Andrew Nixon: Should Tottenham head for the courts, it will only end in defeat

The lawyer's view
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The Independent Football

With West Ham set to be given the green light to head for the Olympic Stadium today, Tottenham will consider heading for the courts. They apparently believe that their stadium proposals are the most beneficial to the local and wider community and that may encourage the club to apply for Judicial Review.

Judicial Review is a law procedure which allows the courts to supervise the exercise of public power. It affords an organisation (such as Spurs) the right to ask for a decision to be reviewed, and ultimately reversed, on the basis that the decision was unlawful. The three key grounds for review are: illegality, irrationality, and/or procedural impropriety.

If Spurs argue that the decision was illegal, the club will need to demonstrate that it was taken by a person or board without the requisite authority or, more realistically, that the decision failed to take into account a number of relevant considerations. If they appeal on the basis of irrationality, the test will be that the recommendation by OPLC was so unreasonable as to defy logic or that the decision was disproportionate to the ultimate aim of the recommendation process. If Spurs submit that there was some sort of procedural impropriety then they will have to show that a statute or act of Parliament has not been adhered to.

So what chance a successful appeal? Very little. Spurs' best case is to argue that the OPLC ignored a number of relevant considerations. The Spurs/AEG bid was premised on the belief that a dual purpose football and entertainment venue would be most economically beneficial. If an appeal was launched they would submit that the board did not properly take into consideration the fiscal element of both bids, and that Spurs had offered to redevelop Crystal Palace, which, in capacity terms, is perhaps a more suitable home for UK Athletics.

The merits of those arguments will depend on how stringent the committee has been during the process. However, Spurs would have to uncover serious impropriety and that seems unlikely. The reality is any appeal would fail on grounds of public policy, and the whole issue of legacy to athletics.

It would be difficult for Spurs to demonstrate that pulling down the Olympic Stadium and replacing it with a single-sport arena would be in the public interest. In fact, had the OPLC endorsed the Spurs bid, it would have faced a far more robust application for Judicial Review from West Ham.

Andrew Nixon is an Associate in the Sports Group at Thomas Eggar. Follow on twitter: @thesportlawyer

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