Freedom of information: Alison Berridge represents requester in key Upper Tribunal case on national security exemptions

The Upper Tribunal has ruled on the practice of public authorities refusing FOIA requests citing both ss 23 and 24 “in the alternative”, despite the fact that they are mutually exclusive and only one can apply to any piece of requested information.

The so-called “masking” practice arose because citing (or not citing) s.23 would reveal whether the requested information related to a security body, something the FCDO argued may raise national security issues.

The Tribunal accepted the national security concerns, which it concluded were for the executive to evaluate, and held that in the context the requirement to “specify” the exemption relied on means no more than to “cite” or “identify” it.

Alison Berridge represented one of the three requesters.

The decision is available here.

Josh Holmes QC & Nikolaus Grubeck secure indemnity costs award for their client in the CAT

Following a successful application for strike-out / summary judgment by Coca-Cola European Partners (“CCEP”) in a competition claim brought against it by a drinks wholesaler, the Competition Appeal Tribunal has made a rare order awarding CCEP its costs in the action on the indemnity basis.

The Tribunal held that CCEP was “the wholly successful party” and that the Claimant’s conduct of the action was such as to take the case “out of the normal” in a way which justifies an order for indemnity costs.

The full judgment in the application can be found here.

The reasoned costs order can be found here.

Josh Holmes QC and Nikolaus Grubeck acted for CCEP, instructed by CMS.

Opt-out class action by over 2m consumers certified: first attempt to strike out a CPO rejected

Today, the Competition Appeals Tribunal (CAT) has certified opt-out collective proceedings against BT for alleged excessive pricing in abuse of its dominant position in standalone landline telephone services. The class representative, Mr Justin Le Patourel, will now represent over 2 million consumers in their claims that have an estimated value of up to £600m.

The unanimous judgment from the CAT (available here) held that “the opt-out basis is clearly more appropriate and suitable than the opt-in basis” and rejected all of BT’s arguments to the contrary. The CAT also dismissed all of BT’s submissions that the claims should be struck. It held that “there is a real prospect of success for this claim and [BT’s] cross-application must be dismissed… [The claims] must be determined at a full trial after all the relevant evidence is adduced and considered”.

The decision is the first successful defence of an application for strike-out / summary judgment in a CPO claim. It is only the second collective proceedings order granted by the CAT.

Ronit Kreisberger QC, Nikolaus Grubeck, and Jack Williams represent the successful class representative, Justin Le Patourel. The counsel team are instructed by Mishcon de Reya.

Please click here to read the case note.

The case is being reported in the media:

The Times

The Guardian

Independent

Daily Mail

Money Saving Expert

Legal Futures

Ian Wise QC, Michael Armitage and Will Perry secure victory for five-year-old boy against the Environment Agency in Walleys Quarry Landfill Right to Life case

R (On the Application of) v The Environment Agency [2021] EWHC 2501

In a landmark human rights case involving a vulnerable five-year-old boy, Mathew Richards, Monckton’s Ian Wise QC, Michael Armitage and Will Perry succeeded in showing that the Environment Agency is not discharging its statutory duty under s. 6 of the Human Rights Act 1998 to protect the boy’s right to life and right to respect for private and family life (under Articles 2 and 8 respectively of the European Convention on Human Rights) in its regulation of harmful hydrogen sulphide emissions from the Walleys Quarry Landfill Site in the Staffordshire village of Silverdale.

The Silverdale community’s campaign to “Stop the Stink” from the Landfill has been well publicised in the national media and discussed in Parliament. Mathew, the Claimant, was born prematurely and suffers from bronchopulmonary dysplasia (“BPD”) as a result. In his judgment of 16 September, Fordham J found: (i) that ongoing exposure to hydrogen sulphide emissions from the Landfill at current levels was responsible for making Mathew’s BPD “an inevitable precursor” to Chronic Obstructive Pulmonary Disease, “a serious illness reducing life expectancy”; and (ii) that, as such, exposure to those emissions posed a “real and imminent risk” to Mathew’s life for the purposes of Article 2 ECHR. He noted that the Environment Agency has the power to protect Mathew from that exposure.

Fordham J did not accept the Environment Agency’s submission that it had done what the law required it to do to protect Mathew, because he had not been presented with any evidence of a disciplined plan to address a recommendation that Public Health England had made in August that “all measures” be taken to reduce off-site emissions of hydrogen sulphide “as early as possible” to certain levels.

