AC-2024-LON-0001595 - [2025] EWHC 2182 (Admin)

The general principles as to fairness in the administrative context were summarised by Lord Mustill in Doody at p560D-G as follows:

“What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interest’s fairness will very often require that he is informed of the gist of the case which he has to answer.” (Emphasis added)

The present case is concerned not with a statutory discretion but a contractual one, and it is clear that there is no universal right to the provision of information prior to a relevant decision being made. The requirements of fairness may in a particular context be satisfied by simply providing the affected party with the decision and an opportunity to challenge it thereafter: see e.g. R (FB(Afghanistan)) v SSHD [2020] QB 185 at [81]. Not only is the context here contractual, but it is also far removed from cases such as Kanda, Miller or Sittampalam which concern disciplinary or adjudicative measures or the fundamental rights of asylum seekers. Whilst the Anglian Water case (also cited by the Claimant) did hold that third party representations ought to have been made available to the company before a decision was made, that was in the context of an obligation under s.101A of the Water Industry Act 1991 which imposed on sewerage undertakers a duty to provide a public sewer in a particular locality if certain detailed statutory conditions are satisfied and where an earlier determination had been reached without reference to such representations. That case is not authority for any general proposition that there is a right to be informed of third-party representations in all cases (and Mr Litton did not suggest it was).

The Contract and the SRTs do not provide for any information to be made available, or for a developer to make any representations, prior to the relevant decisions being made. In fact, no procedural requirements are stipulated at all, and it has not been suggested that that is in itself unlawful. This contrasts with other parts of the SRTs where there is such a right, e.g. under Clause 13.18, PDs may query any amount required to be reimbursed on specified grounds. It would be contrary to that contractual scheme if public law rights were to cut across it so as to create rights for Rydon that are not otherwise catered for: see Mauritius at [63]. In any case, Rydon has available to it contractual remedies that could be pursued by way of Part 7 proceedings. These could include for example, if Rydon were so minded, a claim that the SoS did not act “reasonably” in reaching the Designation Decision as he was contractually obliged by the definition of “Designated Participant Developer” within Annex 1.

It is also relevant to note in considering the overall fairness of the process followed that, notwithstanding the absence of any contractual right to make representations, Rydon was afforded the opportunity to do just that. Rydon complains that it could not respond specifically to certain matters raised by third parties including as to the lack of trust. However, given the history of the matter, including the evidence and submissions of the Department during Phase 1 of the Inquiry, the sorts of issues raised by the Deputy Mayor and the RMCs ought to have been obvious. The Deputy Mayor, for instance, highlights Rydon’s exclusion from the Help to Buy Scheme - an exclusion that Rydon did not consider commercially worthwhile challenging at the time - and that “until the Grenfell Tower Inquiry publishes its findings and recommendations, serious concerns remain around the integrity and competence of this developer”. Similar concerns were expressed by the RMCs albeit by reference to certain dealings with Rydon both before and since the need for remediation arose. This included Rydon’s failure to respond substantively to a letter from KDG dated 18 January 2021 enclosing a fire safety report and seeking confirmation from Rydon as to the financial support it would be offering given its role as the developer of the Cable Street Buildings responsible for the defects noted in that report. Realistically, it cannot have gone unnoticed by Rydon that there were such concerns, even without being shown the September 2023 letters, and it could have sought to address them in general terms in its representations, although it is difficult to discern what could have been meaningfully said other than to express disagreement with them. It is also relevant to note that the Department, in testing some of Rydon’s claims, asked Rydon about the failure to respond to the 18 January 2021 letter mentioned by the RMCs, thereby expressly affording Rydon the opportunity to address that issue.

For these reasons, there was, in my judgment, no breach of natural justice. Ground 1 therefore fails and is dismissed.