KASSIE SMITH

MA (Oxon) First class, BCL
CALL DATE: 1995

SUMMARY

MAJOR CASES

C-406/08 Uniplex -v- UK
National Grid plc v Ofgem [2009] CAT 14
Tesco plc v Competition Commission [2009] CAT 6
Edwards v Environment Agency and others [2008] 1 WLR 1587, (2008) Env LR 34
Robins and others v Secretary of State for Work and Pensions [2007] ECR I-1053
OSS Group v Environment Agency and DEFRA [2007] EWCA Civ 611, Times 6 July 2007
Greenpeace v Secretary of State for Trade and Industry (2007) Env LR 29
Argos & Littlewoods v OFT [2006] EWCA Civ 1318
Rutherford & Bentley v Secretary of State for Trade and Industry [2006] UKHL 19, [2006] 4 All ER 577
James E McCabe Ltd v Scottish Courage Ltd [2006] EWHC 538 (Comm)
International Transport Workers' Federation and Finnish Seaman's Union v Viking Lines (2006) 1 Lloyd's Rep 303
Commission v United Kingdom [2005] ECR I-9017
Hutchison 3G (UK) Ltd v Ofcom [2005] CAT 39
JJ Burgess & Sons Ltd v OFT [2005] CAT 25
North Western Health Board v McKenna [2005] ECR I-7631
BT v Ofcom [2005] CAT 20, [2004] CAT 8
Pernod Ricard & Campbell Distillers v OFT [2005] CAT 9, [2004] CAT 10
Wippel v Peek & Cloppenburg GmbH & co KG [2004] ECR I-9483
Blackland Park v Environment Agency [2004] Env LR 33
Alderson v Secretary of State for Trade and Industry [2004] 1 All ER 1148
Landeshauptstadt Kiel v Norbert Jaeger [2003] ECR I-8389
Bellinger v Bellinger [2003] 2 AC 467
Ullah and Lien Do v Secretary of State for the Home Department [2003] 3 WLR 770
Persey & Others v Secretary of State for DEFRA [2003] QB 794

Member of the Treasury A Panel.
Joint Editor of Ward & Smith, “Competition Litigation in the UK”, Sweet & Maxwell, 2005.

COMMERCIAL LITIGATION

Kassie acts for clients in cases before the Commercial Court, Technology and Construction Court (TCC) and the Queen's Bench Division and has experience of ADR and mediation.

COMPETITION LAW

Kassie is recommended as a leading junior in EU and competition law in both Chambers UK and Legal 500. She has extensive experience of litigating competition law issues before the courts and the Competition Appeal Tribunal (CAT).

Recently, she has been:

Acting for the OFT in its investigation into the construction recruitment industry
Acting for a foreign defendant in a damages action brought in the UK arising out of an EC Commission cartel decision
Acting for a construction company under investigation by the OFT for cover pricing
Acting for the defendant in commercial arbitration proceedings involving allegations of breaches of Article 102 EC and the Chapter II prohibition

Reported cases include:

National Grid plc v Ofgem [2009] CAT 14, where she acted for the intervener, Siemens plc, in an appeal against Ofgem's decision to impose a substantial fine on National Grid for its breach of the Chapter II prohibition in the gas metering market
Tesco plc v Competition Commission [2009] CAT 6, where she acted for the intervener, Waitrose, in proceedings challenging the Commission's imposition of the "competition test" on Tesco following its investigation into the groceries' market
Argos and Littlewoods v OFT [2006] EWCA Civ 1318, where she acted for the OFT in the Court of Appeal in its successful defence of its decision to impose substantial penalties on the appellants for their involvement in a price fixing cartel on toys
Pernod Ricard and Campbell Distillers v OFT [2005] CAT 9, [2004] CAT 10, a case involving the OFT's investigation into alleged abuse by Bacardi of a dominant position in the market for white rum. The CAT ruled on important procedural issues including what constitutes an appealable decision and complainants' rights
JJ Burgess v OFT [2005] CAT 25, regarding refusal to supply cremation services by an allegedly dominant crematorium in a small local market. The CAT examined the law on refusal to supply under the Chapter II prohibition
IIB & ABTA v Director General of Fair Trading (2001) Comp AR 62, the first case to be heard by the CAT under the Competition Act 1998. Kassie acted for the Association of British Travel Agents (ABTA) in their successful challenge to the DGFT's clearance of the rules of the General Insurance Standards Council (GISC)

