Daniel Beard QC, Michael Armitage and Imogen Proud to appear in Supreme Court as permission to appeal granted for R (VIP) v SSHD

The Secretary of State has been granted permission to appeal in R (VIP Communications Ltd) v Secretary of State for the Home Department.

This is a national-security-related judicial review in the telecommunications sphere. In 2020, the Court of Appeal agreed with the High Court that the Secretary of State lacked the power to give a direction to Ofcom not to exempt ‘GSM Gateways’ from individual licensing requirements on national security grounds. GSM Gateways, and specifically Commercial Multi-User Gateways (or ‘COMUGS’), pose national security risks because when a call is made from a landline or mobile phone and routed through a “GSM gateway” the information identifying the calling party is replaced, making it very difficult for communications data about the call or the caller to be ascertained.

The appeal raises the narrow but important question of the proper construction of s.5(3) of the Communications Act 2003, and what powers it confers on the Secretary of State to give directions to Ofcom.

Daniel Beard QC, Michael Armitage and Imogen Proud are acting for the Secretary of State.

Judgment: Good Law Project’s PPE contracts challenges

R (Good Law Project and EveryDoctor) v Secretary of State for Health and Social Care
HT-2020-000226/291/292/419

The High Court has today handed down its long-awaited judgment in four high-profile judicial review challenges to the Government’s award of contracts for PPE (personal protective equipment) during the early months of the pandemic.

All nine of the contracts (together worth more than £700 million) had been awarded without competition using the Government’s emergency powers under Regulation 32(2)(c) of the Public Contracts Regulations 2015; none of the contracted suppliers (Pestfix, Clandeboye and Ayanda) had a history of supplying medical grade PPE, and in a number of instances the items had proven unusable, having failed testing on delivery.

The Good Law Project, supported by a doctors’ organisation, challenged the lawfulness of these contract awards, and permission was granted on three grounds (permission to challenge the use of Regulation 32(2)(c) itself having been refused at an earlier stage):

i. First, that the Secretary of State had breached the EU principles of equal treatment and transparency by failing to ensure competition between suppliers and in particular through the use of a ‘high priority’ or ‘VIP lane’ for suppliers who had been referred by Ministers, MPs and senior officials.

ii. Second, that the Secretary of State failed to provide proper reasons for his decisions.

iii. Third, that the decisions to award the contracts to PestFix and Ayanda were irrational in that insufficient financial or technical verification was carried out, and owing to operation of the High Priority Lane

The Secretary of State opposed all grounds; he also argued that the Claimants lacked standing to pursue their challenges and relief fell to be refused.

Following a five-day hearing in May 2021, O’Farrell J found almost entirely in the Defendant’s favour. In brief summary, she held:

i. The Secretary of State was obliged to comply with the principles of equal treatment, notwithstanding the applicability of Regulation 32(2)(c). While the ‘open source’ approach he had adopted generally was compliant, the operation of the High Priority Lane itself was not: offers that were introduced through ‘Senior Referrers’ received earlier consideration at the outset of the process, thereby increasing their chances of securing a contract.

ii. Prior to the issue of proceedings, the Secretary of State had complied with his duty to give clear and sufficient reasons for awarding the contracts under challenge.

iii. None of the award decisions was irrational: the Secretary of State had not placed any reliance on their referral to the High Priority Lane when awarding the contracts to PestFix and Ayanda, and sufficient technical and financial verification had been carried out.

iv. The Claimants had sufficient interest to bring the claims.

v. Relief (in this case, a declaration of unlawfulness) in respect of the breach of the obligation of equal treatment was nevertheless refused under s.31(2A) of the Senior Courts Act 1981, on the basis it is highly likely that the outcome would not be substantially different. Given the high volumes of supply on offer, the contracts would still have been awarded.

