NICHOLAS PAINES QC

QC MA (Oxon) EC law at the Université Libre de Bruxelles (Licence Spéciale en Droit Européen)
CALL DATE: 1978 SILK: 1997

SUMMARY

Nicholas Paines QC has one of the most extensive competition and EU law practices at the Bar, stretching over more than 20 years and involving almost 100 cases in the European Court of Justice as well as appearances in nearly every type of British court and tribunal. His practice covers a broad range of English and EU law including administrative law, agriculture, competition, customs, employment, human rights, public procurement, sex discrimination, social security law, state aid and VAT. He is also a member of the Bar of Northern Ireland.

He sits as a Deputy High Court Judge in the Administrative Court, as a Deputy Judge of the Upper Tribunal (Administrative Appeals Chamber) and the First-tier Tribunal (Tax Chamber) and as a Recorder in the Crown Court.

Nicholas has been involved in many landmark ECJ cases, from the Sunday Trading cases in the late 1980s through Coloroll and subsequent cases on equal pay and pensions and recently an important series of cases on the boundaries of the European Union's power to harmonise national laws.

Significant cases in which he has appeared in British courts and tribunals include Seymour Smith in the House of Lords, in which the Lords changed their previously laid down approach to indirect sex discrimination in social policy legislation. He also has the distinction of having both successfully defended the UK government against a claim for damages for breach of EU law in Alderson v Secretary of State for Trade and Industry and having obtained judgment for damages against the government for breach of EU law in Byrne v Secretary of State for Transport.

RECENT CASES

Nicholas's recent appearances range from the Employment and Tax Tribunals to the High Court, Court of Appeal and ECJ. He is currently acting for the Secretary of State for Health in defending the judicial review brought by the UK tobacco industry against the provisions in the Health Act 2009 that will prohibit retail displays of tobacco, and has also acted for the Secretary of State defending proceedings brought against the prohibition of cigarette vending machines, in which the High Court upheld the prohibition; the judgment of the Court of Appeal is awaited.

In the European Court:

Homawoo v GMF Assurances SA (pending) on the interpretation of the Rome II Regulation on the law applicable to non-contractual obligations.
Coleman v Attridge Law on whether the Framework Directive on discrimination requires the United Kingdom to prohibit discrimination against a person because of their relationship to a disabled person.
Cadman v Health and Safety Executive decided that an employer is not automatically obliged to justify having an incremental pay system even though it favours men more than women.
United Kingdom v European Parliament and EU Council tested the limits of the power of the EU Council to harmonise national law.
In European Parliament v Council the United Kingdom successfully intervened in litigation between the European institutions about their powers to legislate.

In British courts and tribunals:

Nicholas acted for the Secretary of State for Health in R (Sinclair Collis Ltd) v Secretary of State for Health [20099] EWHC [2010] EWHC 3112 (Admin) concerning the prohibition of cigarette vending machines by Regulations under the Health Act 2009.
He acted for the claimant in Byrne v Motor Insurers Bureau and Secretary of State for Transport [2007] EWHC 1268 (QB) and obtained an order for damages against the Secretary of State for Transport for breach of EC law because the Motor Insurers Bureau compensation scheme for victims of untraced drivers did not comply with the EC Motor Insurance Directive. The decision was upheld by the Court of Appeal [2008] EWCA Civ 574.
Harland & Wolff Pension Trustees v Aon Consulting Ltd [2006] EWHC 1778 (Ch) concerned the correct method of 'equalising' pension ages in a company pension scheme so as comply with EC equal pay law.
Matthews v Kent Fire Authority [2006] UKHL 8 was the first case to reach the higher courts on the Regulations implementing the Part-time Workers Directive.
London Borough of Barnet v Ismail [2006] EWCA Civ 383 resolved a conflict of County Court authority on the immigration status of EU citizens.
R v Joy and Bossom [2006] EWCA Crim 1489 [2006] EuLR 1131 concerned the compatibility of the UK's fishing quotas for small vessels with EU law.
Manson v Ministry of Defence [2005] EWCA Civ 1678 reasserted the power of employment tribunals to apply EC law.
R (Denfleet International) v NHS Purchasing and Supply Agency [2005] EWHC 55 (Admin) concerned the extent of a contracting authority's power to alter the terms of a public procurement exercise.