Kassie also acted for the Director General of Fair Trading in the Restrictive Practices Court case of Medicaments. This was the last case heard by the RPC, and (following the Respondents' withdrawal half way through trial) resulted in the abolition of resale price maintenance on over-the-counter medicines: Director General of Fair Trading v PAGB and PATA [2001] 1 WLR 700.

She regularly advises clients on their obligations under Articles 101 and 102 of the Treaty of the Functioning of the European Union, the Enterprise Act 2002, the Competition Act 1998 and the EU and domestic merger regimes. She has experience of dealing with the European and national competition authorities.

Kassie has also advised upon and acted in a number of cases involving competition law and restraint of trade, including:

James E McCabe Ltd v Scottish Courage Ltd [2006] EWHC 538 (Comm)

and in cases involving the interaction between IP law and competition law, including

Telefonaktiebolaget LM Ericsson v (1) Samsung Electronics UK Ltd (2) Samsung Electronics Co Ltd (case settled).

She is joint editor of Ward and Smith, "Competition Litigation in the UK" (Sweet & Maxwell, 2005).

ENVIRONMENTAL LAW

Kassie is recommended as a leading junior in environmental law by Chambers UK and Legal 500. She regularly advises clients on the impact of European and domestic environmental law and appears in cases involving environmental law in the national and European courts.

Cases include:

Edwards v Environment Agency and others [2008] 1 WLR 1587, (2008) Env LR 34: a challenge in House of Lords to the government's implementation of the Environmental Impact Assessment (EIA) Directive, also raising important issues of principle relating to a public body's obligation to consult on "internal" documents
OSS Group v Environment Agency and DEFRA [2007] EWCA Civ 611, Times 6 July 2007: on whether waste derived fuel was waste for the purposes of the EC waste regime under Directive 2006/12/EC
Greenpeace v Secretary of State for Trade and Industry (2007) Env LR 29: Kassie acted for Greenpeace in its successful challenge to the Government's decision to support new nuclear build
Case C-6/04 Commission v United Kingdom [2005] ECR I-9017: defending the UK Government before the ECJ in infraction proceedings alleging inadequate implementation of the Habitats Directive
Blackland Park (Exploration) Limited v Environment Agency [2004] Env LR 33, CA: successfully defending the Environment Agency in the Court of Appeal in a case on the interpretation of the Landfill Directive

EUROPEAN COMMUNITY LAW

Kassie regularly advises clients on all aspects of European law and appears in cases involving European law before the domestic and Community courts.

Recently, she has been

Advising the Department for Business, Enterprise and Regulatory Reform on its implementation of the Agency Workers Directive 2008/104/EC
Advising a group of non-UK resident Equitable Life policy holders on potential claims against the UK government

Cases include:

C-278/05 Robins and Burnett v Secretary of State for Work and Pensions [2007] ECR I-1053: a challenge to the government's implementation of the Insolvency Directive and claim for Francovich damages by a number of former employees of companies, including Allied Steel and Wire, who lost their pension benefits following the companies' insolvency. Kassie acted for the SSWP in the High Court and on the reference to the ECJ
International Transport Workers' Federation and Finnish Seaman's Union v Viking Lines (2006) 1 Lloyd's Rep 303: Kassie acted for the FSU in the High Court and in its successful appeal to the Court of Appeal concerning the question of whether EC Treaty rules on free movement prohibit the taking of industrial action by national unions in protest at the employment of low wage labour
Rutherford & Bentley [2006] UKHL 19, (2006) ICR 785: a challenge to the legislation imposing upper age limits for unfair dismissal and redundancy payments as contrary to Art. 141 of the EC Treaty. Kassie acted for the government at all stages in the litigation from the Stratford Employment Tribunal through to the House of Lords
Alderson v Secretary of State for Trade and Industry [2004] 1 All ER 1148, CA: where (with Nicholas Paines QC) Kassie successfully defended the Secretary of State in a claim by 122 Liverpool refuse collectors for Francovich damages for the misimplementation of the Acquired Rights Directive

