R (NoteMachine UK Ltd) v the Payment Systems Regulator [2023] EWHC 2522 (Admin)

The High Court has today handed down its long-awaited judgment in a judicial review challenge which clarifies the law governing the jurisdiction of the Payment Systems Regulator (PSR), and specifically how it deals with complaints from participants in payment systems.

NoteMachine, an ATM operator, challenged a family of decisions taken by the PSR within its overall decision not to pursue an investigation in response to an application made by NoteMachine. NoteMachine had complained to the PSR about LINK decreasing the Interchange Rate which NoteMachine receives from cash withdrawals.

NoteMachine issued a claim with five grounds of challenge, of which four were given permission. The grounds given permission alleged that the PSR had made three narrow errors of law, and one error of fact and law. The grounds were:

1. The PSR failed to apply s.108 of the Financial Services (Banking Reform) Act (FSBRA) correctly in concluding that it was required to deal with NoteMachine’s application under Regulation 103 of the Payment Services Regulations 2017 (PSRs 2017) instead of under s.57 FSBRA.
2. When considering Regulation 103 PSRs 2017, the PSR failed to define and apply the concept of “discrimination” correctly as required by Regulation 103(3)(b) PSRs 2017.
3. When deciding not to take further action in relation to the issues which the Claimant raised concerning the Competition Act 1998 (CA98), the PSR erred in its approach to s.62 FSBRA.
4. In a letter of 12 March 2021, when deciding not to take further action in relation to the issues which the Claimant raised concerning CA98, the PSR erred in fact and in law by failing to appreciate that CA98 applies equally to Multilateral Interchange Fees which are set too low.

Sweeting J found that all four grounds failed following the substantive hearing, which took place on 16-17 March 2022. In addition, he held that s.31(2A) of the Senior Courts Act 1981 applied to preclude relief in relation to grounds 1, 4 and 5.

Michael Bowsher KC acted for NoteMachine, instructed by Hill Dickinson LLP.

Kassie Smith KC and Imogen Proud acted for the Payment Systems Regulator, instructed by Kingsley Napley.

The full judgment can be read here.

Intelligent Money Ltd V Hm Revenue & Customs [2023] UKUT 00236 (TCC), 26 September 2023.

The Upper Tribunal (Tax and Chancery Chamber), Mr Justice Rajah and Judge Ashley Greenbank, has dismissed Intelligent Money’s (“IML”) claim that fees it received in connection with the provision, operation and administration of self-invested personal pension schemes (SIPPs) were consideration for exempt supplies of “insurance transactions” within the meaning of Group 2 of Schedule 9 to the Value Added Tax Act 1994 (“the Insurance Exemption”). The Upper Tribunal upheld the decision of the First-tier Tribunal, [2022] UKFTT 0338 (TC), albeit for reasons that differed in some respects.

A SIPP is a tax-efficient means whereby individuals may save for their retirement, set up and operated in accordance with the provisions of the Finance Act 2004 and the Pensions Act 2008. A SIPP member’s investments are held on trust and administered by the SIPP trustee and operator. The member is solely responsible for all decisions relating to the purchase, retention and sale of all investments within the SIPP. The value of the SIPP may only be applied to provide benefits in accordance with the scheme rules, which include (1) payments to the member on reaching retirement age and/or (2) payments to his or her nominees on death, pursuant to a tax-efficient discretionary trust structure.

The UT held that IML’s administration services did not involve any assumption of risk to the member and did not meet the necessary conditions for an “insurance transaction”, in accordance with the consistent case law of the CJEU, starting from Card Protection Plan Ltd v. CEC (Case C-349/96) and including United Biscuits (Pension Trustees) Ltd v RCC (Case C-235/19). IML’s services lacked the essential feature of an “insurance transaction”, namely that, under the contractual relationship between the insured and the insurer, the insured obtains some protection from a relevant risk or uncertainty; someone other than the insured must bear the cost of the payment or the provision of the service that is provided on the materialization of that risk or uncertainty. Under the trust arrangements of the SIPP, the provision of “life” and “death” benefits fell exclusively on the SIPP member, through the member’s accumulated fund, in which IML had no beneficial interest. For that reason, the UT, disagreeing with the FTT, considered that the SIPP was not a contract of insurance as a matter of domestic law. The UT further held that the pre-CPP decision of a VAT & duties tribunal in Winterthur Life UK Ltd v. CEC [1997] Lexis Citation 1166 was wrongly decided.

The UT further considered (obiter) that the fees paid by the member to IML were not “premiums”; they were not paid “in advance” for a benefit that may or may not arise, but were payments made after the event or for ongoing administrative services. Members’ contributions to their funds were not consideration for anything, but were held by IML on trust. The life and death benefits provided to the members, their dependants or other beneficiaries were paid out of the members’ own funds in which IML had no beneficial interest, by IML qua trustee under the powers and duties conferred by the trust deed and scheme rules; it was wrong to equate those powers e duties as a contractual obligation to provide benefits.

