In a judgment handed down on 7 March, the Bailiff of Guernsey, Sir Richard McMahon, set aside a 2021 decision by the Guernsey Competition and Regulatory Authority (GCRA) finding that Sure and Jersey Telecom, two of the main providers of mobile telephone services in Guernsey, had entered into an unlawful concerted practice in relation to proposals for the roll-out of 5G mobile telephone services in Guernsey.  The Bailiff set aside the decision on the basis that key findings made in the decision had not been put to the parties in the GCRA’s statements of objections.  He went on to state that in any event he would have been minded to set aside the decision on a number of grounds relating to the substance, including a finding of object infringement.  The judgment also contains rulings on important aspects of Guernsey competition law, including its relationship to EU law and the standard of review to be applied by the Royal Court on appeal.

George Peretz KC assisted a Bedell Cristin team, led by Advocate Jon Barclay, for Jersey Telecom before the GCRA and on the appeal.

Stefan Kuppen assisted a Carey Olsen team, led by Advocate Elaine Gray, for Sure Guernsey on the appeal.

Josh Holmes KC and Julian Gregory assisted a team at the GCRA

The Competition Appeal Tribunal has issued its judgment granting Bulk Mail Claim Limited (“BMCL”) a Collective Proceedings Order, clearing the way for BMCL to bring claims for damages on behalf of retail bulk mail customers, a class of different sized businesses and other organisations such as public bodies, and charities that send high volume mailings to addresses in the UK.

Retail customers purchase bulk mail retail services from Royal Mail and “access operators” in the “bulk mail retail services market”. Access operators typically collect bulk mail and carry out an initial sortation, before passing that mail on to Royal Mail for physical delivery. Royal Mail is overwhelmingly dominant on the relevant end-delivery market, which accounts for the largest proportion of the cost of sending bulk mail. Following an investigation, Ofcom found in a decision issued in 2018 that Royal Mail had abused its dominant position in 2014 by proposing to introduce discriminatory pricing for bulk mail delivery, which was designed to exclude Whistl, a major access operator, from the end-delivery market and to protect Royal Mail’s monopoly position.  BMCL claims that in the absence of Royal Mail’s conduct bulk mail retail customers would have benefited from lower prices as a result of competition in the end-delivery market.  The CPO Notice which BMCL is required to publish by the Tribunal states that damages are currently estimated in the region of £1 billion. Whistl recently settled its claim against Royal Mail.

In its Judgment, the Tribunal dismissed Royal Mail’s two objections to certification (in relation to BMCL’s expert methodology for estimating damages) principally on the basis that these were matters for trial. Although Royal Mail did not advance a positive case that BMCL via its sole director, Robin Aaronson, was not suitable to be authorised to bring the claim, the Judgment shows the care the Tribunal takes of its own initiative to ensure that a class representative is a suitable person and has appropriate arrangements in place to advance the claims of the class members. In particular, the Tribunal requested a range of information from BMCL (including, a letter setting out how the claim had arisen and details as to the costs budget), and, in light of the unusual composition of the class, requested that BMCL establish a ‘customer user group’ so that larger class members could offer their input to BMCL.

Bulk Mail Claim Limited was represented by Paul Harris K.C., Ben Rayment, Will Perry and Reuben Andrews instructed by Lewis Silkin LLP.

A copy of the certification Judgment can be found here.

The CAT has handed down an important judgment in a post-Brexit jurisdictional challenge/ strike out application in Asda Stores Limited and Others v Bremnes Seashore AS and Others, a cartel damages claim brought by leading UK supermarkets against several of the largest global producers of farmed Atlantic salmon. The claim alleges a cartel infringement relating to the Norwegian spot price index that inflated the cost of salmon products in the UK.

Post-Brexit, claimants cannot simply rely on the heads of jurisdiction set down in the Brussels Recast Regulation or the Lugano Convention to seise the UK courts – instead they have to show that there is a serious issue to be tried and that the UK courts satisfy the Spiliada forum conveniens test. The re-introduction of the former common law test has introduced uncertainty regarding jurisdiction post Brexit.

The Defendants argued that the Norwegian courts were clearly more appropriate given that the alleged cartel took place in Norway and all the witnesses and documentary evidence relating to the cartel would be in Norway.