Kassie appears regularly before the European Court of Justice. Cases before the ECJ include:

C-340/08 "M" (on Council Regulation (EC) 881/2002 imposing sanctions and freezing orders on the Taliban and Al Quaida)
C-406/08 Uniplex (on when time starts to run for bringing proceedings under the Public Procurement Directive 89/665/EEC)
C-195/08 Rinau (one of the first cases under the ECJ's accelerated procedure on the Brussels IIa Regulation)
C-47/08, 50/08, 51/08 and 52/08 Commission v Portugal, France, Belgium and Luxembourg (acting for the UK as intervener in infraction proceedings against a number of Member States regarding their implementation of the MRPQ Directive as regards notaries)
C-44/08 Akavan AEK (on the collective redundancies Directive 98/59/EC)
C-12/08 Mono Car Styling (on the collective redundancies Directive 98/59/EC)
C-523/07 "A" (on the Brussels IIa Regulation)
C-268/06 Impact v Ministry of Agriculture (concerning the pension rights of civil servants on fixed term contracts)
C-267/06 Tadao Maruko (on same a sex partner's right to a survivor's pension)
C-190/06 Belgacom Mobile v Institut Belge des Services Postaux et des Telecommunications (concerning the Community rules on allocation of the radio spectrum to mobile network operators)
C-437/05 Vorel v Cesky Krumlov Hospital (on the application of the Working Time Directive to pay)
C-307/05 Del Cerro Alonso [2007] ECR I-7109 (on the application of the Fixed Term Workers Directive to pa
C-278/05 Robins and Burnett v Secretary of State for Work and Pensions [2007] ECR I-0000 (concerning the UK's implementation of the Insolvency Directive as it applies to pension rights)
C-294/04 Sarkatzis Herrero v Imsalud [2006] ECR I-1513 (on maternity leave)
C-438/04 Mobistar v Belgian Institute for Postal Services and Telecommunications [2006] ECR I-6675 (concerning the Community rules on number portability)
C-484/04 Commission v United Kingdom [2006] ECR I-0000 (defending the UK Government in infraction proceedings alleging inadequate implementation of the Working Time Directive)
C-191/03 North Western Health Board v McKenna [2005] ECR I-7631 (discrimination on the grounds of pregnancy related illness)
C-6/04 Commission v United Kingdom [2005] ECR I-9017 (defending the UK Government in infraction proceedings alleging inadequate implementation of the Habitats Directive)
C-313/02 Wippel v Peek & Cloppenburg GmbH & Co KG [2004] ECR I-9483 (concerning equal pay and casual workers)
C-28/03 Epikouriko Kefalaio v Minister for Development [2004] ECR I-8533 (regulation of insolvent insurance companies under Directives 73/239 and 79/267)
C-340/01 Carlito Abler v Sanrest Grosskuechen [2003] ECR I-14023 (regarding the scope of the Acquired Rights Directive)
C-151/02 Landeshauptstadt Kiel v Dr Med Norbert Jaeger [2003] ECR I-8389 (regarding the application of the Working Time Directive to doctors on call)
C-340/01 Carlito Abler v Sanrest Grosskuechen [2003] ECR I-14023 (regarding the scope of the Acquired Rights Directive)
C-151/02 Landeshauptstadt Kiel v Dr Med Norbert Jaeger [2003] ECR I-8389 (regarding the application of the Working Time Directive to doctors on call)
C-37/00 Weber v Universal Ogden Services [2002] ECR I-2013 (on the application of the Brussels Convention to employment disputes)
C-442/00 Caballero v FOGASA [2002] ECR I-11915 (concerning the application of the Insolvency Directive to post-dismissal remuneration)
C-172/99 Oy Liikenne v Pekka Liskojarvi and Pentti Juntunen [2001] ECR I-745 (regarding the application of the Acquired Rights Directive to a public procurement situation)
C-234/98 Allen v Amalgamated Construction Co Ltd [1999] ECR I-8643 (on the application of the Acquired Rights Directive to transfers between companies in the same corporate group)

PROCUREMENT LAW

Kassie has experience of litigating procurement issues in the UK and European courts and on advising public and private bodies on such issues.