ADMINISTRATIVE AND PUBLIC LAW

Nicholas has frequently appeared in public law cases in the Administrative Court, where he also sits as a Deputy High Court Judge, and on appeal, particularly involving EU and ECHR issues.

His cases have included:

R (Imperial Tobacco and others) v Secretary of State for Health (pending) prohibition of retail displays of tobacco products: compatibility with EU law and ECHR
R (Sinclair Collis) v Secretary of State for Health [2010] EWHC 3112 (Admin) (pending C A) prohibition of cigarette vending machines: compatibility with EU law and ECHR
R (Denfleet International) v NHS Purchasing and Supply Agency [2005] EWHC 55 (Admin) public procurement Directives
R (Manson) v Ministry of Defence [2005] EWCA Civ 1678 power of employment tribunals to apply EC law
R (Freeserve.Com Plc) v Customs & Excise Commrs & Anor [2003] EWHC 2736 (Admin) ability of taxpayer to challenge treatment of another taxpayer
R (Swedish Match) v Secretary of State for Health and R (British American Tobacco) v Secretary of State for Health where the High Court referred questions on the validity of EU tobacco control measures to the ECJ
R v MAFF ex p Hamble Fisheries [1995] 2 All ER 714 legitimate expectation in domestic and EU law
R v Secretary of State for National Heritage ex p Paul Getty Foundation (1994) the 'Three Graces', rationality, legitimate expectation and state aid

EMPLOYMENT LAW

High profile employment law cases, particularly in the area of discrimination and equal pay, have been an important area of Nicholas's practice for more than ten years. The Preston litigation, on which he has worked since 1995, is the largest test case litigation in the employment field, estimated to involve some 60,000 claims. He has worked on the case form the outset, involving appearances in the Employment Tribunal (several), the Employment Appeal Tribunal (twice), the Court of Appeal (twice), the House of Lords (three times) and the European Court.

Nicholas was also involved in Seymour-Smith, which changed the law on objective justification, both in the House of Lords and in the ECJ. Recently he has appeared in the ECJ in the Cadman case on justifying incremental pay systems and in Coleman on disability discrimination by association.

Significant employment cases in which Nicholas has been involved are:

Coleman v Attridge Law [2008] ECR I-5603 discrimination 'by association' on grounds of disability
Cadman v Health and Safety Executive [2006] ECR I-9583 sex discrimination in incremental pay systems
Powerhouse Retail v Burroughs ('Preston No 3') [2006] UKHL 13 time limits for pension claims
Matthews v Kent Fire Authority [2006] UKHL 8 part-time workers Directive
R (Manson) v Ministry of Defence [2005] EWCA Civ 1678 power of employment tribunals to apply EC law
Allonby v Accrington & Rossendale College [2004] ECR I-873 indirect sex discrimination in public sector pension scheme
KB v NHS Pensions Agency [2004] ECR I-541 sex discrimination and human rights - transsexual partner
Alderson v Secretary of State for Trade and Industry [2003] EWCA 1767 implementation of Acquired Rights Directive
Parliamentary Commissioner v Fernandez [2004] ICR 123 sex and race discrimination
Lawrence v Regent Office Care [2002] ECR I 7325 equal pay after transfer of employment
Preston v Wolverhampton Healthcare [2002] ECR I-3201 a leading case on equal pay and occupational pensions
Britannic Asset Management v Pensions Ombudsman [2002] EWCA Civ 1405 powers of pensions ombudsman

EUROPEAN LAW

Nicholas has extensive experience in all areas of EC law including particularly agriculture, competition, customs, employment, free movement of goods, pensions, sex discrimination, social security, state aids and VAT. He has been involved in nearly 100 cases before the European Court and has argued points of EC law in almost every type of English court and tribunal.

