INTRODUCTION Contributed by: Charles Brasted and Julia Marlow, Hogan Lovells International LLP
ingly commercial contexts. Perhaps one of the most significant aspects of this trend has been the growing use of administrative and public law to seek substantial financial remedies against governments, regulators and private bodies performing public functions. For example, in the recent UK case of Elliott Associates v The London Metal Exchange [2024] EWCA Civ 1168, in which international investors were seeking significant damages against a privately owned investment exchange on human rights grounds, the courts had to examine closely the impact of the commercial and contractual context on the relevant property rights. The growing willingness of the courts to award damages is not, though, limited to the commercial context (see, for exam - ple, Canada (Attorney General) v Power, 2024 SCC 26, in which the Supreme Court of Canada held that the government could be liable to pay damages for bringing forward legislation that was later found to be unconstitutional). At the same time, courts in a number of juris - dictions have revisited established doctrines to adapt to contemporary challenges. For instance, recent judgments in the United States (Loper Bright Enterprises v Raimondo, 22 U.S. 451 (2024)) and Canada (Auer v Auer, 2024 SCC 36) have redefined standards of review for govern - mental decisions, reducing the deference tradi - tionally afforded to regulators. In response to this, there has been a clear trend of governments accepting a higher level of administrative and public law risk, and adopting a more robust approach to defending their deci - sions. There is also a notable trend of legislative attempts to limit the availability of mechanisms for the courts to review governments’ decisions (see, for example, Mexico’s prohibition on judi - cial review of constitutional amendments).
As administrative and public law litigation becomes more commercial, its practice increas - ingly mirrors that of commercial litigation (see, for example, R (British Gas Trading and E.ON) v Secretary of State for Energy Security and Net Zero [2025] EWCA Civ 209). This includes not only the deployment of extensive evidence but also the growing use of requests for information, disclosure and expert evidence. Conclusion Pressures on governments and regulators to demonstrate change and promote economic growth can lead to calls for the curtailment of checks and balances. However, administra - tive and public law has generally shown itself to be resilient in the face of such calls. That is not least because it serves valuable functions for governments, as well as for the citizens (and businesses) that it exists to protect. First, admin - istrative and public law provides the framework for demonstrably robust decision-making, and for governments and legislators confidently to delegate important decisions to expert regula - tors and other bodies. Secondly, the foresee - ability and protections that it provides are key to attracting and retaining inward investment, and therefore to achieving governments’ growth and change objectives.
7
CHAMBERS.COM
Powered by FlippingBook