Jen Coyne succeeds for Appellant in Court of Appeal ruling against Uber

An attempt by Uber Britannia Limited to force private hire vehicle operators outside of London to contract directly with their customers, which threatened to upend industry structure by effectively abolishing the agency business model, has today been overturned by the Court of Appeal.

The Court discharged a declaration made by Mrs Justice Foster in July 2023 that, in order to operate lawfully under the Local Government (Miscellaneous Provisions) Act 1976 (the “Act”), operators are required to directly contract with passengers to provide the journey the subject of the booking.

Two operators, D.E.L.T.A. Merseyside Limited and Veezu Holdings Limited, appealed on the basis that the Act could not be interpreted as imposing an obligation on operators to so contract. They successfully argued that the Act addresses all contracts within a single provision, section 56, which deems there is a contract with the operator, regardless of which person has directly contracted with the customer. It made no difference that a requirement on operators to contract had been found to apply in London (in R (United Trade Action Group Ltd) v Transport for London [2021] EWHC 3290 (Admin)). The Private Hire Vehicles (London) Act 1998 was drafted in materially different terms.

One difference between an obligation to contract versus a deemed contract is in the potential fiscal consequences. If operators are bound to contract then they would be required to charge their passengers VAT. HMRC had previously launched a public consultation on the tax impact of the High Court’s declaration. It remains to be seen whether this will now be withdrawn.

Jen Coyne acted for the successful Appellant D.E.L.T.A. Merseyside Limited, led by Philip Kolvin KC and instructed by Layla Barke-Jones of Aaron and Partners LLP.

The Court of Appeal’s judgment is available here.

Jack Williams cited by UK Supreme Court

Blog posts written by Jack Williams on the topic of the content of retained EU law have been extensively cited and discussed by the UK Supreme Court in its recent judgment in Lipton v BA Cityflyer Ltd [2024] UKSC 24.

Although ultimately taking a different analytical route, Lord Burrows (as part of the majority) kindly described those posts as “carefully and tightly reasoned”. Lord Sales and Lady Rose (with whom Lady Simler agreed) likewise discussed the blog posts, albeit again reaching a different view after engagement with them. Lord Lloyd-Jones, dissenting, also cited the blog posts, but this time tracked and agreed with the reasoning in them.

Despite the differences in approach, it is most gratifying and encouraging that the Justices of the Supreme Court read and engaged so extensively with blog posts published on Monckton Chambers’ UK-EU Relations law blog, available here.

The judgment can be found here and the relevant blog posts are here and here.

Court of Justice of the EU upholds EU Commission Decisions in Servier “Pay for Delay” appeals

On 27 June, the Court of Justice of the EU published its judgments on the various appeals to the Court of Justice relating to the European Commission’s 2014 decision finding that Servier and a number of producers of generic medicines had infringed Article 101(1) of the Treaty on the Functioning of the EU by entering into agreements concerning perindopril, an important treatment for hypertension and heart problems.  The Commission imposed significant fines.

Under the agreements, the generic producers abandoned their challenges to the validity of various patents held by Servier in relation to the manufacture of perindopril and agreed not to supply generic versions of perindopril for a period.  In return, Servier made substantial payments to those producers and entered into various distribution agreements with those producers under which they would distribute Servier-produced perindopril.

In 2019, the General Court of the EU largely dismissed the companies’ appeals, though it overturned the Commission’s finding that Servier had also breached Article 102 TFEU (abuse of dominant position), and found that two of the agreements involving Krka were not infringements.

The Court of Justice judgments confirm that the agreements were unlawful market exclusion agreements that restricted competition.  It also overturned the General Court’s decision to annul the Commission’s finding that Servier had infringed Article 102, and its decision in relation to the two Krka agreements, remitting that matter to the General Court.

George Peretz KC and Ben Rayment acted for the European Commission on, respectively, the Teva and Lupin appeals, and Josh Holmes KC and Philip Woolfe KC acted for the UK government, which intervened in the appeals in support of the Commission (the UK still being a Member State at the time that the appeal was brought).

CAT rules that the NHS is not time-barred from pursuing damages claims against drug manufacturers involved in the citalopram “pay for delay” cartel

The Competition Appeal Tribunal today ruled that the NHS is not time-barred from pursuing claims for damages against Lundbeck, the Danish pharmaceutical company, and various manufacturers of generic pharmaceuticals, arising out of the “pay for delay” cartel found by the European Commission.