Nicholas has advised government departments and private clients on a number of EC and English public law issues.

Nicholas is treasurer and a former chairman of the Bar European Group, former joint general editor of the Common Market Law Reports and has contributed to Bellamy & Child Common Market Law of Competition (4th Ed) and Vaughan, Law of the European Communities.

Cases he has handled in the Court of Justice (among others the Sunday Trading series of cases and Coloroll and subsequent pensions cases) include:

Homawoo v GMF Assurances SA (pending) interpretation of the Rome II Regulation on non-contractual liability
Coleman v Attridge Law [2008] ECR I-5603 discrimination 'by association' on grounds of disability
Cadman v Health and Safety Executive [2006] ECR I-9583 sex discrimination in incremental pay systems
United Kingdom v European Parliament and EU Council [2006] ECR I-3771 power to set up EU agencies
European Parliament v Council [2006] ECR I-3733 power to create European co-operative society
Commission v United Kingdom [2006] ECR I-1213 VAT on fine art imports
United Kingdom v European Parliament and EU Council [2005] ECR I-10553 power to harmonise national law
Arnold Andre v Landrat [2004] ECR I-11825 and R (Swedish Match) v Secretary of State for Health [2004] ECR I-11893 power of EU to prohibit a tobacco product
Allonby v Accrington & Rossendale College [2004] ECR I-873 indirect sex discrimination in public sector pension scheme
KB v NHS Pensions Agency [2004] ECR I-541 sex discrimination and human rights - transsexual partner
Booker Aquaculture v Scottish Ministers [2003] ECR I 7411 human rights - compensation for destruction of diseased fish stocks
Capespan International plc v Commissioners of Customs and Excise [2003] ECR I 597 customs duties on imports of fruit
R v Secretary of State for Health ex p British American Tobacco [2002] ECR I-11453 validity of tobacco labelling directive
Lawrence v Regent Office Care [2002] ECR I 7325 equal pay after transfer of employment
Khalil [2001] ECR I-7413 social security, stateless persons
Ruhr [2001 ECR I-8225 social security, non-community national
R v Secretary of State for Health ex parte Imperial Tobacco [2000] ECR I-8599 validity of tobacco advertising directive)
Preston v Wolverhampton Healthcare [2000] ECR I-3201 pension claims: time limits
Card Protection Plan [1999] ECR I-973 VAT
R v Secretary of State ex parte Seymour-Smith and Perez [1999] ECR 623 employment, sex discrimination
Levez v TH Jennings [1998] ECR I-7835 equal pay claims: time limits
Atkins v Wrekin District Council [1996] ECR I-3633 sex discrimination, bus passes
Coloroll Pension Trustees Ltd v Russell [1994] ECR I-4389 pensions
Phil Collins [1993] ECR I-5145 copyright
Torfaen Borough Council v B & Q [1989] ECR 3851 etc: Sunday trading

Nicholas has argued points of European law in many notable cases in the English courts, including:

R (Sinclair Collis) v Secretary of State for Health [2010] EWHC 3112 (Admin) prohibition of cigarette vending machines: compatibility with EU and ECHR law
Byrne v Motor Insurers Bureau and Secretary of State for Transport [2008] EWCA Civ 574 damages awarded for breach of EC law by Secretary of State for Transport
Harland & Wolff Pension Trustees v Aon Consulting Ltd [2006] EWHC 1778 (Ch) methods of equalising pension ages in company pension schemes
Matthews v Kent Fire Authority [2006] UKHL 8 Part-time Workers Directive
London Borough of Barnet v Ismail [2006] EWCA Civ 383 immigration control of EU citizens)
Manson v Ministry of Defence [2005] EWCA Civ 1678 power of employment tribunals to apply EC law
Denfleet International v NHS Purchasing and Supply Agency [2005] EWHC 55 (Admin) public procurement Directives
Hockenjos v Secretary of State for Social Security [2004] EWCA Civ 1749 sex discrimination in social security
Alderson v Secretary of State for Trade and Industry [2003] EWCA Civ 1767 successfully resisted claim for damages for breach of EC law
Secretary of State for Social Security v Walter [2001] EWCA Civ 1913 sex discrimination in social security
Allonby v Accrington College [2001] ICR 1189 equal pay
Hockenjos v Secretary of State for Social Security [2001] ICR 966 sex discrimination in income support scheme
Preston v Wolverhampton Healthcare [2001] 2 AC 455 pension claims: time limits
R v Secretary of State for Employment ex p Seymour-Smith [2000] ICR 244 HL sex discrimination, unfair dismissal
U v W [1998] Fam 29 freedom to provide services, human fertilisation
Iberian v BPB [1997] ICR 164 competition law: effect in national court of EC Commission decision
R v MAFF ex p Hamble Fisheries [1995] 2 All ER 714 (legitimate expectation);
R v Secretary of State for National Heritage ex p Paul Getty Foundation (1994) the 'Three Graces', rationality, legitimate expectation and state aid
R v British Coal ex p Vardy [1993] ICR 720 pit closures