Aside from the political and media interest in the Government’s Covid-related procurement activities more generally, the decision is likely to be of considerable importance for public lawyers and procurement practitioners in future:

i. As well as clarifying the requirements of equal treatment and transparency which apply under Regulation 32(2)(c), O’Farrell J’s lengthy discussion and authoritative restatement of these principles more generally is likely to be of wider significance for any challenge based on breach of these retained EU procurement principles.

ii. The judgment emphasises the high bar for any rationality challenge: the Claimants’ rationality ground failed in its entirety, with the judge noting that in the circumstances “the court’s role is not to second-guess an appropriate calculation of the risks involved or substitute its own assessment as to the propriety of the contracts awarded“. Even where there was evidence that errors had been made in technical assurance process, it was “not appropriate for the court to scrutinise every aspect of it in minute detail or substitute its own decision.” Those acting for Defendants may well refer these dicta as well as to the summary of the law on rationality in future challenges.

iii. The case is also an important reminder of the power of s.31(2A) SCA 1981, in particular for ‘public interest’ claimants who are seeking only declaratory relief.

iv. Finally, the ancillary ruling on confidentiality (following an application by the Claimants which was supported by submissions from the Press Association) is likely to be of ongoing significance whenever the Court is required to balance the interests of open justice with the confidentiality of commercially sensitive information in procurement proceedings.

Michael Bowsher QC, Ewan West, Imogen Proud, Khatija Hafesji and Alfred Artley acted for the Secretary of State, instructed by the Government Legal Department.

Alan Bates acted for the Interested Parties (Pestfix and Ayanda), instructed by Osborne Clarke LLP and Lewis Silkin LLP.

The full judgment can be read here.

Age Dispute JR: Imogen Proud succeeds for unaccompanied child asylum seeker

R (GB) v LB Lambeth CO/2734/2021

Age disputes are a unique species of public law litigation.

They arise when an unaccompanied asylum seeker, claiming to be a child, presents himself to a local authority seeking accommodation and support under the Children Act 1989. Local authorities carry out a process involving a series of interviews, known as an ‘age assessment’, which results in the local authority attributing to the young person a date of birth. If the young person is assessed to be over 18, the local authority owes no duties under the Children Act 1989, and he passes to the care of the Home Office. The young person’s age on arrival to the UK also has implications for the test which the Home Office will apply when assessing an asylum application.

Where the young person disagrees with the local authority’s conclusion, the mode of challenge is by way of judicial review in the Administrative Court. Since Baroness Hale’s judgment in A v Croydon [2009] 1 WLR 2557, the main ground of challenge is that the local authority has made an error as to the precedent fact of the young person’s age. Orthodox public law grounds are relevant, particularly at the permission stage, but are likely to be subsumed in any final determination of objective fact of the young person’s age. When permission is granted, the JRs are generally transferred to the Upper Tribunal (Immigration and Asylum Chamber) for a fact-finding hearing, since that tribunal is well-equipped to decide questions of fact on contested evidence.

R (GB) v Lambeth BC was such a dispute. GB is an asylum seeker from Eritrea. He claimed to have entered the UK aged 17 and to be 18 at the time of issue. The issue of his age was of continuing relevance as it determined whether he was a “former relevant child” and a person “qualifying for advice and assistance” under the Children Act 1989. The local authority considered GB to be 20 at the time of their assessment. GB had enjoyed a very successful 11-month foster placement, which both he and his foster mother wished to continue after his 18th birthday, which was brought to an end after the age assessment when GB was transferred to Home Office adult accommodation. Pending an upcoming hearing, the local authority has agreed to accept GB’s claimed age and to accommodate him as a care leaver.

It is very common that age disputes are brought to an end by settlement. Generally, the agreement reached is that the local authority will withdraw its assessment and re-assess. The result achieved in this case, namely the local authority accepting the young person’s claimed age, is much rarer.

Imogen Proud was instructed by Manjit Mandair at Osbornes Law.

The Public Law Practice Group at Monckton has a great deal of expertise of age dispute litigation, with our barristers having acted in some of the leading cases in this area. A number of our members are regularly instructed to provide advice and representation in JRs concerning age assessments.

 

Seven individual members of Monckton Chambers appointed across three of The Lawyer Top Twenty cases for 2022

The Lawyer magazine has published its “Top 20 cases of 2022”.

Four QCs and three Juniors at Monckton Chambers were instructed across three of the twenty cases highlighted by The Lawyer for 2022:

1. ATOS IT Services v The Met Office

“A supercomputer is at the heart of this procurement challenge. Launched against The Met Office, the UK Government-backed weather agency, it has been claimed by Atos IT Services that the procurement process was not run properly, particularly when it came to evaluating proposed bidders.”
For the claimant, Atos IT Services: Valentina Sloane QC and Azeem Suterwalla, instructed by Burges Salmon partner Chris Jackson
For the defendant, The Met Office: Ewan West, instructed by Hogan Lovells partner Rupert Sydenham

