1. Public Law and Challenging
Funding Cuts
Selman Ansari
14 October 2010

2. The starting point
 Is your arrangement with a public authority
covered by private or public law?
Private Law
 Contracts with public authorities will generally (but
not always) be governed by private law.
 Private law remedies are aimed at preventing
breaches of agreed terms and tend to be more
certain.
Public Law
 Grant funding
 Funds provided under a grant

3. Causes…
 Irrationality
 Failure to satisfy legitimate expectation
 Inadequate consultation
 Failure to properly conduct equalities impact
assessment
Effects…
 Quashing
 Remittance
 Damages

4. A health warning…
 Judges and the allocation of resources
 Also, the reluctance to interfere with
‘expert’ evidence

5. Irrationality…
 A basic and pervasive concept of public
law; also much misunderstood
 A decision is irrational when no reasonable
decision maker could make such a
decision on the basis of the evidence
before him
 The concept of “range of reasonable
responses”
 JR is not an appeal or a re-hearing

6. Legitimate expectation…
 Where there is a practice or a promise to
act in a certain way and that has been
relied on
 Practically:
 Do the terms of the grant give you any
expectation of the manner in which it will
operate?
 Are there terms as to how any funding will
be terminated?

7. Consultation…
 No free standing duty to consult
 However,
 if an expectation of consultation has been
given, it must be done properly and fairly;
 question the rationality of a decision made
without consultation.

8. Equality Impact Assessments…
 The Equality Act 2010 requires public authorities
to have due regard to the need to eliminate
discrimination and promote equality with regard to
race, disability and gender as well as to promote
good race relations.
 Such regard is demonstrated by an Equality
Impact Assessment.
 Effects need to be assessed and possibly
mitigated or a proposal abandoned.
 Very untested area of the law.

9. Bloomsbury International Limited v The
Sea Fish Industry Authority
 Court allowed public law arguments to be
used in a private law claim
 Bloomsbury claimed that the Authority had
unlawfully levied a charge
 The Court allowed a private law restitution
claim by Bloomsbury to have the monies paid
back (outside of the 3 month time limit)
 A complicated, fact sensitive, evolving area of
the law

10. Tactics and Conclusion…
 Analyse the events that are causing you
concern and take advice early
 Weak responses from public authorities make
judges angry; take it further and establish the
strength of the authority’s legal position
 Be wary of costs but be prepared to be bold
 Consider clubbing together with others
similarly affected

11. Selman Ansari
Of Counsel
Bates Wells & Braithwaite London LLP
Email: s.ansari@bwbllp.com
T: 0207 551 7784