Fordham J underlined that PHE’s recommendations required “real and significant change, as a matter of urgency”, in order to ensure that human rights safeguards were practical and effective. In line with those recommendations, he therefore made a declaration that the Environment Agency must take measures to ensure that off-site odours from the Landfill are reduced as early as possible to meet the World Health Organisation’s half-hour average guideline level of 5 parts per billion, and that concentrations of hydrogen sulphide in the local area must be reduced to below the US EPA Reference Value of 1 part per billion (recommended by PHE as a safe level for chronic inhalation) from January 2022, concluding those reductions would make a “very real difference” to the air that Mathew and his community breathe.

The case is legally significant for three principal reasons. First, live evidence was heard from expert witnesses, namely Mathew’s consultant paediatrician Dr Ian Sinha and Professor Sir Colin Berry, a histopathologist and toxicologist who was the expert for the Interested Party, the Landfill operator Walleys Quarry Limited. That is rare in judicial review in any event, but it is thought that this is the first time that the Administrative Court has used the “hot-tubbing” of experts as a way of cutting through the issues. Second, Fordham J’s is the first domestic judgment explicitly to decide that a reduction in life expectancy can be identified with a “real and imminent risk” to life for the purposes of Article 2 ECHR. Third, this was the first domestic environmental case that considered both Article 2 and Article 8 ECHR in tandem.

The judgment is available here.

Ian Wise QC, Michael Armitage and Will Perry acted for the Claimant (instructed by Hopkin Murray Beskine Ltd).

The case is being reported widely in the media:
The Guardian (16 September) and The Guardian (17 September);
BBC News;
Independent;
The Times;
Sky News.

 

Please click here to read the case note.

Imogen Proud is sole counsel in JR challenge to eviction from emergency housing during the “Everyone In” Scheme

Imogen Proud, instructed by Derek Bernardi of Camden Community Law Centre, is acting for Mohammed Bhuiyan, a Bangladeshi national with leave to remain in the UK but with no recourse to public funds. Bhuiyan was housed by Tower Hamlets last March as part of the “Everyone In” Scheme which required all councils to find emergency housing for rough sleepers in response to the pandemic.

Despite the Ministry of Housing, Community and Local Government stating that the Scheme was “ongoing” and that “no one should find themselves back on the street”, on 22 June 2021 Mr Bhuiyan received a letter from the council saying that he must leave the hotel by 2 August. On Monday, Bhuiyan’s legal team were successful in securing an interim relief order which means that Tower Hamlets must continue to accommodate Mr Bhuiyan pending a decision on permission to proceed with his claim.

The case has attracted media attention including an article written by May Bulman, the Independent’s Social Affairs Correspondent, in Monday’s edition which can be read by subscribers here.

Josh Holmes QC and Nikolaus Grubeck succeed in Coca-Cola European Partners Great Britain strike-out

The Competition Appeal Tribunal has dismissed a standalone damages claim brought by a drinks wholesaler against Coca-Cola’s GB bottler, Coca Cola European Partners Great Britain Limited (CCEP).

Forrest Fresh Foods had alleged various abuses of dominance. Allowing CCEP’s application for summary judgment, the Tribunal emphasised that a breach of competition law is a “very serious allegation” that needs “proper and careful pleading”. Mrs Justice Bacon held that “a defendant faced with such a claim is entitled to know what the conduct is complained of, how that has infringed competition law and the loss and damage said to have flowed from that. We consider that the particulars of claim fail on all three points and the evidence does not serve to remedy that deficit.”

A written judgment with the Tribunal’s full reasons can be found here.

Josh Holmes QC and Nikolaus Grubeck acted for CCEP, instructed by CMS.

Ronit Kreisberger QC and Michael Armitage act for class representative as Google sued for excessive and unlawful charges on its Google Play Store

Ronit Kreisberger and Michael Armitage, instructed by Hausfeld, are acting for Liz Coll, the proposed class representative in a proposed opt-out representative action against Google. A claim has been filed today in the Competition Appeal Tribunal against Google on behalf of an estimated 19.5 million eligible UK users of smartphones and tablets running on Google’s Android operating system. Estimated damages run up to £920 million.

The claim alleges that Google unfairly restricts consumers from accessing potential competition from other app distributors, by requiring smartphone manufacturers to pre-install a bundle of Google’s proprietary apps and services including the Google Play Store as well as allegedly imposing other contractual and technical restrictions. The vast majority of Android smartphone and tablet users in the UK are thought to depend upon the Google Play Store for their access to apps.