2. Phones 4U v EE and others

“The estate for former retailer Phones4U is challenging several major mobile network operators over an alleged anti-competitive breach of contract. The dispute dates back to 2014, when O2, Vodafone and EE allegedly withdrew supplies from Phones4u and subsequently entered an exclusive deal with rival Carphone Warehouse, both of which were then the two major intermediaries selling mobile phone contracts in the UK.”
For the defendant, EE: Meredith Pickford QC and David Gregory, instructed by Clifford Chance partners Samantha Ward and Jeremy Kosky
For the defendant, Vodafone and Vodafone Group: Rob Williams QC, instructed by Hogan Lovells partners John Tillman, Angus Coulter and Alex Sciannaca, and counsel Victoria Lindsay and Alice Wallace-Wright

3. Greater Gabbard Offshore Winds and others v Prysmian Cavi e Sistemi Srl and ors

“As green technology gains traction, disputes arising out of projects in this area are going to become more and more of a theme. This case concerns alleged cartel behaviour from cable developer and manufacturer Prysmian as well as a host of different suppliers.”
For the defendants, Prysmian Cavi e Sistemi Srl and ors: Anneli Howard QC, instructed by Macfarlanes partner Cameron Firth

Subscribers to The Lawyer can read the full article here.

Ian Wise QC and Michael Armitage act for Harry Miller in second victory for freedom of expression

The Queen on the application of Harry Miller (Appellant) v The College of Policing (Respondent)

On 20 December 2021, the Court of Appeal (Dame Victoria Sharp P giving the judgment of the Court) held that certain parts of the College of Policing’s ‘Hate Crime Operational Guidance’ (“HCOG”) were contrary to Article 10 of the European Convention on Human Rights (“ECHR”).

The policy in question was that non-crime hate incidents were required to be recorded by police as such (against the named person allegedly responsible)  if the incident is subjectively perceived by the “victim or any other person to be motivated by a hostility or prejudice against a person who is transgender or perceived to be transgender” and irrespective of any evidence of the “hate” element.

The High Court had previously granted the application of the appellant, Mr Harry Miller, for judicial review of the Chief Constable of Humberside’s recording of a non-crime hate incident (in respect of Mr Miller) under the HCOG, and the subsequent actions taken in relation to him by officers, including seeking to prevail on Mr Miller not to continue tweeting about proposed reforms to the Gender Recognition Act 2004. The High Court granted Mr Miller a declaration that certain actions by officers interfered with Mr Miller’s right to freedom of expression under Article 10(1) ECHR. See news post 14 February 2020.

Ian Wise QC and Michael Armitage instructed by Paul Conrathe of Sinclairslaw, acted for the Appellant, ex-police officer Harry Miller.

You can read the full judgment here and detailed case note by Imogen Proud is here.

The case has received significant media interest, including: The Times; The Telegraph; The Guardian; BBC; The Spectator.

Harry Gillow acts for Appellant in Court of Appeal flight compensation claim highlighting post-Brexit divergence from CJEU’s rulings

The Court of Appeal has today handed down judgment in Chelluri v Air India Ltd [2021] EWCA Civ 1953, clarifying the scope of Regulation 261/04 providing for compensation for delayed flights. The Court of Appeal held that a series of connecting flights should be taken as a whole for the purposes of the Regulation meaning that the Appellant – who was flying from the US to India via London Heathrow – was not entitled to compensation for a delay on her flight leaving Heathrow which led to a delay on arrival at her final destination in India. The Court held that while the plain wording of the Regulation might have supported the Appellant’s case, this was insufficient grounds to justify departing from a previous judgment of the Court of Justice of the European Union on this point.

This judgment shows that the UK courts’ approach to matters of retained EU law is likely to differ significantly from that adopted by the CJEU on the same points (the Court in this instance reaching a different conclusion to that recently proposed by the Advocate general on a very similar case before the CJEU). This judgment is important for demonstrating both the likelihood of future divergence from the CJEU’s rulings and the limited role that general principles of EU law may play post-Brexit in the UK courts’ approach when compared with that of the CJEU itself.

Harry Gillow, instructed by Hayward Baker Solicitors, acted as sole counsel for the Appellant.

Administrative Court dismisses JR challenge to police pensions reform

R (Police Superintendents’ Association) v HM Treasury [2021] EWHC 3389 (Admin)

On Wednesday 15 December, the High Court dismissed a JR brought by the Police Superintendents’ Association (PSA) against HM Treasury. The Secretary of State for the Home Department was the Interested Party.