In 2013, the Commission found that Lundbeck, which held various patents in relation to the manufacture of citalopram, a regularly-prescribed treatment for anxiety and depression, had agreed with generic manufacturers that they would abandon their legal challenges to Lundbeck’s patents and stay out of the market in return for payments equivalent to the amount of profit that those generic companies would have made on successful entry.  The Commission found that those agreements breached EU competition law.  In March 2021 the European Court of Justice gave judgment upholding a ruling of the EU General Court that dismissed the companies’ appeals against the Commission’s decision.

The NHS brought an action for damages arising out of the companies’ breach of competition law in the High Court in 2019, just before the sixth anniversary of the Commission’s decision, and that action was transferred to the CAT in 2021.  It was agreed in the transfer order that the NHS would file a claim form in the CAT setting out the details of its claim, which it did in March 2023 (less than 2 years after the Court of Justice’s ruling).

The companies then claimed that the NHS was out of time, under the six year period set out in the Limitation Act 1980, on the basis that it knew or should have known before the date of the decision that it had a cause of action.  The NHS conceded that point, but relied on a separate limitation period under the CAT’s rules that ran for two years from the date of the Court of Justice’s judgment.  The companies accepted that that separate period could have applied, but argued that the filed claim form could not be regarded as a claim form making a new claim, as it was no more than a step in the transferred proceedings.  They also argued that the NHS was estopped from relying on the separate limitation period.

The CAT held that the claim form did have the legal effect of starting proceedings within the separate limitation period, and that proceedings were therefore brought in time.  It also held that there was no estoppel as alleged by the companies.

The NHS’s claim for damages will now proceed.

George Peretz KC represented the NHS before the CAT: he previously represented the European Commission in its successful defence to the appeals in the EU General Court and Court of Justice.

Judgment in £2.4bn PFI judicial review

The Administrative Court has handed down judgment in a public law challenge concerning a £2.4bn Private Finance Initiative (PFI) project for Birmingham’s road network.

PFIs are long-term contracts between a private party and a government entity where the private sector designs, builds, finances and operates a public asset and related services, and bears the financial risks of doing so.

In 2010, Birmingham City Council (BCC) entered into a project agreement with a private contractor for delivery of a 25-year PFI project that includes 2,500 km of the city’s road network, up to 100,000 street lighting columns, over 850 highway structures and bridges, three tunnels, 5,000 km of footways and 76,000 street trees. In response to significant contractual disputes between BCC and the contractor (which culminated in a Court of Appeal judgment in favour of BCC), BCC sought Government approval for proposed changes to the project agreement. In November 2023, the Government rejected those proposals on the basis they were unaffordable when set against existing spending commitments.

The Court has quashed, on grounds of procedural fairness, the Government’s decision to reject BCC’s proposals. However, the Court dismissed BCC’s main case that it had unlawfully been deprived of a substantive legitimate expectation that Government would continue to pay PFI credits for the remaining 12 years of the project. In reaching that conclusion, the Court concluded that documentation produced by the Government at the time the PFI was entered into did not restrict the Government’s ability to terminate PFI credits only in “exceptional circumstances”.

The Judgment is available here.

Ewan West KC and Will Perry acted for the Secretary of State for Transport.

Age Dispute: Khatija Hafesji succeeds in age dispute fact-finding hearing

R (RK) v London Borough of Newham (JR-2023-LON-001029)

In a judgment handed down on 19th June 2024, Upper Tribunal Judge Reeds found – as a matter of fact – that the Applicant was of his claimed age.

Khatija Hafesji acted for the Applicant, who had arrived to the UK from Iran as an unaccompanied asylum-seeking child in October 2021. He had been assessed by the Respondent, the London Borough of Newham, to be an adult aged between 21 and 25 years, with a likely age of 22.

In April 2023, Khatija successfully obtained interim relief for the Applicant, with the effect that Newham was ordered to treat him in accordance with his claimed age pending the Tribunal’s determination of his claim.

The matter was determined following a five-day fact-finding hearing heard over February and March 2024. It is of note that the Tribunal: (i) accepted that the “short-form” assessment of the Applicant’s age carried out by the Kent Intake Unit should not be afforded “any weight” by the Tribunal either as evidence of the Applicant’s age or as evidence concerning the Applicant’s credibility; (ii) accepted that the Applicant’s failure to produce an identity document should not support an adverse inference against his claimed age in circumstances where he had a genuine fear of contacting his family in Iran; (iii) gave weight to the evidence of RK’s peers and the evidence of the Applicant’s litigation friend; and (iv) accepted the Applicant’s submission that the nature of the his relationship with his social worker, which the social worker conceded in cross-examination was not “a relationship characterised by trust”, was relevant to the weight the Upper Tribunal could attach to her evidence as to the Applicant’s age.