The Defendants also sought to set aside the Tribunal’s previous order granting permission to serve out of the jurisdiction for material non-disclosure on the basis that the proceedings are stand-alone rather than follow-on. This case is one of the first claims issued post-Brexit, where the Claimants rely on a European Commission Statement of Objections to support the cartel allegations in their claim. As yet there is no Commission infringement decision and, as the Commission investigation was formally instigated after the end of the Brexit implementation period, any Commission findings will not be binding on the Tribunal. Notwithstanding that any eventual Commission infringement decision would not be binding as to liability, the Tribunal confirmed that it may have regard to any eventual decision and the Commission’s findings may still be persuasive in UK stand-alone proceedings.

The claim, which will now proceed in the UK, gives important guidance for determining jurisdiction challenges on forum non conveniens grounds, an issue that has arisen in several recent post-Brexit cases. The Tribunal ruled that the UK, rather than the Norwegian courts, is the more appropriate forum to hear the claims. Although the main events relating to the cartel activities are alleged to have taken place outside the UK, the Tribunal found that the direct and indirect effects on UK prices relating to both Norwegian salmon and Scottish salmon (said to have resulted from the collusion in Norway) made the UK the natural and appropriate forum for the proceedings.

The Defendants also sought to strike out the claims against their UK subsidiaries, on the basis that they were engaged in different ‘economic activity’ as they primarily sold Scottish salmon rather than Norwegian salmon products. The Tribunal gave an important judgment regarding the interpretation and application of the Sumal test (a post-Brexit CJEU ruling) for being part of the same economic undertaking for the purposes of competition law. In this case, the UK subsidiaries were either wholly owned by the Norwegian Defendants or were part of 50/50 or 60/40 joint ventures. The Tribunal held that there was an arguable case on control or decisive influence and that the UK subsidiaries were engaged in the ‘same economic activity’ as their parents as they sold the same species of salmon products in the UK – it made no difference if there was a slight difference in the geographical denomination or commercial branding of their products. Accordingly, the Tribunal took a broader, pragmatic approach to the interpretation of economic activity. The ruling also confirms the importance of UK anchor defendants in establishing a substantial connection with the UK and demonstrating that the UK is an appropriate forum.

Anneli Howard KC, Julian Gregory and Alastair Holder Ross of Monckton Chambers, instructed by Stephenson Harwood, acted successfully for the claimant supermarkets.

Josh Holmes KC and Conor McCarthy of Monckton Chambers, instructed by Shepherd & Wedderburn, act for the SSF (Scottish Sea Farms) Defendants.

In the matter of Thames Water Utilities Holdings Limited and in the matter of the Companies Act 2006 [2025] EWHC 338 (Ch), judgment 18 February 2025, Leech J

Philip Moser KC and Hugh Whelan of Monckton Chambers have acted successfully for Thames Water in its application to the Court to sanction its proposed restructuring plan. This approval paves the way for Thames Water to access significant further funding.

The restructuring plan was principally contested by a group of creditors holding Class B junior debt (known as the ‘Class B Creditors’) who advanced several Grounds of Objection to the plan. By their fourth objection, the Class B Creditors submitted that there was a ‘blot’ in the proposed restructuring plan because one of its clauses, known as the ‘June Release Condition’ (which provided certain conditions for the release of future tranches of funding), infringed the Chapter I Prohibition contained in section 2(1) of the Competition Act 1998.

Leech J dismissed this objection, holding that the Class B Creditors had failed to prove any of their allegations on the balance of probabilities, so the objection failed on the facts. Leech J further found that, even if the Class B Creditors had proved their allegations, he would have dismissed the objection in any event based on the application of the law to the facts, as there was neither a restriction of competition by object nor a restriction of competition by effect.

The Judgment can be found here.

Philip Moser KC and Hugh Whelan of Monckton Chambers, instructed by Linklaters, acted for the successful Applicant Company in relation to the competition law matters.

The Court of Appeal (Coulson LJ, Fraser LJ, and Zacaroli LJ) has handed down a significant judgment in a procurement dispute, clarifying the circumstances in which a contracting authority is obliged or entitled to seek clarification of errors in a tender.

The claimant (Optima Health) had tendered for a call-off contract under a framework agreement to provide occupational health and employee assistance programme services to the Department for Work and Pensions. Under the framework agreement, suppliers could not charge prices in excess of framework prices for any call-off contract. Optima submitted a pricing schedule in which a small number of items were in excess of the framework prices. DWP considered Optima’s tender to be non-compliant and excluded it from the competition, although it had the highest score on quality and would (but for its non-compliant prices) have been the winning bidder.

