Steven Gee KC – British Tax Review – R. (on the application of Cobalt Data Centre 2 LLP) v HMRC: a Cobalt white elephant

This material was first published by Thomson Reuters in the British Tax Review as “R. (on the application of Cobalt Data Centre 2 LLP) v HMRC: a Cobalt white Elephant” [2023] B.T.R. 24 and is reproduced by agreement with the publishers.


Section 298(1) of the Capital Allowances Act 2001 (CAA 2001) offered taxpayers Enterprise Zone allowances (EZAs) as an inducement to taking on the financial risks of newbuild industrial developments in disadvantaged areas, without a tenant. It extended their availability for a further 10 years after expiry of the 10-year life of an enterprise zone (EZ), provided that the qualifying “expenditure is incurred under a contract entered into within” the first 10 years (“the proviso”). According to the Court of Appeal1 changes made to a development, resulted in two building contracts with the claimed expenditure incurred under the second, being a “separate” contract
made too late to qualify for EZAs. The three judgments are not consistent with each other, and decided by different routes that the changes by their nature and extent were so different from the initial plan that they resulted in no EZAs. Taxpayers, having built what parliament wanted, are left to take the losses without the safety net of the statutory inducement. If the offer made to taxpayers was to be restricted, this should as a matter of certainty and fairness have appeared clearly in the statutory words. The decision may affect many other developments by taxpayers who ran financially unviable risks. Investors include those who have died leaving dependants, are in retirement, and on pensions…”

To read full case note please click here.

Distilling Disputes Series

Presented by Fried Frank’s Disputes team, the Distilling Disputes series uses data and graphics to draw out the strategic issues which clients face when litigating disputes in the English Courts and in international commercial and investment arbitration. The seventh edition provides an overview and insights into the pre-emptive remedies available in the English Courts. These are of particular relevance in the context of the pursuit of fraud claims, and this article highlights the toolbox of remedies available to potential claimants, including Freezing Orders, Disclosure Orders and Search and Imaging Orders, and other ancillary powers available to the English Courts.

This edition is co-authored with Steven Gee KC.

To read full article please click here.

Mark Brealey KC featured in Lawyer Monthly

Mark Brealey KC has been featured in this months edition of Lawyer Monthly – ‘Delivering Excellence in Competition Law.’

‘Navigating the intricacies of competition law has always been a challenging task, and one that has only grown more complex in the UK and internationally since the completion of Brexit. With new authority over infringement decisions now granted to the Competition and Markets Authority (CMA), specialist knowledge is required to properly litigate competition law.’

‘This month we have the pleasure of hearing from Mark Brealey KC, an expert in the field of competition law who has represented the likes of Pfizer and Ryder in numerous consequential cases. In this exclusive interview, he speaks in depth on his journey into law and offers unique insights on how the field of competition law continues to develop today.’

To read the full article please click here.

Michael Bowsher KC – The Government Contractor – No Man Is An Island In Defense Procurement: Developments In EU Defense Procurement Regulation And Its Implications For The U.S.

Introduction – The Russian invasion of Ukraine and the United Kingdom’s exit from the European Union have focused minds on the EU’s role as a defense actor. In the context of defense procurement, this includes whether the EU should itself co-fund cooperative programmes with Member States, what can be commonly procured, and how. The U.S. faces the obvious dilemma of needing to be seen to encourage EU initiatives which, if successful, would reduce reliance on the U.S. within the North Atlantic Treaty Organization (NATO) while also securing U.S. industry’s continued access to the European defense market(s). We explore the latest EU initiatives with a particular emphasis on implications for the U.S. For a useful introduction see Luke Butler, “Developments and Directions in EU Defense Procurement Regulation, and implications for the Defense Relationship between the EU and the UK.”

The article co-authored by Michael Bowsher KC, was published by Thomson Reuters.

To read full article please click here.

The Procurement Bill – A series of briefings

Monckton Chambers recently co-hosted an event with Freshfields Bruckhaus Deringer on how the Procurement Bill proposes to reform public procurement law in the UK.

Following the event we are publishing a series of briefings on the Bill – the first of which by Alexia Millet and Azeem Suterwalla, considers the provisions of Bill relating to contract performance.

The second briefing, by Elizabeth Forster and Michael Bowsher QC, looks at how the Procurement Bill would change the rules relating to exclusion and debarment.

In the third briefing, Alexia Millett and Azeem Suterwalla consider the changes to the rules on modifying existing contracts.

In the fourth briefing, Tom Hutchison and Ewan West address the provisions in the Bill relevant to direct awards and their likely effect.

You can view the briefings here:

George Peretz QC – Tax Journal – Invention is the mother of ‘necessity’: the Northern Ireland Protocol Bill

The Ireland/Northern Ireland Protocol was at the heart of the Withdrawal Agreement negotiated with the EU in 2019 and was, as required by that agreement, incorporated into UK law. It has important tax implications, especially in the areas of VAT, customs duties and state aid. The Northern Ireland Protocol Bill would remove most of the Protocol from UK law, despite the UK’s treaty obligation. The government claims that the principle of ‘necessity’ gives a legal basis for that action in international law, but its argument is unconvincing. The Bill is likely to run into considerable opposition in Parliament, especially in the House of Lords. And if passed it would threaten a trade war with the EU with major implications.

Read the article.

Christopher Vajda QC – EE Elgaronline – The concept of restriction of competition: time for a rethink?

Abstract: Following the end of the transition period after the UK’s exit from the European Union, the UK courts and the Competition Tribunal may, in certain circumstances, depart from the pre-exit case law of the EU courts. This article considers, by reference to the Court of Justice’s judgments in Generics (UK) v. Competition and Mar-kets Authority and Budapest Bank and the Tribunal’s Supplementary Judgment in Generics (UK) v. Competition and Markets Authority, whether it would be appropriate for the UK courts and the Tribunal to depart from the case law on when an agreement has the object of restricting competition by object, so as to develop a more holistic approach to the concepts of a restriction of competition ‘by object’ and ‘by effect’, by considering together the object and effect of an agreement.

The article was published on Elgaronline on 29 April 2022.

To read full article please click here.

Professor Panos Koutrakos – Lexis®PSL EU Law – The European Court of Justice affirms the legality of mechanism that restricts access to EU budget for  Member States that violate the rule of law (Hungary v Parliament and Council, Poland v Parliament and Council)

EU Law analysis: These judgments uphold the legality of the rule of law conditionality mechanism laid down in Regulation 2020/2092. Under the relevant rules, the Council may restrict access to the EU budget (for instance by suspending payments) where a Member State violates the rule of law in a manner that affects or seriously risks affecting the sound financial management of the EU budget or the protection of the financial interests of the EU in a sufficiently direct manner. Central to the judgments is the status of the rule of law as one of the founding values of the EU under Article 2 TEU. The judgments are of practical significance given the disputes about judicial independence in Poland (as well as the recent judgment of the Polish Constitutional Tribunal rejecting the primacy of EU law in relation to the organisation of the judiciary) and rule of law and corruption allegations in Hungary. In fact, the European Parliament has already launched an action against the Commission for failure to rely on the Regulation prior to the two judgments (Case C-657/21).

The full article, written by Professor Panos Koutrakos, was first published by Lexis®PSL on 14 March 2022 and can be read here.