Disputes Yearbook 2025:
Public law

Intersection between public and private law 

This year, several key cases explored the intersection of public and private law as the courts sought to clarify the extent to which the full range of public law protection is available where a contractual element is accompanied by a statutory regime or public function – albeit with mixed results. 

Rydon Group Holdings is a notable example: despite being set against a statutory background and featuring a clear public interest objective, the contractual context limited the availability of judicial review to the grounds of fraud, corruption or bad faith. However, when compared against other recent case law on the availability of judicial review, the decision adds a layer of complexity to an already uncertain area of law. 

The outcome in Rydon can be contrasted with Sarcp, where the court identified a "spectrum" of public and private law elements as opposed to watertight categories. In this case, contractual discretion was exercised in the context of public law and statutory duties, and there was found to be a sufficient public law element. However, the court noted that even where public law principles apply, a contractual context may narrow the scope of review. 

Similarly, the Court of Appeal in Shashikanth determined that a contractual dispute resolution process linked to statutory powers and functions gave rise to a presumption of a public function amenable to judicial review. Significantly, the presumption was not rebutted by the fact that the adjudicator was determining issues involving private law rights. The court emphasised the need to look at the reality of a situation, including the broader context and source of power, rather than simply focusing on one aspect that may involve private law rights and obligations.

These divergences illustrate that outcomes in cases with elements of both private and public law may depend heavily on specific facts and contexts and require analysis at a granular level to appropriately differentiate between them.

Environment and climate change litigation

Within the domain of environmental litigation, Cannavacciuolo marked the first time the European Court of Human Rights (ECtHR) found a violation of the right to life under Article 2 of the European Convention on Human Rights. The court recommended measures for the Italian authorities to address decades of large-scale environmental pollution, while clarifying that recognition of the standing and victim status of associations is restricted to the "specific context" of climate change. This decision demonstrates the ECtHR's growing inclination to encourage states to take effective environmental measures. 

Shifting the focus to the UK, the Administrative Court in Possible (The 10:10 Foundation) considered the UK strategy for decarbonising the aviation sector and reiterated that climate policy is a matter for elected decision-makers, and not the courts. This broad discretion meant it was lawful for the Government to effectively conclude at the outset that measures to limit air travel would not form part of the Government's strategy without including that option in a consultation or undertaking further detailed analysis, despite advice suggesting it should be considered a last resort.

A year on from the landmark Finch judgment, the topic of environmental impact assessment (EIA) continues to keep the courts busy. In Caffyn the Administrative Court reaffirmed the broad obligations to fully assess the indirect effects of a proposed project for an EIA to be legally adequate. Applying Finch, this requires evaluating questions of causation and whether effects are "capable of meaningful assessment". Both elements involve evaluative judgment on the part of the decision-maker, but there needs to be evidence of an assessment and consideration process and reasoned conclusions rather than mere information about effects. 

Most recently in Greenpeace v Norway the ECtHR has confirmed that, while states retain a wide margin of appreciation on how to comply with their human rights obligations in a climate change context, they are expected to ensure an adequate, timely and comprehensive EIA based on the best available science before potentially harmful activities are authorised. The ECtHR accepted that there was a sufficiently close causal link between the granting of exploration licences and climate impacts given the potential risk of extraction. For petroleum projects in particular the EIA must include a quantification of the GHG emissions anticipated to be produced, including combustion emissions both within the country and abroad, building on Finch. 

Individual standing for human rights claims remains a high bar and requires detailed, particularised evidence of high intensity exposure and an immediate need for individual protection. This means relevant organisations are more likely to be able to establish standing in climate change cases. 

In emphasising that climate protection should carry considerable weight in the balancing of competing considerations, an area traditionally left to states' own discretion, this decision adds to the growing pressure and sense of urgency from international legal institutions.

Emergence of new regimes subject to public law protection

Emerging regulatory frameworks founded on public law principles are redefining the legal landscape as novel case law expands the scope and relevance of public law. 

In Wikimedia Foundation, the Administrative Court handed down its first judgment in a judicial review claim under the Online Safety Act 2023, dismissing a challenge to a regulation setting categorisation conditions for online services but leaving the door open to future human rights challenges under this regime.

Similarly, Weis saw the Competition Appeal Tribunal dismiss an application for review in only the second subsidy control case since the introduction of the Subsidy Control Act 2022.

Also of note is the Divisional Court's dismissal of a challenge to a divestment order under the National Security and Investment Act 2021 in FTDI Holding, providing guidance for organisations navigating this novel regime while serving as a valuable reference point as public law principles continue to evolve.