The Court of Appeal has handed down its judgment dismissing Royal Mail’s appeal against a decision of the Competition Appeal Tribunal which confirmed Ofcom’s earlier finding that Royal Mail abused its dominant position to exclude its competitor Whistl from the wholesale market for bulk mail delivery services. Ofcom imposed a fine of £50 million for that conduct (the highest fine ever imposed by Ofcom), which was upheld on appeal.
The Court of Appeal concluded that “Ofcom was not required as a matter of law to treat the AEC test [the as-efficient-competitor test relied upon by Royal Mail] as either determinative or highly relevant. In those circumstances Ofcom gave adequate consideration to the AEC test, and the Tribunal did not err in law in so concluding.”
All parties to the proceedings – Royal Mail, Ofcom and Whistl – were represented by leading and junior counsel from Monckton Chambers.
Civil engineering company Northstone was one of a number of operators in competition for a total of eight road resurfacing contracts in Northern Ireland. The eight separate contracts, with a total estimated annual value of up to £52 million, were dealt with under a single procurement competition tendering process, carried out in 2015 by the Department for Infrastructure, (formerly known as the Department for Regional Development – DRD). The challenge by Northstone focused on the Department’s handling and determination of the competitive tender process and in particular the process which was conducted with one bidder, John McQuillan (Contracts) Limited (McQuillans).
The tender criteria meant that price was weighted at 70% and quality 30% and all bidders were ranked accordingly. Northstone was ranked first in one of the eight contracts it tendered for, coming second or third in all the rest. The Department ranked six of McQuillan’s tenders first before entering into private negotiations with the company which culminated in the firm withdrawing two of its bids and then being awarded four of the eight contracts. Northstone challenged the handling of the tendering competition and in July 2020 a High Court judge held that the Department had wrongly given high marks for contracts for which McQuillans did not have the necessary resources. He also identified a lack of transparency, unequal treatment and breach of the principle of non-discrimination in the circumstances whereby that company was able to select which contracts it would deploy its resources to.
In the Court of Appeal, Lord Justice McCloskey upheld the conclusion that the post-tender evaluation and scoring interaction with the operator ranked first for six contract bids, along with resulting award decisions, breached the relevant procurement legislation and that the Department had “engaged in a secret, bilateral and unrecorded process with one of multiple bidders”, and “in consequence, the level playing field was distorted for other bidders.” He further assessed that “to design and operate this competition in such a way as to rank first six contract bids from an operator who had the resources to perform only four contracts at most defies common sense and commercial reality”.
The appeal by the Department for Infrastructure was dismissed.
In the last of a series of challenges brought by the UK’s landfill sector which has generated a decade of litigation in the Administrative Court, Tax Tribunals and the Court of Appeal, Monckton Chambers has secured a further victory on behalf of HMRC.
In a combined judgment handed down by Rose LJ, Nugee LJ and Newey LJ, the Court of Appeal unanimously overturned the decisions of the UT which had decided that substantial refunds of landfill tax were payable across the landfill sector. The Court of Appeal found that material known as “fluff”, even when shredded (as Biffa had done) did not give rise to any legally relevant use, as contended by the sector on the basis of the Court of Appeal’s judgment in Waste Recycling Group v HMRC  EWCA Civ 849,  STC. The FTT had been right to conclude that fluff was merely carefully emplaced waste on which landfill tax was therefore payable. Biffa’s decision to shred that waste made no difference.
The Administrative Court has granted the Campaign Against Arms Trade (CAAT) permission to judicially review the government’s decision to resume issuing licences for the transfer of arms and military equipment to Saudi Arabia for use in the conflict in Yemen.
The decision to resume exports follows a review by the government of the legality of exports, undertaken following previous litigation brought by CAAT which resulted in the Court of Appeal finding in 2019 that earlier licences had been issued unlawfully. This was because the government’s assessment had failed properly to assess whether KSA and its coalition partners had violated the laws of war in a series of incidents investigated by the UN and NGOs and found likely to constitute war crimes. A number of issues in the first challenge remain pending before the Supreme Court.
The Administrative Court has now listed CAAT’s second challenge to be heard by the Divisional Court, at a date still to be determined.
R (Cheung) v Office of Intercollegiate Services
Downing College were an Interested Party
The Administrative Court has refused permission to apply for judicial review to a disappointed applicant to Downing College, Cambridge concerning the decision not to offer him a place.
The Claimant applied to study Land Economy at Downing College in the academic year 2020-2021. Following the College’s refusal decision, he sought entry to the University by way of a challenge to the decision of the Undergraduate Admissions Complaints Panel (which operates under the auspices of the Defendant) which he had asked to consider a complaint he made against the College’s rejection decision. The Panel’s remit was to consider whether Downing College had made a ‘serious procedural error’.
