But what counts as a valid reason for treating them differently? And, perhaps more important, who is to decide whether the reason is valid or not? Must it always be the courts? The reasons for not treating people uniformly often involve, as they do in this case, questions of social policy on which views may differ. Rat... |
These are questions which the elected representatives of the people have some claim to decide for themselves. Ratio |
The fact that equality of treatment is a general principle of rational behaviour does not entail that it should necessarily be a justiciable principle - that it should always be the judges who have the last word on whether the principle has been observed. Ratio |
In this, as in other areas of constitutional law, sonorous judicial statements of uncontroversial principle often conceal the real problem, which is to mark out the boundary between the powers of the judiciary, the legislature and the executive in deciding how that principle is to be applied. Ratio |
(see now the current edition of De Smiths Judicial Review 8th ed (2018) paras 11.061ff) As that passage makes clear, in domestic administrative law issues of consistency may arise, but generally as aspects of rationality, under Lord Diplocks familiar tripartite categorisation. Ratio |
The authorities cited by the respondents provide illustrations. Ratio |
The passage cited by Lord Pannick from Lord Sumptions judgment in Bank Mellat (No 2) (above) at para 25 was concerned directly with the question of proportionality under the European Convention on Human Rights, but it was expressed in terms which could be applied equally to common law rationality. Ratio |
Lord Sumption spoke of a measure which, while responding to a real problem, may nevertheless be irrational or disproportionate by reason of its being discriminatory in some respect that is incapable of objective justification. Ratio |
He gave as the classic illustration A v Secretary of State for the Home Department [2005] 2 AC 68, in which it was held by the House of Lords that a derogation from the Human Rights Convention permitting the detention of non-nationals considered a risk to national security, was neither a proportionate nor a rational re... |
He quoted Lord Hope (para 132): the distinction raises an issue of discrimination. ... But, as the distinction is irrational, it goes to the heart of the issue about proportionality also. Ratio |
At a more mundane level, R (Middlebrook Mushrooms Ltd) v Agricultural Wages Board of England and Wales [2004] EWHC 1447 (Admin) (cited by Miss Boyd) concerned a statutory order under the Agricultural Wages Act 1948, which established a new category of worker, the Manual Harvest Worker (MHW), whose minimum wage was lowe... |
This was challenged successfully by the mushroom growers. PRE |
Having rejected as baseless the various reasons put forward for the distinction, the judge (Stanley Burnton J) concluded that there was no lawful justification for the exclusion of mushroom pickers from the lower rate. PRE |
He cited inter alia Lord Donaldsons reference to the cardinal principle of public administration that all persons in a similar position should be treated similarly (para 74) (R (Cheung) v Hertfordshire County Council, The Times, 4 April 1986). PRE |
He concluded that the exclusion of manual harvesters of mushrooms from the MHW category was Wednesbury unreasonable and unlawful, or in other words irrational. PRE |
In the present context, however, it is not necessary in my view to look for some general public law principle of equal treatment. Ratio |
It is not difficult to hold that the OFT owed a general duty during the negotiations in 2008 to offer equal treatment to those subject to the Tobacco investigation. Ratio |
There was no logical reason to do otherwise, since it was applying a single set of legal and policy criteria to a limited group of parties within a single area of business activity. Ratio |
In addition, its commitment to equal treatment had been expressed in terms to those parties (assuming, as I do, that the speaking note fairly reflects what they were told). Ratio |
To that extent, it may be said, they had in public law terms a legitimate expectation that they would be treated equally. Ratio |
However, that in itself does not provide an answer to the present problem. Ratio |
It tells one nothing about the legal consequences of such an expectation, in terms of rights and remedies in public law, in the events as they developed up to 2012. Ratio |
Before returning to that critical question, it is necessary to consider what if anything is added by the concept of fairness, as invoked by Lord Dyson in his concluding paragraph, albeit without direct reference to authority. Ratio |
It is that gap which the respondents counsel have sought to fill by the authorities noted above, in particular the Unilever case. Ratio |
Fairness Ratio |
Fairness, like equal treatment, can readily be seen as a fundamental principle of democratic society; but not necessarily one directly translatable into a justiciable rule of law. Ratio |
Addition of the word conspicuous does not obviously improve the precision of the concept. Ratio |
Legal rights and remedies are not usually defined by reference to the visibility of the misconduct. Ratio |
Simple unfairness as such is not a ground for judicial review. PRE |
This was made clear by Lord Diplock in R v Inland Revenue Comrs, Ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 637: judicial review is available only as a remedy for conduct of a public officer or authority which is ultra vires or unlawful, but not for acts done lawfully in the exerc... |
Procedural fairness or propriety is of course well-established within Lord Diplocks trilogy. Ratio |
R v National Lottery Commission, Ex p Camelot Group plc [2001] EMLR 3, relied on by the respondents, is a good example. Ratio |
It concerned unequal treatment between two rival bidders for the lottery, one of whom was given an unfair procedural advantage over the other. Ratio |
That was rightly seen by Richards J as amounting to a breach of procedural fairness (see paras 69-70). Ratio |
Although he used the judgment to discuss principles of fairness in a wider context, that was not essential to his decision, which ultimately turned on the proposition that the Commission had decided on a procedure that results in conspicuous unfairness to Camelot - such unfairness as to render the decision unlawful (pa... |
A broader concept of unfairness amounting to excess or abuse of power emerged in a series of cases in the 1980s, under the influence principally of Lord Scarman. Ratio |
In the National Federation case (above at p 652) he had been alone in holding that a legal duty of fairness (was) owed by the revenue to the general body of taxpayers. Ratio |
However, in R v Inland Revenue Commission, Ex p Preston [1985] AC 835, in which he presided, he was able with the support of Lord Templeman (who gave the leading speech) to develop the same idea in terms of a duty of fairness to an individual taxpayer, arising from a written assurance given by the Revenue as to his tax... |
Lord Scarman himself said no more than that unfairness in the purported exercise of a power can be such that it is an abuse or excess of power, but he referred to Lord Templemans speech for illustrations (p 851H-852C). Ratio |
Lord Templeman dealt with this subject in an extended passage, starting from a citation of various statements in the National Federation case. Ratio |
In particular he took the words of Lord Scarman about the Revenues general duty of fairness (without noting that it had been a minority view) as supporting a duty of fairness owed to each individual taxpayer; but subject to the caveat that the court could not in the absence of exceptional circumstances decide to be unf... |
Judicial review, he said, is only available if the court is satisfied that - the unfairness of which the applicant complains renders the insistence by the commissioners on performing their duties or exercise of powers an abuse of power by the commissioners. Ratio |
(p 864G) Ratio |
There followed a passage citing various authorities, in which judicial review was said to have been granted on the grounds of unfairness amounting to abuse of power, either due to some proven element of improper motive (p 864H, citing Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997), or due to an e... |
These authorities, he thought, supported the suggestion that the commissioners would be guilty of unfairness amounting to an abuse of power if their conduct would in a private context entitle the appellant to an injunction or damages based on breach of contract or estoppel by representation (p 866H-867C). Ratio |
This part of Lord Templemans speech was obiter, since the claim of abuse of power failed on the facts. Ratio |
It is not without difficulty. Ratio |
It seems that in all the examples given by Lord Templeman there was a conventional ground of review, such as improper motive or illegality. Ratio |
It is not clear what he saw the word unfairness (always in inverted commas) as adding to the legal reasoning. Ratio |
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