Optima alleged that the pricing schedule contained obvious clerical errors and that its disqualification was in breach of the principles of transparency and equal treatment and/or disproportionate. At trial, the Court was asked to determine: (i) whether the tender documentation clearly and transparently set out the consequence of exceeding framework prices (ii) if the tender documents were clear and DWP therefore had a discretion, whether it had acted unlawfully by excluding Optima rather than taking alternative action, such as reducing the prices to the maximum framework prices, waiving the non-compliances, or seeking clarification.

The High Court found against Optima on both grounds, holding that (i) it was clear from the tender documentation (understood in its commercial context) that bids with prices in excess of framework prices would or might be excluded and (ii) DWP had lawfully excluded Optima from the competition.

Optima appealed on the basis that (i) the judge had erred in finding that the tender documentation contained a clear rule of mandatory exclusion and (ii) in the circumstances DWP ought to have permitted to Optima to correct and/or clarify the errors in its tender.

The Court of Appeal allowed the appeal, concluding that: the tender documentation did not contain a clear rule of mandatory exclusion; DWP had failed properly to exercise its discretion in relation to clarifying the errors; in the circumstances it was obliged to seek clarification of them and to do so would not have been a breach of the principle of equal treatment.

The lead judgment of Coulson LJ contains an in-depth consideration of the existing European and domestic authorities, clarifying when corrections to tenders may be permissible and the circumstances in which a contracting authority is required to seek clarification. The judgment emphasises that equal treatment is not an end in itself; rather the principle must be applied with regard to the overall purpose of public procurement, which is to ensure healthy and effective competition and to allow a proper evaluation of tenders. In those circumstances, a contracting authority is obliged is to seek clarification where it is clear that the details of a tender require clarification or where it is a question of the correction of obvious clerical errors; clarifications should then be permitted where they are not substantial and do not amount to the submission of a new bid (which will be a matter of judgment for the evaluators).

This judgment will be of widespread interest to both economic operators and contracting authorities as regards the correct treatment of non-compliant tenders and the circumstances in which exclusion of a tender is permitted.

Valentina Sloane KC acted for Optima Health (instructed by Eversheds Sutherland (International) LLP).

Azeem Suterwalla and Alfred Artley acted for DWP (instructed by the Government Legal Department).

A copy of the judgment can be found here.

The High Court (Jefford J) has given judgment (1) in favour of lifting the Automatic Suspension under the PCR 2015, to permit the NHS Northamptonshire Integrated Care Board (ICB) to contract with its preferred bidder, and (2) dismissing the Claimant’s application for expedition in the proceedings.

The proceedings concern a Part 7 claim brought against the procurement of a contract to provide an Urgent Care Centre in Corby.  The Claimant is the incumbent operator of the previous service. It was unsuccessful in the procurement.

The Court decided the application on the balance of convenience, finding that it was “firmly in favour” of lifting the Automatic Suspension. Notably, the Claimant declined to provide the standard cross-undertaking to the ICB or the interested party successful bidder. The Court held that this was the strongest reason not to grant the application (§82).

Following consequential matters, the Court ordered a temporary stay of execution its order, pending any application for permission appeal by the Claimant to the Court of Appeal, which it directed must be made on an expedited timetable.

Judgment is available here.

Jen Coyne acted for the NHS Northamptonshire Integrated Care Board, instructed by James Barry and Libby McKane at Mills & Reeve LLP.

Vauxhall Motors Limited and others v Denso Automotive UK Ltd and others [2025] EWHC 213 (Ch), judgment 5 February 2025, Bacon J

Philip Moser KC, Alan Bates and Jack Williams of Monckton Chambers have acted successfully for the First Defendant (an alleged “anchor” defendant) and others who challenged the jurisdiction of the English courts in claims concerning their alleged participation in a worldwide car-cooling parts cartel.

The application was a forum non conveniens jurisdictional challenge, once again made possible since Brexit and the UK withdrawal from the Brussels Regulation regime. The underlying action was for competition law damages brought by a group of car manufacturers, including the French Stellantis group and others, against certain suppliers of car-cooling components.

The Court accepted the defendants’ arguments that the appropriate forum for the proceedings was France, and not England and Wales, Mrs Justice Bacon concluding that that was the jurisdiction with which they had the closest connection. The claims against the UK-based defendants were stayed generally, the orders permitting service out on the remaining defendants were set aside, and the claims against those defendants were dismissed.

This is now the second reported forum non conveniens challenge to jurisdiction in a competition law context since Brexit, following Mercedes-Benz v Continental Teves [2023] EWHC 1143 (Comm). Both have succeeded.