The Claimant’s claim centred on an email which the College was said to have received but not taken into account in rejecting the Claimant. It was not in dispute that the putative email contained the fact that the Claimant was to re-sit to A-level exams. It was disputed that the email was ever received, and there was an issue as to whether it contained ‘updated A-level predictions’.
The Claimant advanced four grounds: (1) the Panel had failed to take into account the ‘updated A-level predictions’ in the email; (2) the Panel had erred in finding or was irrational in determining that the Claimant’s complaint was a challenge to academic judgment; (3) the Panel erred in fact in finding that the Claimant had not provided any evidence of predicted results; and (4) the Panel erred in fact or was irrational in finding that the email would have made no difference.
At an oral renewal hearing, the Administrative Court refused the Claimant permission on all grounds on the basis that the Panel had been entitled to find that Downing had made no ‘serious procedural error’. The Court found, as it did so, that there was “no doubt” that the Panel’s decisions had been “conscientious, expert and reasonable”. The judge did not need to determine the issue of whether decisions of the Panel, or university admissions decisions generally, are susceptible to judicial review, which is left for future challenges.
Imogen Proud acted for the Office of Intercollegiate Services
The Court of Appeal has today handed down its judgment in OT Computers (in liquidation) v Infineon and Micron  EWCA Civ 501. The judgment is the first time an appellate court has considered the operation of s.32(1) of the Limitation Act 1980 (postponement of limitation period in case of fraud, concealment or mistake) in the context of an insolvent claimant. It confirms that a claimant’s insolvency is a relevant factor in the application of the test in s.32(1) and, in particular, may affect the question of what a claimant could with reasonable diligence have discovered.
OT Computers (‘OTC’) was a computer manufacturer before entering into administration in early 2002. Its claim for damages follows on from a decision of the European Commission finding a price-fixing cartel in computer memory (DRAM) which operated from 1998–2002. OTC ceased trading before the cartel’s activity had come to an end, and before any information about its existence had entered the public domain. The Commercial Court ( EWHC 415 (Comm); Foxton J) had found that similar claims by other claimants, all filed six years after the European Commission’s decision, were time barred because those claimants could with reasonable diligence have discovered the facts necessary to bring their claims some time before the publication of the decision. This was largely due to information about a parallel investigation into cartel activity in the United States which the judge had found to be known to and of general interest to purchasers of DRAM such as the claimants. The judge however held that OTC was in a different position, as it had already ceased trading at the time this information became available. What mattered therefore in OTC’s case was (in essence) what a reasonably diligent insolvency practitioner could have discovered. On the facts of the case, the sporadic reports in national newspapers were not sufficient to set time running.
The Court of Appeal (Jackson, Coulson and Males LJJ) agreed with the judge’s approach. The Appellants had contended that the judge had erred because the guidance previously given by the Court of Appeal in Paragon Finance Plc v DB Thakerar & Co  1 All ER 400 that the test for reasonable diligence was ‘how a person carrying on a business of the relevant kind would act’ was binding on the judge and meant that OTC had to be treated, for the purposes of limitation, as if it had continued to carry on its business as a computer manufacturer. The Court rejected this contention as artificial and found that the guidance in Paragon simply did not apply in the context of a claimant that had ceased to carry on a business. It found that while the test in s.32(1) of the Limitation Act was an objective one, it was nonetheless focused on the actual claimant and directed at ensuring that the actual claimant was not disadvantaged by the concealment. The purposes of the objective test was to ensure that ‘claimants in a similar position should be treated consistently. However, a claimant in administration or liquidation which is no longer carrying on business is not in a similar position to claimants which do continue actively in business and it is unrealistic to suggest otherwise’ (at ).
In comments more generally applicable to statutory interpretation, the Court stressed that ‘it is a mistake to read a judgment as if it were a statutory text, especially on a point that was not in issue’ (there was no insolvent claimant in Paragon Finance) (at ). The focus had to be on the language and purpose of the statute itself: ‘To treat the terms of a judgment as laying down a rule of law applicable to circumstances which were never in contemplation runs counter to the whole approach of the common law, which develops flexibly as new factual situations arise. What was said in Paragon Finance has rightly been described as “authoritative guidance”, and no doubt will provide the answer in many cases, but it can be no more than guidance. To treat it as providing an answer to the present case would be to force a square peg into a round hole. What matters are the language and purpose of section 32’ (at ).