The PSA sought to challenge HM Treasury’s policy decision to close legacy public service pension schemes, and to move all members to reformed pension schemes from 1 April 2022. The legacy pension schemes tended to be final salary schemes and the reformed schemes based on career average earnings.

The grounds of challenge were: (1) breach of the duty to consult; (2) breach of the public sector equality duty; (3) breach of legitimate expectation that police could remain in their legacy scheme until retirement; and (4) error of fact.

HM Treasury opposed all grounds and also argued that relief fell to be refused pursuant to s.31(2A) of the Senior Courts Act 1981 and/or the grant of relief would infringe Parliamentary privilege.

Mrs Justice Williams dismissed the claim. The court rejected the legitimate expectation and error of fact challenges. On consultation and PSED, the Court held that the decision-maker, the Chief Secretary to the Treasury, took the decision to close the legacy public service pension schemes before he had received a summary of the consultation responses or a draft of the relevant equalities impact assessment.

However, the Court held that relief fell to be refused under s.31(2A), on the basis that it was highly likely the outcome would have been the same if the decision-maker had considered the consultation responses and EIA before making his decision. The closure decision had been his strongly preferred policy position throughout, and the consultation responses and EIA showed no grounds for departing from that preferred policy position.

In relation to Parliamentary privilege, the Admin Court also accepted HM Treasury’s argument that the Court should not do anything, directly or indirectly that would delay the passage of the Public Service Pensions and Judicial Offices Bill currently proceeding through Parliament, which will enact the policy in question. The Court further accepted that a declaration that the consultation was unlawful or that the policy decision was unlawful would have the practical effect of telling Parliament that the procedure leading to the legislation was unlawful or that its chosen form of legislation was unlawful. As the form of primary legislation is a matter for Parliament and not the courts, the relief sought would infringe Parliamentary privilege.

The case is an important judgment in relation to legitimate expectation, Parliamentary privilege and s.31(2A) SCA 1981.

Raymond Hill and Imogen Proud acted for the Secretary of State instructed by the Government Legal Department. They were also instructed by the Interested Party. Imogen and Raymond were led by Catherine Callaghan QC at Blackstone Chambers.

The full judgment can be read here.

IMA issues judicial review of the EU Settlement Scheme

In the first case of its kind, the Independent Monitoring Authority for the Citizens’ Rights Agreements (“IMA”) has brought a challenge to the domestic implementation of the UK’s commitments to EU and EEA citizens in the UK-EU Withdrawal Agreement and UK-EEA EFTA Separation Agreement.

The IMA contends that the EU Settlement Scheme breaches the commitments entered into by the UK by requiring EU and EEA citizens who have been granted Pre-Settled Status to apply for Settled Status or for further Pre-Settled Status before their current Pre-Settled Status expires, failing which they will automatically be considered unlawfully present in the UK with attendant consequences for their right to live and work in the UK.

The IMA is the independent body set up pursuant to the Agreements to receive complaints, conduct inquiries and bring legal action on behalf of EU/EEA citizens and their family members under the Agreements.

The IMA’s statement on the launch of proceedings is available here.

Robert Palmer QC and Clíodhna Kelleher are instructed by the IMA in this case.

The case is being reported in the media:

The Times

Laura Elizabeth John and Jack Williams secure security for costs in CAT

The Competition Appeal Tribunal (the CAT) in Kerilee Investments Ltd v International Tin Association Ltd (Case No: 1379/5/7/20) has ordered that the Claimant shall give security for the Defendant’s costs in the proceedings, of £400,000 to be paid in instalments.

This is believed to be the first time that security for costs has been obtained in CAT proceedings. The claim is brought on a stand-alone basis, whereas previous unsuccessful applications for security have been brought in follow-on proceedings.

At a CMC in October, the Tribunal had directed that the Defendant’s application for security would be heard on 17 December 2021, after noting that “at present there appears to be a clear prima facie case for security for costs” and that “if the Claimant is going to continue to oppose the application for security for costs, we would expect full, frank and detailed evidence in relation to the Claimant’s financial position and possible sources of funding, including from directors or shareholders.” The application then settled by consent.

The Tribunal will confirm whether the payment is to be made to it, or by some alternative method.

The Tribunal’s order can be found here.

Laura Elizabeth John and Jack Williams act for the International Tin Association, instructed by Sherrards.