The Judgment can be found here.

Philip Moser KC, Alan Bates and Jack Williams of Monckton Chambers, instructed by Linklaters, acted for the successful DENSO group of Defendants

 

The FTT has released its decision rejecting Lloyds Asset Leasing Limited’s (LAL) appeal by which it claimed to be entitled to claim cross border group relief (CBGR) in the UK for losses suffered in Ireland. LAL was one of 100 subsidiaries of the Lloyd’s Banking Group (LBG) to whom Bank of Scotland Ireland (BOSI) sought to surrender losses it incurred in relation to its banking business in Ireland following the financial crisis of 2008.

HMRC disallowed LAL’s claim for CBGR on the basis that the qualifying loss conditions in s119 CTA 2010 were not satisfied and, in the alternative, s127 CTA should apply as the “main purpose or one of the main purposes” of the arrangements by which BOSI’s losses were sought to be surrendered was to secure that the amount in question may be surrendered for the purposes of group relief.

The FTT found that LBG satisfied the qualifying loss condition in s119 and the precedence condition in s121 but that s127 applied to exclude group relief as the main purpose or one of the main purposes of the arrangements put in place by LBG to exit Ireland was to secure CBGR for BOSI’s accumulated losses.

The Decision can be accessed here.

Brendan McGurk KC acted for HMRC along with Akash Nawbatt KC and Kate Blamer of Devereux Chambers.

The Court of Appeal has today dismissed an appeal brought by Motorola against the CMA’s decision to impose a price cap on its Airwave telecoms network. Airwave is used by police, fire, ambulance and other emergency services. The CMA’s charge control, made under powers in the Enterprise Act 2002, prevents Motorola from overcharging the Government around £200m each year.

Last year, Motorola brought judicial proceedings against the CMA’s decision in the Competition Appeal Tribunal on grounds that the CMA had misunderstood the relevant competitive constraints and wrongly assessed the profitability of the Airwave network. The CAT rejected those arguments in a judgment handed down in December 2023. Motorola sought to revive those arguments before the Court of Appeal, which ordered a “rolled up” hearing.

Today’s judgment rejects Motorola’s arguments and refuses permission to appeal (as a result preventing Motorola from taking its case to the Supreme Court). Subject to a review in 2026, the cap will continue in place in 2029.

Josh Holmes KC and Will Perry acted for the CMA.

Anneli Howard KC acted for the Home Office, intervening in support of the CMA. Jack Williams also acted for the Home Office at first instance.

The case has been reported in the press, for example in City AM.

HM Revenue & Customs v Sonder Europe Ltd [2025] UKUT 00014 (TCC), 14 January 2025

The Upper Tribunal (Tax and Chancery Chamber, Mr Justice Trower and Judge Jonathan Cannan) has allowed HMRC’s appeal from Sonder Europe Ltd v HMRC [2023] UKFTT 610 (TC). The UT has held that Sonder’s supplies of short-term travel accommodation did not fall within the scope of the Tour Operators’ Margin Scheme (“TOMS”) for the purposes of VAT.

Sonder leased self-contained apartments (furnished and unfurnished) from third party landlords for terms of between two and ten years. The landlords’ supplies were exempt supplies of land, not taxable supplies of travel accommodation. Sonder granted licences to occupy the apartments for periods ranging from a single night to a month. During the relevant VAT periods, the average stay was five nights. Sonder accounted for VAT under the TOMS on its margin, namely the difference between the total amount, exclusive of VAT, payable by the customer and the cost to Sonder payable to the landlord. HMRC contended that Sonder’s supplies did not fall within the TOMS and that Sonder was required to account for VAT under the ordinary rules at the standard rate on the full value of the consideration received.

The FTT held that the TOMS applied and allowed Sonder’s appeal. The UT held that the FTT erred in law in failing to have regard to the requirement under the PVD that the bought-in supply be for the “direct benefit” of the traveller when interpreting and applying Article 3(1)(b) of the UK TOMS Order. The UT also held that the FTT mischaracterised the precise nature of the supplies to which the test is to be applied: although the FTT (correctly) compared the nature and extent of the physical changes made to the actual apartments, it did not compare the alterations to the full bundle of rights and interests supplied to Sonder with those which were supplied by Sonder to its customers.

Andrew Macnab acted for HMRC.

Read the Upper Tribunal’s decision here.

Read the FTT’s decision here.