This was the JR involving issues of discrimination against part-time workers. Permission refused - out of time. Although the LSC's failing of the equality duty appears to have been accepted by the court.
Post by Patrick Torsney on Dec 21, 2010 13:27:55 GMT
Very well spotted, douglas
Here is the final conclusion of the judgement given by The Hon Mr Justice Burnett:
Drawing together the threads of the arguments relating to time, my conclusions are these. The time at which the grounds for this challenge arose was 30 November 2009. The Solicitors were not entitled to wait and see whether the suggested illegality in the criteria resulted in their failure to secure a contract, or reduced new matter starts awarded to them even if successful. The evidence that there was a general sense amongst the profession that it was better to wait, exiguous as it is, does not alter that conclusion. The position articulated in Jobsin is clear. The fact that the challenge is made in the arena of European procurement law relying on alleged discrimination which has its roots in European law similarly does not alter the position. The challenge by reference to discrimination could have been brought after 30 November. The requirement to do so promptly and in any event within three months, whether by way of judicial review or by claim under the 2006 Regulations, provides an adequate remedy. An appeal to Article 18 of the 2005 Directive does not assist. Remedies may be subject to domestic time limits. In Jobsin time was not extended even though the Court accepted a breach of European procurement law. I do not doubt the sincerity of the view expressed by and on behalf of the Solicitors that the award of an immigration contract to them would be in the public interest because it would deliver a wider choice to those in need of such services in East London. However, given the very large numbers of service providers who were successful in London the argument is objectively weak. But, in any event, there is no avoiding the purpose of these proceedings. It is to secure work to the Solicitors. The circumstances are distant from those that led this Court to extend time in the Law Society case in its public interest challenge. There is, in my judgment, no good reason to extend time. Whilst I have rejected the Solicitors argument based upon indirect discrimination, I have accepted that in introducing the supervisor attendance criterion the LSC did not have due regard to its equality duty under section 76A of the 1975 Act. The strength of the claim is an important factor in deciding whether to extend time. Unless the award of contracts under the immigration package (quite apart from the others in which the same or a similar criterion was applied) were suspended whilst the LSC is required to reconsider the supervisor attendance criterion and then rerun the exercise if it concludes that it should be removed or refined having due regard to the equality duty, it is difficult to see any benefit that could accrue to the claimants. I am unable to accept, having regard to all the circumstances of this case, that it is appropriate to extend time. No good reason to do so has been advanced. I am also satisfied that an outcome that might result in the award of a contract to the Solicitors would involve prejudice to third parties and be a detriment to good administration. I decline to extend time and refuse permission to apply for judicial review. Although the order will be to refuse permission to apply for judicial review, this judgment was given after a rolled-up hearing which lasted two days. In the circumstances, this judgment will be placed on Bailii and may be cited in other proceedings.
Deborah Adler has exhibited an entry from a blog dated 10 September commenting on the Solicitors' proposed legal action. The posting was left by an anonymous male from Rotherham who commented that he considered the selection criteria for the 'immigration removal centre tender' to be 'horrendously unfair', 'wholly irrational and … biased'. That is a different package from the one this application is concerned with. Be that as it may, he thought that the criteria applicable for that package were obviously in conflict with the 2006 Regulations. He said that he had discussed the matter with the Law Society but was told not to challenge them immediately, despite his certainly that he would fail in the tender, but to await the outcome of the process and challenge only if unsuccessful.
A blog?? Surely ilegal is far more than a blog - pity there was not a formal name-check for ilegal.
Also, interesting to note that our musings are being used in legal actions before the High Court.
Suprised that Ms Adler did not contact the anonymous male from Rotherham (i.e. me!) to seek further information or perhaps a statement.
Oh well, would be interested on the views of others (including other members of the ilegal team) on this use of postings in litigation.
Post by Patrick Torsney on Dec 22, 2010 10:52:45 GMT
Anyone who wants to see the reference in the actual decision, it's in section 17
A blog?? Surely ilegal is far more than a blog - pity there was not a formal name-check for ilegal.
The term 'blog' is very much in vogue these days so even if Debbie Adler said it was a 'forum' the distinction may likely have been lost on the judge or someone somewhere else down the line prior to it being written up
Yes, it's a pity that we didn't get a name check
Suprised that Ms Adler did not contact the anonymous male from Rotherham (i.e. me!) to seek further information or perhaps a statement.
I'm a little surprised about this too, particularly as Debbie and I had been in contact when the news that they were taking action came out. Even if she were unable to contact you directly for some reason I would have been more than happy putting you in touch. An actual statement from you would no doubt have added more weight and I am sure you would have been happy to help her out
Oh well, would be interested on the views of others (including other members of the ilegal team) on this use of postings in litigation.
I'd be interested in what people thought too so if anyone has an opinion please reply
My own view is that the nature of ilegal is that it's open to everyone and anyone can use what they want - the 'free' principle is even included in the the ilegal anti-definition that went up yesterday and has been right at the core of ilegal since it was created. As such, I don't think we can or should try avoiding posts being used in this way
