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Council to consider costs pursuit after judgment issued in libraries dispute

Lincolnshire County Council has said it will consult its lawyers about the recovery of its costs after a High Court judge set out why in July she rejected a legal challenge to the authority’s plans for its libraries services.

Mrs Justice McGowan had already announced she would rule in favour of Lincolnshire in the case of Draper v Lincolnshire County Council [2015] EWHC 2964 (Admin). Her judgment, published today (22 October) can be found here.

The case was the second challenge brought by the claimant, Simon Draper, and backed by Save Lincolnshire Libraries over the plans.

There are currently 47 libraries in the county. Lincolnshire County Council has proposed to provide 15 major libraries alongside online services and specialist support. There will then be around 30 ‘community hubs’ run by voluntary groups, who will receive professional support, £5,000 a year towards running costs and access to a potential, one-off grant of up to £15,000.

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The claimant succeeded in part in his first challenge, with Mr Justice Collins quashing the council’s decision to implement the plans because of flaws in decision making and consultation.

In February this year Lincolnshire’s Executive approved the latest plans, which were condemned by the Save Lincolnshire Libraries group as fundamentally no different to the original proposals.

The claimant’s grounds in this second challenge were:

  1. The second consultation was flawed, in that it failed adequately to deal with any alternative proposals;
  2. The procurement exercise, following the acceptance of an expression of interest from Greenwich Leisure, was flawed in that it failed to meet the requirements of s.83 (2) Localism Act 2011;
  3. In taking the decision the defendant council failed to meet the "best value" duty imposed by s.3 Local Government Act 1999 and/or the decision making process was irrational in the Wednesbury sense.

On the first ground Mrs Justice McGowan said the key issue was whether the consultation document provided enough information to meet the requirements of fairness.

“Any such consultation document has to achieve an acceptable minimum standard; it is not a counsel of perfection. The October Consultation, with the links provided and in conjunction with the earlier material does achieve that standard,” she said.

“In any event the challenge on this ground was not brought in a timely manner and not even within three months of the publication of the document under challenge. If the claimant was aggrieved at the nature of the consultation document it was not open to him to ‘wait and see’ if he liked the result of the process, nonetheless.”

The judge ruled that this ground had not been brought within time and the council had proceeded in the absence of any challenge.

“If it had been arguable then it would have been necessary to consider an exercise of discretion but that does not arise,” Mrs Justice McGowan said.

In relation to the second ground, s.83 (2) states: "If the relevant authority accepts the expression of interest it must carry out a procurement exercise relating to the provision on behalf of the authority of the relevant service to which the expression of interest relates".

The claimant argued that if an expression of interest was accepted and the consequent procurement process commenced then the relevant authority was bound to conduct the procurement exercise for the entirety of the service for which the contender had bid.

The council on the other hand argued that when a relevant authority accepted an expression of interest it was only bound to conduct a procurement exercise for those services it was seeking to procure.

Mrs Justice McGowan found for Lincolnshire on this ground as well. “The scheme behind the Localism Act was to oblige authorities to canvass and consider the ability of a ‘relevant body’ to provide a service as required,” she said.

“That the procurement exercise relates to the service subject to the expression of interest cannot be intended to mean that the procurement exercise that the authority is obliged to undertake extends to the widest limits of the bid, irrespective of what the authority wants. The 'relevant service' is the service relevant to the authority because that is the service which they require. Services wider than what is required are not relevant.”

On the third (best value/irrationality) ground, the judge also ruled in favour of Lincolnshire.

The claimant had sought to argue that the council had acted irrationally and perversely by determining what service it wanted before the procurement process and by choosing the model it did in preference to those put forward by other contenders.

But the judge said: “The difficulty in the submissions that the claimant makes is that they require the Court to place itself in the position of decision maker and to say that a particular issue, if decided in a different way might have brought about greater savings and/or an enhanced service.

“How the defendant goes about seeking to try to achieve the ‘improvement’ is a matter for the expert judgment of the council.”

She noted that the report to the Executive was lengthy and detailed. “It sets out the issues, canvasses options and by reference to the financial information and the details of the various proposals makes a recommendation. It draws on the expertise of the officers of the council. The executive then considered the matter and reached a decision. It is not for this Court to audit that process. It cannot be argued that the decision to choose a particular option is Wednesbury unreasonable.”

Mrs Justice McGowan noted how this ground had been identified by Hamblen J as hopeless on the paper application. “Despite skilled oral argument it has not improved.”

She concluded: “However difficult it may be to reduce the provision of library services without causing a reduction in service to some individual users, it is the task of the county council to meet all its competing duties. There is nothing in this challenge which demonstrates that the defendant has reached these decisions in a manner susceptible to successful judicial review.”

Mrs Justice McGowan refused permission on all three grounds.

Commenting after publication of the judgment, Cllr Martin Hill, Leader of Lincolnshire County Council, said: “This judgement makes it abundantly clear that the council acted in a legal and proper manner. In fact, the judge is pretty damning in her assessment of the campaigners’ case, even going as far as to suggest one of their arguments was ‘hopeless’.

“Unfortunately, this hasn’t stopped their two ill-considered challenges resulting in around £350,000 of taxpayers’ money being wasted. This is frankly outrageous, and we will certainly be consulting our lawyers regarding the recovery of our costs.

“It also raises rather serious questions about the rules surrounding legal aid and the way in which it can be used for what some might argue are political purposes.”

Draper and his legal team are understood to be considering whether to appeal.

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