Andrew Macnab acted for HMRC.

Read the Upper Tribunal’s decision here.

Read the FTT’s decision here.

On 18^th September 2023, the Competition Appeal Tribunal handed down judgment in Allergan PLC & Ors V The Competition and Markets Authority concerning a CMA Decision on findings of excessive and unfair pricing of hydrocortisone tablets. The judgment is available here. The CAT upheld the finding of excessive and unfair prices by the Appellants (and largely upheld the penalties imposed on them), but quashed numerous findings and approaches taken by the CMA in its Decision (in particular, for example, its approach to market definition).

Robert Palmer KC, Laura John and Jack Williams (instructed by Linklaters LLP) appeared for the Intas Appellants.

Mark Brealey KC (instructed by Morgan, Lewis & Bockius UK LLP) appeared for the Advanz Appellants.

Josh Holmes KC, Nikolaus Grubeck, Michael Armitage and Daisy Mackersie (instructed by the legal department of the Competition and Markets Authority) appeared for the Competition and Markets Authority.

In the context of ongoing national publicity regarding discharges of untreated sewage and wastewater into rivers, streams and coastal waters, a new collective action brought in the Competition Appeal Tribunal alleges that Severn Trent is infringing UK competition law.

The proposed class representative, Professor Carolyn Roberts, is a water resource management specialist.

Severn Trent is in an effective monopoly position, and can charge monopoly prices subject to control by Ofwat and the competition rules on abuse of dominance.  Ofwat’s price control in the sewerage sector is performance-related. Professor Roberts alleges that Severn Trent has misled Ofwat and the Environment Agency as to the number of pollution incidents associated with its sewerage network, with the result that it has been able to charge higher prices to its customers for its sewerage services under Ofwat’s controls than it would have been able to charge had it reported accurate information. The claim against Severn Trent is brought on behalf of 8 million customers who could each be owed a share of c. £330 million.

The claim against Severn Trent is the first in a group of collective claims planned against sewerage companies in England.

It has received extensive media coverage, including by the BBC, the Financial Times, the Guardian, the Independent, the Mirror and the Telegraph.

Jon Turner KC, Julian Gregory, Nikolaus Grubeck and Antonia Fitzpatrick are acting on behalf of Professor Roberts, instructed by Leigh Day (see Leigh Day’s press release here).

IGT v Gambling Comission [2023] EWHC 1961 (TCC)

Judgment has been handed down today in a preliminary issue in IGT v Gambling Commission, International Gaming Technology’s claim against the Gambling Commission in respect of the award of the Fourth National Lottery Licence (4NL).

This is part of the long-running procurement litigation about the award by the Gambling Commission of the 4NL concession to a Czech-owned company, Allwyn. Incumbent supplier Camelot brought a procurement law challenge, as did the key subcontractor, the IGT Group, which comprises both UK and US companies. After the lifting of an automatic suspension on contract-making (see here) and permission to appeal being granted to the Court of Appeal, in an unusual move Allwyn bought the other bidder, Camelot, ending the appeal process. IGT’s claim then continued alone in the High Court as a damages-only claim.  This led to the preliminary issue to determine (i) generally, whether subcontractors have standing in procurement claims, and (ii) specifically, whether US companies have standing in UK service concession contract claims.

The judgment is of obvious wider interest to public procurement lawyers and clients, as it considers and clarifies the requirements for a claimant to have standing under the Concession Contracts Regulations 2016 (CCR), and thus also under the procurement regulations more generally. Further, it determines the standing requirements for bidders from third countries, specifically other GPA states, in service concession contract cases. This is the first time that either of these matters have been fully argued and decided in the UK courts.

Sitting as a first instance judge in the TCC, Coulson LJ determined that none of the IGT Claimants had standing to bring claims under the CCR.

In the judgment dealing with subcontractors Coulson LJ considered and determined a number of issues of EU and UK law around the meaning of the Directives and Regulations, including:

• EU law did not impose an obligation on the UK to provide standing to anyone other than the bidders in a procurement (§52);
• Although there is no general presumption, as a matter of policy, that the UK did not “gold-plate” EU Directives, when the CCR were made the UK Government did not intend to gold-plate the Remedies Directive in order to provide standing to other categories of interested persons, including non-bidders (§120 – 121);
• The phrase “economic operator” when considered in the context of the CCR did not include non-bidders (§160).

The Court’s conclusion on the first issue was that subcontractors (whether “key” or otherwise) do not have standing to bring a claim under the CCR (nor, by implication, under the Public Contracts Regulations 2015 and the Utilities Contracts Regulations 2015). Earlier UK cases that may have suggested otherwise, and which apparently proceeded on the basis of standing for subcontractors, (like Sysmex) notwithstanding.