HUMAN RIGHTS LAW

Nicholas has advised on the European Convention on Human Rights and the Human Rights Act and has argued points of human rights law in various cases including

R (Imperial Tobacco and others) v Secretary of State for Health (pending) prohibition of retail displays of tobacco products: compatibility with right to freedom of expression
R (Sinclair Collis) v Secretary of State for Health [2010] EWHC 3112 (Admin) (pending C A) prohibition of cigarette vending machines: compatibility with right to respect for property
Arnold Andre v Landrat [2004] ECR I-11825 and R (Swedish Match) v Secretary of State for Health [2004] ECR I-11893 compatibility with right to property of EU legislation prohibiting a tobacco product
Booker Aquaculture and Hydro Seafood v The Scottish Ministers [2003] ECR I-7411 whether right to compensation for destruction of diseased fish stocks
R v Secretary of State for Health ex p British American Tobacco [2002] ECR I-11453 compatibility of tobacco labelling directive with right to freedom of expression
R v Secretary of State ex parte Imperial Tobacco and Germany v Council and Parliament [2000] ECR I-8599 freedom of expression, tobacco advertising
Bavin v NHS Pensions Agency [1999] ICR 1192 right of transsexual partner to widower's pension benefits
U v W [1998] Fam 29 right to receive fertility treatment abroad
Hodgson v Commissioners of Customs and Excise right to a fair trial, customs appeals

PUBLIC PROCUREMENT

Nicholas regularly advises and represents parties to public procurement disputes, his competition law expertise enabling him to deal confidently with any related issues of state aid. He represented the NHS Purchasing and Supply Agency in one of the first pieces of public procurement litigation, R (Denfleet International Ltd) v NHS Purchasing and Supply Agency [2005] EWHC 55 (Admin) concerning the procurement by the NHS of schizophrenia medications.

He has advised national and multinational tenderers and contractors, local authorities, public sector bodies and central government on a range of matters including

urban regeneration schemes
subsidised public transport
town centre redevelopment
infrastructure projects
works procurement
public works concessions
social housing
PFI procurement
construction projects
building maintenance
waste processing
roadside car hire
implied contractual obligations
misfeasance claims
state aid

VAT & CUSTOMS LAW

Nicholas has a long pedigree in important VAT and customs duty cases. His track record includes leading VAT cases in the Court of Appeal, House of Lords and ECJ such as Card Protection Plan (ECJ and House of Lords), Plantiflor (House of Lords), CR Smith Glaziers (House of Lords) and Bournemouth Symphony Orchestra (Court of Appeal).

He is also one of the few indirect tax specialists at the Bar who specialises in customs duty litigation as well as VAT.