On 24 April 2020, the Court of Appeal dismissed Rank’s appeal against HMRC’s refusal to repay a £67m refund of VAT overpaid between 1996 and 2002. The Court upheld, on different grounds, the decision of the Upper Tribunal  UKUT 100 (TCC). The Court rejected Rank’s attempt to circumvent the 4-year limitation period that had time-barred its earlier claims for those sums, made in 2011 under s.80(1) VATA. In 2013, Rank made a new claim for a refund of those sums under s.80(1B), in combination with the set-off provisions of s.81(3) and (3A) and dicta in Birmingham Hippodrome Theatre Trust Ltd v RCC  1 WLR 3867. Rank argued that HMRC should have brought Rank’s out-of-time claim into account when calculating other, earlier, in-time s.80(1) claims; that, by failing to do so, HMRC had underpaid Rank £67m in respect of those in-time claims; and that HMRC’s underpayment of the £67m was to be construed as an overpayment by Rank of the same sum.
The TCC yesterday handed down an important judgment on the ability of interested parties to recover their legal costs in public procurement litigation, including costs incurred to protect commercially confidential information and comply with confidentiality ring provisions.
The ruling arises out of litigation between Bechtel Ltd. and HS2 Ltd. regarding a contract for the construction of Old Oak Common Station, a “super-hub”, which will connect the HS2 line with the West Coast Main line, Heathrow Express and Crossrail. Once completed, Old Oak Common will be one of the largest and most expensive stations ever built in Europe.
Fraser J dismissed Bechtel’s claim ( EWCH 458 (TCC)) and following that judgment, ‘BBVS’, the winning bidder and an interested party to the proceedings, made an application for costs: (1) incurred to comply with the confidentiality ring provisions and protect its own confidential information; and (2) arising out of the plea by Bechtel for a declaration of ineffectiveness.
BBVS was awarded the former category of costs but not the latter. In his judgment, Mr Justice Fraser set out (at paragraph 25) principles “of general application to costs applications by interested parties in procurement challenges”. It would also appear that these principles will also be relevant to public procurement claims commenced in the Administrative Court by way of judicial review.
The EU General Court dismissed an application brought by ViaSat Inc (“ViaSat2”) for the annulment of various decisions taken the European Commission and/or for the Commission’s failure to act regarding the pan-European authorisation of mobile satellite services on the 2GHz frequency band. Those frequencies were awarded, following a competitive tender, to a UK company, Inmarsat Ventures Ltd (“Inmarsat”), who has launched in-flight satellite broadband services to airplanes and passengers travelling across the European airspace. ViaSat, who is a direct competitor to Inmarsat, has brought litigation in a number of States, including the UK , seeking to set aside Inmarsat’s authorisations.
Viasat’s challenge alleges that Inmarsat’s European Aviation Network (EAN), which dynamically uses its satellite with ground components, is not compatible with the conditions of its spectrum licence. It sought to argue that the Commission was obliged to take steps to revoke the award of the frequencies and to intervene to restrain the national competent authorities in all EU States from granting national authorisations to operate the EAN.
The General Court dismissed all of ViaSat’s arguments. The action for failure to act under Article 265 TFEU was inadmissible since the Commission had responded explaining why it was not obliged to adopt the measures sought. The action for annulment was dismissed since the Commission lacked competence, under the EU regulatory framework established for mobile satellite services, to take the measures requested by ViaSat.
Anneli Howard QC, instructed by Jones Day, acted for Inmarsat in its intervention before the General Court in support of the European Commission.
In the first case of its kind, the Western Sahara Campaign UK (“WSCUK”) has brought a legal challenge to the domestic implementation of the UK’s new post-Brexit trade arrangements with Morocco, set out in the UK-Morocco Association Agreement.
The UK-Morocco agreement is controversial in that it purports to apply to products and resources from Western Sahara, over which Morocco claims territorial sovereignty, despite the International Court of Justice having ruled no ties of sovereignty exist.
WSCUK contends that the provisions of the agreement which purport to extend to Western Saharan resources are contrary to the principle of self-determination and treaty law prohibiting the imposition of obligations on a third party to a bilateral treaty. WSCUK contends that the provisions which purport to apply to Western Sahara must be read down or treated as of no legal effect. WSCUK’s case is that domestic implementing legislation giving effect to the UK-Morocco Association Agreement misconstrues the relevant treaty provisions and is therefore ultra vires the Taxation (Cross-border Trade) Act 2018.
This is the first occasion on which the domestic courts have been called upon to interpret one of the UK’s new post-Brexit trade agreements and rule on the legality of the domestic implementation of that agreement by reference to principles of international law.
Conor McCarthy has been instructed by Leigh Day for the Claimant in this case.