Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 – Law Journals

Contractual discretion: The age of reason?

David Hall, Tom Whittaker and Harry Jewson condense the lessons to be learned five years post-Braganza ‘In those cases where a Braganza term has been implied, there is a clear justification that the term is necessary in order to prevent, or protect against, an abuse of power by the decision-maker.’ In Braganza v BP Shipping …

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Contracting: Discretion is the better part of valour

Jason Rix examines contractual discretion and absolute contractual rights ‘Where a contract is found to include a contractual discretion, the authorities show it will be subject to an implied term that the person exercising the discretion does so honestly and in good faith, with regard to the contract.’ Freedom of contract is a common term …

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Contract: Making your mind up

Tom Whittaker weighs up the judicial scrutiny of contractual discretion ‘Historically, the court has required only that the relevant decision be made without arbitrariness, capriciousness and irrationality. More recent cases, however, suggest that the court may also require that the decision be reasonable.’ Contracts often confer obligations to make decisions, exercise discretion or form opinions …

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Contract: Beyond reason

Jonathan Elvey and Despina Plomaritu consider the recent decision in Braganza ‘In private contracts, as in public matters, both limbs of Wednesbury should be looked at in assessing the reasonableness of a decision. And on that basis (said the three majority judges), BP had acted unreasonably.’ Contracts often give you free rein to take a …

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Planning Update: Challenging planning decisions

Understanding the planning process is vital if contracts conditional on planning permission are to accurately reflect the parties’ intentions. Tim Willis and Rebecca Bergin discuss the judicial review and statutory challenge process ‘The Planning Court is now up and running and is anticipated to deal with 400 planning cases each year.’ The planning system, with …

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Charities: Threat to independence?

In the first of two articles David Schmitz examines whether gagging clauses are enforceable against charities ‘There is now a serious concern that when it comes to hiring voluntary organisations to provide services on behalf of the government, these organisations are coming under pressure to hold back from criticising the government and its policies, as …

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Charities: A question of confidence

Robert Keylock assesses the implications of Mountstar (PTC) v Charity Commission for charity professionals ‘The Commission considered that the tax effectiveness of the scheme was a question for HMRC alone. It also concluded that the scheme did not provide any direct or indirect benefit for the directors.’ The Cup Trust caused a furore after the …

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Development: A river runs through it

A successful challenge to the Environment Agency’s flood map zones has created huge opportunities for developers. Cameron Whitehead explains ‘With the scenic nature of canals and waterways providing the impetus for buyers, developers should see the alteration of the flood map as an excellent opportunity for new residential and commercial sites.’ For developers, land is …

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Dispute Resolution: Moving the stalls

Jeremy Glover examines the use of expert evidence in procurement disputes The possibility of being able to rely on a detailed expert’s report, dealing with all aspects of the evaluation and out of which a case as to manifest error or unfairness might emerge, would be at least superficially attractive to a claimant. The case …

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