His VAT and customs experience includes:

collection of anti-dumping duties
customs classification
exemptions: culture, financial services, medical services, sport, welfare
input tax on motor cars
input tax deduction
partial exemption
payment by voucher
place of supply
reward schemes
single or multiple supplies
tour operators margin scheme
VAT on importation

Other cases include:

Glaxosmithkline v HMRC [2010] UKFTT 418 (TC) zero-rating, Lucozade Sport Drink (appeal pending)
HMRC v Baxi [2007] EWCA Civ 1378 reward schemes
Bournemouth Symphony Orchestra v HMRC [2006] EWCA Civ 1281 VAT exemption for cultural services
MBNA Europe Bank v HMRC [2006] EWHC 2326 (Ch) VAT on financial services, partial exemption
International Life Leisure v HMRC [2006] UKVAT V19649 VAT on holiday accommodation
Commissioners of Customs and Excise v Elm Milk Ltd [2006] EWCA Civ 164 input tax block on motor cars
Commission v United Kingdom [2006] ECR I-1213 VAT on fine art imports
MyTravel [2005] ECR I-8477 tour operators margin scheme
Kingscrest and Montecello [2005] ECR I-4427 VAT exemption for welfare services
Smithkline Beecham [2005] ECR I-415 customs classification, nicotine patches
Unterpertinger v Pensionversicherungsanstalt [2003] ECR I-13859 VAT exemption for medical care
Messenger Leisure Developments v HMRC [2005] EWCA Civ 648 VAT exemption for golf clubs
Capital One Bank v HMRC [2005] UKVAT V19238 VAT on financial services
d'Ambrumenil v Commissioners of Customs and Excise [2003] ECR I 13989 VAT exemption for medical care
Capespan International plc v Commissioners of Customs and Excise [2003] ECR I 597 customs duties on imports of fruit
Upton v Commissioners of Customs and Excise [2002] EWCA Civ 520 input tax block on motor cars
Commissioners of Customs and Excise v Plantiflor [2002] UKHL 33 VAT on mail order transactions
Commissioners of Customs and Excise v CSC [2001] ECR I 10237 scope of exemption for financial services
CR Smith Glaziers v Commissioners of Customs and Excise [2003] UKHL 7 validity of VAT Regulations
Zoological Society of London v Commissioners of Customs and Excise [2002] ECR I-3353 VAT exemption for cultural services
D v W [2000] ECR I-6795 VAT exemption for medical services
Card Protection Plan v Commissioners of Customs and Excise [1999] ECR I-973 and [2001] 2 WLR 329 (HL) single and multiple supplies
Customs and Excise Commissioners v FDR [2000] EWCA Civ 216 exemption for financial services
United Norwest Co-Operatives v Commissioners of Customs and Excise [1999] EWCA Civ 1616 retail schemes
Watchorn v Commissioners of Customs and Excise 2000, collection of anti-dumping duties)
Gregg v Commissioners of Customs and Excise [1999] ECR I-4947 (VAT, exemption, care homes)

COMPETITION LAW

Nicholas Paines advises on domestic and EC competition law issues and represents parties before the EC Commission, the European Court and the Competition Commission.

He formerly appeared in a number of cases before the Restrictive Practices Court, including Director General of Fair Trading v Buckland [1990] 1 WLR 920 (contempt, liability of company director); In re Newspapers [1994] ICR 200 (contempt of RP Court) and In re Ready Mixed Concrete [1996] Tr LR 78 (contempt of RP court) and has been involved in High Court litigation concerning the Restrictive Trade Practices Act.

Nicholas has advised and represented parties to proceedings before the European Commission and has appeared in several competition cases in the European Court, including British Leyland v Commission [1986] ECR 3263, Meng [1993] ECR I-5751, Bundesanstalt fuer den Guterfernverkehr v Gebrueder Reiff [1993] ECR I-5801, Ohra [1993] ECR I-5851, Germany v Delta Schiffahrts [1994] ECR I-2517 and Cali v Porto di Genova [1997] ECR I-1547.

He appeared in the High Court in Iberian v BPB [1997] ICR 164 concerning the effect in a national court of an EC Commission decision.

Nicholas has advised and represented parties in several monopoly and merger references before the MMC and Competition Commission.

He is a member of the Joint Working Party of the Bars and Law Societies of the UK on competition law.