The overwhelming majority of customers are alleged in the Claim to be steered to the Google Play Store, and therefore to Google’s own payment processing system, which then typically charges a 30% commission on every digital purchase which allegedly goes straight to Google.

Ms Coll’s case is that this practice is anti-competitive and unlawful, and that Google would be unable to charge customers such excessive and unfair commission if the Play Store were genuinely open to competition, and alleges this conduct violates section 18 of the UK Competition Act 1998 and Article 102 of the Treaty on the Functioning of the European Union.

Ronit comments “this proposed claim is another important addition to the CAT’s burgeoning CPO case load; and further proof that the class action regime in the CAT is seen as a robust and effective means of seeking collective redress for UK consumers.”

For further information, see news release issued by Hausfeld here.

The claim has been reported in the news, including: BBC News; Bloomberg; City AM; The i; The Sun; The Telegraph (subscription only).

Ewan West, acting for the Government, sees Judge set aside face mask procurement challenge on basis of procedural irregularity

The High Court has ruled that the latest challenge to the U.K. health department’s process for awarding contracts during the COVID-19 pandemic should not be allowed to go ahead as the claim was not served validly.

The group action, brought by the Good Law Project, alleges breach of the procurement regulations and apparent bias and challenges the lawfulness of two contracts for face masks awarded to Pharmaceuticals Direct Ltd. However, the central issue to this judgment was whether there was valid service of the claim form in these proceedings; if not, whether the court should rectify any deficiency or extend time for service of the claim form.

Contrary to the court procedure rules, this action was not served on the government within the required seven days of the lawsuit being issued in April. The claimant’s argument was that the legal team’s failure to comply was “minor and technical.” The Defendant’s application to set aside the claim was summarised as follows: “This is not a case in which the Claimant should have had any difficulties in effecting valid service. It made a careless mistake in emailing the claim form to the wrong address. If the court were to grant the Claimant’s application, the Defendant would suffer prejudice in that it would be deprived of an accrued limitation defence to the claim.”

The Claimant’s application was dismissed.

This judgment will be of interest to all public law and procurement practitioners, as it is concerned with valid service of the claim form in a judicial review context.

Ewan West, instructed by the Government Legal Department, represented The Secretary of State for Health and Social Care.

Read full judgment here. A detailed case note by Imogen Proud is here.

High Court grants permission to challenge domestic implementation of UK-Morocco Association Agreement

The High Court has granted Western Sahara Campaign UK (“WSCUK”) permission to challenge the grant of preferential tariff treatment to goods from Western Sahara but designed by Morocco as “Moroccan” for purposes of the UK-Morocco Association Agreement.

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 without consent.

WSCUK contends that the provisions of the agreement (and secondary legislation incorporating the relevant terms of that agreement) which purport to apply to Western Sahara must be read down. If such a compatible interpretation is not possible, WSCUK contends that domestic implementing legislation giving effect to the UK-Morocco Association Agreement must be treated as ultra vires Sections 9 and 28 of the Taxation (Cross-border Trade) Act 2018, since it fails to “give effect” to the treaty obligations and to have regard to international obligations in doing so, as required by the enabling act.

The central issue at the permission hearing was whether the claim was barred by the foreign act of state doctrine. In a reasoned permission decision, the High Court rejected the argument that the claim was non-justiciable on grounds of foreign act of state, finding that it was at least arguable that the claim falls within the public policy exception to the doctrine.

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.

Valentina Sloane QC is successful in Court of Appeal case on scope of HMRC assessment powers

In a decision of significance for public bodies, the Court of Appeal has held that HMRC has power to raise assessments against public bodies who have been overpaid VAT refunds under section 41 of the Value Added Tax Act 1994.

Milton Keynes Hospitals NHS Foundation Trust argued that HMRC’s power to make an assessment under section 73 (2) of the Value Added Tax Act 1994 did not apply where the person to whom the refund was made under section 41 (3) is not a taxable person as regards the supplies which were the subject of the refund. They contended that the effect of the Principal VAT Directive and the domestic legislation implementing it is to put a public body performing statutory (non-business) functions outside the scheme of VAT.

The Court of Appeal dismissed the Trust’s appeal.

Valentina Sloane QC represented HMRC at all stages. A link to the decision by the Court of Appeal is here.