She has recently been:

Advising a central government department on termination of/ change to a high value, ongoing procurement process
Acting for the UK in Case C-406/08 Uniplex -v- UK concerning the question of the time from which limitation periods may start to run regarding procurement challenges
Advising a local authority on the interaction between environmental law and procurement law
Advising a local authority on issues, including TUPE matters, arising out of an ongoing procurement process
Advising a private body on issues arising from the re-organisation of public sector responsibilities following a procurement process

Cases include:

WD Meats Ltd v DEFRA (proceedings in the High Court of Northern Ireland relating to a tendering procedure in for the provision of slaughtering services in respect of cattle under the Over Thirty Months Scheme ("OTMS") arrangement - case settled).
R v Secretary of State for Health ex p UNISON (acting for the intervener, DHL, in judicial review proceedings challenging the Secretary of State's procurement process for the contracting out of NHS logistical and buying functions)
C-406/08 Uniplex (ongoing proceedings in the ECJ regarding the question of when time for bringing proceedings under Directive 89/665/EEC starts to run).

PUBLIC LAW

Kassie is recommended as a leading junior in public and administrative law by Legal 500. In 2002, Kassie was appointed to the Attorney General's B Panel of Treasury Counsel. She acts for claimants and respondents and has extensive experience before the High Court and the Court of Appeal and has been instructed in numerous applications for judicial review. As well as general public law, her particular areas of expertise include environmental law.

TELECOMS & UTILITIES REGULATION

Kassie has considerable experience of litigating telecoms cases in the UK and in other jurisdictions. She has recently been

Advising a telecoms company on a possible appeal to the CAT against a decision of Ofcom
Advising HKBN on submissions to the Hong Kong telecoms regulator, OFTA
Advising a mobile operator on submissions to Ofcom involving issues of state aid

Cases before the Competition Appeal Tribunal (CAT):

Hutchison (3G) Ltd v Ofcom [2005] CAT 39: an appeal against Ofcom's designation of "3" as having significant market power (SMP) in the market for mobile voice call termination on its network
BT v Ofcom [2004] CAT 8: the first appeal to the CAT under the Communications Act 2003 which concerned the interpretation and application of the Interconnection Directive to the provision of Radio Base Station (RBS) backhaul circuits

Cases before the European Court of Justice (ECJ) include:

C-190/06 Belgacom Mobile v Institut Belge des Services Postaux et des Telecommunications: concerning the Community rules on allocation of the radio spectrum to mobile network operators
C-438/04 Mobistar SA v Institut Belge des Services Postaux et des Telecommunications [2006] ECR I-6675: concerning the Community rules on number portability

She has also acted for Pacific Century Cyberworks (PCCW) in two disputes in Hong Kong. The first was a substantial claim in the Commercial Court regarding hijacking of incoming international calls. The second was an appeal to the Competition Appeal Board regarding predatory pricing in the business direct exchange lines (BDEL) services market.

Kassie also has experience of utilities regulation, particularly regulation of the electricity and gas industries. She has acted for and advised both regulated companies and regulators on electricity trading arrangements (NETA and BETTA) in Great Britain.

She has recently been advising the Office of the Rail Regulator on the interaction between EC and international law on infrastructure and track access agreements.

PUBLICATIONS

Kassie is author of the chapter on vertical restraints in Bellamy & Child, European Community Law of Competition (6th ed., 2008).
Joint Editor of Ward & Smith, "Competition Litigation in the UK" (Sweet & Maxwell, 2005).