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

Fecha: 29-Ago-2025

Grounds 4 & 5 – Predetermination / Improper Motive

Grounds 4 & 5 – Predetermination / Improper Motive

113.

The Claimant contends that the evidence points to the decisions having been predetermined and/or made with the improper motive of punishing Rydon or making an example of it. Once again, there is a considerable overlap between the points relied upon in support of these grounds and those in support of the grounds considered above.

114.

The relevant test to be applied here is “…whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the [decision-making] was biased by predetermination”: see Miller at [57]. In my judgment, there is no evidence in support of the claims of predetermination or improper motive. Dealing first with the allegation of predetermination and each of the matters set out at [94] of the Claimant’s Skeleton Argument, my views are as follows:

It is said that the only factor in favour of the designation is the “concerns about the oral evidence given by some Rydon employees and former employees” to the Inquiry. This appears to be based on a somewhat incomplete reading of Annex C to the First Submission from where this quote is taken. On a fair reading of [3] of Annex C, it is clear that several of the sub-paragraphs [3(a) to (h)] either did or could relate to Rydon specifically and which may be relevant to a decision to designate. There is reference, at [3(a)] for example, to the findings of the Phase 1 Report which suggested that the Inquiry did not agree with parts of Rydon’s testimony. Furthermore, the concerns about the oral evidence were developed at [3(c)] by citing the evidence that “Rydon relied entirely on others to secure compliance and lacked the expertise to spot potential non-compliance”. Whilst other criticisms were not directed at Rydon alone, they bolstered the overall picture of concern about Rydon.

ii)

It is said that the Department did not raise these concerns with Rydon. This must be a reference to them not being specifically raised in the process leading to the Designation Decision (and the related decisions), since it is clear that these concerns were raised in the context of the Inquiry in the course of submissions. Indeed, [3(c)] of Annex C identifies the specific passages of the Department’s closing submissions for Phase 2 of the Inquiry where these concerns were set out. There can be no reasonable complaint that these concerns were not identified again in the course of the Designation Decision, given the absence of any statutory or contractual requirement to do so and given that Rydon could not reasonably claim not to be aware that these concerns existed.

iii)

The third point is that the official’s view that there was insufficient evidence to reject the Transfer Request was not included in the First Submission. I have already dealt with this “disconnect” point above. There is no substance to it. More importantly, it is difficult to discern how a decision taken by those preparing the First Submission could possibly support the contention that the SoS had predetermined the issue that he had to decide.

iv)

The Claimant complains that the Department continued to have dialogue with the RMCs despite not seeking the Claimant’s further views. This is also addressed above under Ground 2. It provides no assistance to the Claimant.

It is contended that the First Submission failed to refer to the other remediation work carried out by Rydon. This contention is mistaken, for the reasons already explained under Ground 3 above.

115.

The Claimant submits that these matters taken together with the fact that the SoS took a different view to that of his officials as set out in the Dossier, point to predetermination. I disagree. The fair-minded informed observer would note that there is nothing in any of the points above (whether taken individually or together) that indicate that the SoS had already made his mind up. The inference that the Claimant seeks to draw is based largely on its incredulity that it could be designated as unfit when it was actively remediating other buildings. For reasons already explained, the Claimant’s assessment of that issue is based on an unduly narrow understanding of the notion of fitness. It provides no support for the allegation of predetermination.

116.

Considerable reliance is placed on the SoS’s response to an email querying whether Rydon could start remediation work on some other buildings. The response was as follows:

“Thanks very much for this. SoS was clear that he is designating Rydon, period - but would choose not to issue a direction in respect of those seven buildings referenced.
He has approved the attached letter, which just had minor amends. Can you confirm you're happy for me to e-sign and send, and I will do so on Monday morning.” (Emphasis added)

117.

It is suggested that the words, “SoS was clear that he is designating Rydon, period” indicate a closed mind-approach. There might have been some extremely limited substance to this point if the SoS had used such language long before the date of the decision. However, the fair-minded and informed observer would note that the SoS’s view here was being expressed in the course of finalising the terms of the actual Decision Letter itself, the SoS having already expressed his initial decision on 4 January 2024 and could hardly support an inference that there had been predetermination before those decisions were made.

118.

The Claimant’s case on improper motive is, in my view, equally lacking in substance. (There is a pleading issue which I dismiss for reasons similar to those set out in respect of the previous pleading point). That case relies to some extent on the same points as for predetermination. To the extent that it does, the same reasoning as above applies to those points, which also do not support the claim of improper motive.

119.

The additional factors relied upon here are: (i) the SoS’s decision that the Cable Street Buildings be remediated to the CAN standard as opposed to the less exacting PAS 9980 standard, which entailed adverse financial consequences for Rydon, amounting in effect to a “fine”; (ii) the SoS’s decision was contrary to the Ministerial “steer” that a Transfer Request should be granted by officials if the deadline for remediation was within 3 months; and (iii) there is no explanation for the SoS’s conclusion that there was a material risk of delay to the remediation works given that Rydon had already indicated that it was in a position to commence those works within 28 days of transfer.

120.

As to (i), remediating to the CAN standard was a legitimate option, the costs consequences of which were fully set out in the First Submission. The Claimant does not contend otherwise. In those circumstances, it is difficult to see how a decision to take a lawful option could be evidence of the serious charge of acting with an improper motive.

121.

As to (ii), the Ministerial Steer referred to was given at a considerably earlier stage in the process prior to the Designation Decision and was not directed at a particular developer. The refusal of Rydon’s Transfer Request was pursuant to the Contract and SRTs following the Designation Decision. That process does not suggest any improper motive.

122.

Finally, as to (iii), it was not irrational to consider that there was some risk of delay in circumstances where, on the one hand there were GFAs ready to be signed with REs and works (on the information at that time) apparently ready to start, and on the other, there was an assurance from Rydon as to a promised start time. It is right to say that the position was not such that it could definitively be said that the former route would be substantially quicker. However, it was a question of judgment at that stage which cannot be impugned as being irrational or indicative of some ulterior or improper motive.

123.

For these reasons, Grounds 4 & 5 fail and are dismissed.