The Tribunal accordingly accepted that the Applicant was of his claimed age.

Khatija Hafesji represented the Applicant and was instructed by Alex McMahon of Osbornes Law Solicitors.

£878 million collective claim against Royal Mail

International Distribution Services Limited (formerly Royal Mail plc) has been served with a £878m collective action on behalf of an estimated 290,000 purchasers of bulk mail.

In 2018, Ofcom found that Royal Mail abused a dominant position in 2014 to exclude a competing provider, Whistl, from the market for bulk mail delivery services. Ofcom fined Royal Mail £50m for that conduct. Ofcom’s conclusions and the fine were upheld on appeal by the CAT and Court of Appeal.

The claim is brought on behalf of all persons who purchased or paid for relevant bulk mail services at any time after 10 January 2014. Bulk mail is a type of mail typically sent by organisations such as NHS Trusts, retailers, charities, local authorities, banks, utility companies, advertisers and publishers.  It includes bills, council tax statements, bank statements, charity fundraising appeals, advertising mail and some magazine subscriptions.

Paul Harris KC, Ben Rayment and Will Perry are instructed by Lewis Silkin LLP for the Proposed Class Representative, Bulk Mail Claim Limited.

Mr Robin Aaronson, the PCR’s sole director, was previously a member of the Competition Commission and PostComm.

For press coverage, see The Guardian.

Launch of opt-out claim on behalf of PC gamers

Vicki Shotbolt, a prominent campaigner for children’s digital rights, has launched opt-out collective proceedings in the Competition Appeal Tribunal against Valve Corporation. Valve operates Steam, the world’s largest PC game distribution platform. The claim, which is brought on behalf of around 14m gamers, alleges that Valve has abused a dominant position with the result that consumers have been overcharged for games and in-game content on Steam and other platforms. Proceedings are estimated to be worth up to £656m. The claim website is here.

Robert Palmer KC, Julian Gregory and Will Perry are instructed by Milberg London LLP for the class representative. The claim is funded by Bench Walk Advisors and supported by economists from the Berkeley Research Group.

Media coverage includes the BBC, City AM and The Independent.

Court of Appeal confirms CAT’s refusal to grant injunction in respect of Newcastle replica kit but finds the Tribunal erred on no serious issue to be tried

In the latest round of the dispute between Sports Direct and Newcastle United about the supply of the club’s replica kit, the Court of Appeal today confirmed the earlier decision of the Competition Appeal Tribunal not to grant Sports Direct an interim injunction, but found that the Tribunal had erred in finding that there was no serious issue to be tried.

Sports Direct had argued that it should be entitled to supply of Newcastle replica kit for the 2024/5 season and beyond, having been a retailer of the kit for many years, and had sought an interim injunction to secure supply in time for the planned summer launch and ahead of a trial of the matter.  In April, the Tribunal refused the application, deciding that Sports Direct had not established a “serious issue to be tried”, and that in any event the balance of convenience lay in favour of the club. It nevertheless held that the matter should proceed to a speedy trial.

Following an expedited, rolled up hearing, the Court of Appeal upheld that decision. It found that the Tribunal had been wrong to decide that there was no serious to be tried, but that this did not affect the Tribunal’s reasoning on the balance on convenience.

As regards the question of whether there was a serious issue to be tried, the Court held that the Tribunal fell into error in disregarding contested facts. It should have approached the question on the basis that “the claimant’s allegations of primary fact must (unless plainly fanciful, which is not the case here) be accepted as true and allowance must be made for the possibility that further facts may emerge on discovery or at trial”. The Tribunal had thus been incorrect to find that Sports Direct had not met the requisite standard. The Tribunal had been entitled though to take into account its view of the weakness of Sports Direct’s case in relation to the balance of convenience.

Alison Berridge appeared for Newcastle United, and Stefan Kuppen appeared for Sports Direct.

The Court of Appeal’s judgment is available here.

Power Cables class action certified

Spottiswoode v Nexans France SAS & others [2024] CAT 31

Clare Spottiswoode CBE has been authorised by the Competition Appeal Tribunal to act as the class representative in collective proceedings seeking to recover damages for any loss which flowed through to domestic electricity bills in Britain from the power cables cartel identified by the European Commission.

Fiona Banks and Jack Williams act for Prysmian, led by Jemima Stratford KC (instructed by Macfarlanes LLP).

Michael Armitage acts for NKT, led by Victoria Wakefield KC (instructed by Addleshaw Goddard LLP).

The full judgment can be read here.