Citation: The Queen ( on the application of Glenn Jenkins) v Marsh Farm Community Development Trust (and Marsh Farm Outreach, Luton Borough Council, Secretary of State for the Communities and Local Government as Interested Parties)
Issues: Procurement. Judicial Review. Interim Injunction. Legitimate Expectation. Abuse of Power.
Judgment: 25th February 2011
Boyd Morwood representing Defendant [MFCDT] instructed by Anthony Collins Solicitors
The Claimant Glenn Jenkins is a private citizen and member of Marsh Farm Outreach (MFO), a Community Interest Company, whose aim is to secure funding for social enterprise projects on the Marsh Farm Estate in Luton. The Defendant Marsh Farm Community Development Trust (MFCDT) is a company which supports and administers applications for grant monies as part of the New Deal for Communities programme. MFCDT derive their funding from Government derived grant monies. Any application for funding over £250,000 or for 'novel and contentious projects' must be approved by MFCDT and the Government Office. MFCDT receive an agreed level of annual funding which is set out within its Annual Delivery Plan for distribution between nominated projects. A sum of up to £48.6 million of funding was made available over a 10 year period for projects up to the 31st March 2011 including that of MFO.
In its Annual Delivery Plan for 2010/11 MFCDT had included a potential funding of £839,985 for a novel and contentious project proposed by MFO which would deliver jobs and skills to local residents over a short period ending by 31st March 2011. For a number of years MFO had difficulty persuading MFCDT and the Department that it could deliver the project but hard campaigning and local support eventually meant that conditional approval was secured. Contracts were drawn up and signed by MFO and MFCDT in October 2010. Unfortunately those were discovered to be null and void given that MFO had been put into administration for a small amount of unpaid debts. This was sufficient to give rise to a rethink by the Government Department as to MFO's suitability to receive funding for the project.
By the time that MFCDT had secured further conditional approval for MFO or an alternative organisation to deliver the relevant project a number of payments became due for other projects that MFCDT was contractually committed to. MFCDT therefore withdrew financial support from MFO and authorised a transfer of funds to other causes.
Judicial review proceedings were commenced by Glenn Jenkins on 28 January 2011 against MFCDT based upon :
a purported legitimate expectation that MFO would receive the funds that had been set out by MFCDT in its Annual Delivery Plan.
an alleged abuse of power by one of MFCDTs officers who, it was suggested, transferred monies to other projects outwith the discretionary powers provided to him under MFCDTs Financial Regulations. Mr. Jenkins suggested that the relevant officer had committed those monies to other projects before MFCDTs board had met to consider or the issue in detail or ratify the transfer.
a purported assurance by MFCDT that it would resign contracts with MFO once they had rescinded any order for administration.
Mr. Jenkins sought, amongst other remedies :
1) Interim Injunctive Relief
a) a freezing order in relation to the funds of MFCDT until resolution of the issues at a substantive hearing
2) Substantive Relief
a) an account of monies previously set out in its Annual Delivery Plan for MFO;
b) a payment up of £706,000 or such monies as remained to MFO or other suitable delivery body;
c) a declaration of unlawful conduct on the part of MFCDT.
1. Interim Injunctive relief
This matter was considered by HHJ Purle QC sitting as a Judge of the High Court at an expedited hearing at Birmingham District Registry on 3rd February 2011.
The Defendant resisted any order being made upon the grounds that there was no proprietary claim to the monies, that in the absence of a proprietary claim the Claimant would be placing himself in an advantageous position over other individuals receiving funds from the Defendant as an unsecured creditor and that there was no undertaking offered by the Claimant.
The learned Judge found :
it is not appropriate to utilise a freezing order to put the Claimant in a better position than ordinary creditors
there was insufficient evidence to reach a conclusion on the matter sufficient to disturb the status quo
the absence of a cross-undertaking in damages, whilst not determinitive, was sufficient to cause the Court to deny the relief sought.
The Claimant appealed and the matter was reconsidered upon application by by Lord Justice Stanley Burnton on the 9th February 2011. The appeal was dismissed it being noted:
a particularly strong case is required for the granting of interim relief where the substantive claim was to be heard shortly ( in this matter 17th and 18th February)
where other contractual obligations had been incurred it is inevitable that some will not be fulfilled
if there are limited funds available to the Defendant it is not for the Court to prefer one Claimant as against another
there is no cross-undertaking offered.
2. Substantive Hearing
The matter was considered by Mr CMG Ockleton on the 24 February 2011 over the course of 2 days.
MFCDT defended the claim contesting it on the basis that:
the Claimant had no locus standi
the Defendant was not a public body susceptible to a claim in judicial review
that there was no unequivocal representation by the Defendant that the monies originally intended for MFO could not be used for other contingency projects
that there had been no express agreement to resign contracts with MFO once its liquidation was discovered
the conduct of one of the Defendants officers in committing funds before approved by the Defendant board did not affect the ability of that Board to authorise the decision after the event and this is not the subject of a legitimate expectation in any event.
Mr. CMG Ockleton handed down judgement having heard submissions at a rolled up hearing on the 17th and 18th February 2011.
In order to avoid difficulties caused by the issue of standing the court permitted MFO to join proceedings as an interested party and found that Mr. Jenkins had standing (albeit that the Court expressed 'reservations' about the issue).
The Defendant was found to have had a sufficient public element to be subject to judicial review given that the following factors were present:
a) decisions as to novel and contentious projects required formal approval and ratification by the Minister
b) there was a noted delegation limit above which Ministerial approval was required;
c) the Defendant was to ensure that NDC guidance is met through appraisal before any expenditure occurs.
Mr. Ockleton found that whilst the case was arguable in substance it was 'quite hopeless'.
Legitimate Expectation. The inclusion of monies in an Annual Delivery Plan which provides the Defendant with a discretion as to how to apply those monies does not raise a legitimate expectation. The MFO project is still to receive Ministerial approval which is now unlikely given that all monies are to be expended by 31st March 2011.
There was no abuse of power. In this instance the monies that had been included in Annual Delivery Plan for MFO were likely to have been committed to other projects well before any question of abuse or reassignment by an official of the Defendant arose.
In summary MFO had no right to be paid money as there was no legitimate expectation , there is too short a time to delivery the project within the relevant timescale and in any event insufficient money such that any judgement would be worthless.
The Defendant received its costs.