In the part of the judgment dealing with service concession contract challenges by US companies, Coulson LJ found that such bidders do not have standing, and that this would be the case even if they were bidding as the main contractor.

In this regard the judgment considers the interaction between the CCR and the WTO Agreement on Government Procurement (“GPA”). This arose as one of the IGT Claimants is a US company and so was required to establish that it was an economic operator to whom a duty was owed under regulation 51 CCR. Coulson LJ determined that the competition was not a procurement to which the GPA applied on the basis that neither lottery service contracts nor service concession contracts appear in the Annexes to the GPA. Accordingly, the US company-claimant did not have standing to challenge the procurement in any event (§196).

The Court’s conclusion on the second issue means that US companies, whilst they might bid for – and potentially win – a UK service concession, do not have recourse to the High Court review procedure under the CCR if they wish to challenge such a procurement decision.

Philip Moser KC, Ewan West and Clíodhna Kelleher of Monckton Chambers acted for IGT.

In the Merchant Interchange Fee Umbrella Proceedings, the CAT has today handed down its judgment on the “Volvo limitation issues”: [2023] CAT 49. Those issues were, principally: (i) did the CJEU find in Case C-267/20 Volvo that, as a matter of EU law, limitation did not begin to run against a claimant with a competition law damages claim until the relevant infringing activity ceased; and (ii) if so, should the CAT follow Volvo (which was handed down after 31 December 2020 or Implementation Period Completion Day / “IPCD”)?

The CAT’s judgment is of very wide significance because it represents the first explicit analysis in UK domestic law of the effect that the EU (Withdrawal) Act 2018 (“EUWA”) has had upon rights accrued under EU law prior to IPCD, and in particular of whether post-IPCD EU judgments are binding on UK courts adjudicating on such rights.

The Tribunal unanimously concluded, as to question (i) above, that CJEU in Volvo had made no binding finding on limitation in any event. However, this point remains under consideration by the CJEU in other cases.

Of wider importance in the UK, however, are the Tribunal’s responses to question (ii) which settle, in the negative, any argument as to whether post-IPCD EU judgments have binding effect in relation to rights accrued under EU law before IPCD.

On that issue, the merchant claimants argued that claims in respect of facts occurring before 31 December 2021 represented “accrued rights”, which ought to have been unaffected by Brexit, including as to the binding effect of post-IPCD EU judgments [50]-[51].

However, in the judgment of the majority (Marcus Smith J and Ben Tidswell), Parliament, by its enactment of EUWA, effected the “translation” of all rights, claims and remedies that had existed under EU prior to 31 December 2021 into rights, claims and remedies under retained EU law (i.e. domestic law), which are now preserved by virtue of section 4(1) of EUWA.

As majority put it, the UK’s “entire legal order has undergone a paradigm shift” [69(2)], and the preservation of accrued rights in an unchanged legal form would have been “inconsistent with what Parliament intended” by Brexit [69(1)].  Importantly, section 16 of the Interpretation Act 1978 had not been triggered to preserve those rights because no enactment under which they had substantively accrued had been repealed. Rather, in the majority’s analysis, the precise effect of the repeal of the European Communities Act 1972 had been to close a “gateway” through which substantive EU law rights had previously flowed into domestic law [69(3)].

Roth J’s concurring minority judgment did not agree that section 4(1) of EUWA was the mechanism by which accrued rights were converted into rights under retained EU law, noting that “[s]omewhat surprisingly, the 2018 Act does not set out a clear answer” as to what that mechanism was [101]. Nonetheless, Roth J considered that “the statutory scheme, considered as a whole, indeed has, in effect, converted or ‘translated’ rights which had accrued under EU law into rights under retained EU law, save insofar as it otherwise expressly provides” [102].

Ronit Kreisberger KC, Philip Woolfe, and Antonia Fitzpatrick, with Oliver Jackson at 11KBW, acted on behalf of a group of merchant claimants, instructed by Stephenson Harwood LLP.

Anneliese Blackwood with Nicholas Saunders KC and Aidan O’Neill KC appeared on behalf of the Class Representative in the Merricks Proceedings instructed by Willkie Farr & Gallagher (UK) LLP.

The judgment is available here.

The Supreme Court today has upheld a challenge to funding agreements relied on in collective proceedings before the Competition Appeal Tribunal.  The agreements sought to fund collective proceedings against truck manufacturers relating to the European Commission’s Trucks infringement decision in return for a share of any damages if the claims succeed.

The Supreme Court accepted Paccar and DAF’s argument that such agreements fall within the statutory definition of “claims management services” and “damages-based agreements”.  As a result, they are unenforceable in opt-out proceedings and unenforceable in opt-in proceedings unless they comply with the Damages-Based Agreement Regulations 2013. The Supreme Court overturned earlier rulings by the Competition Appeal Tribunal and Divisional Court.

The decision is likely to have far reaching consequences for the litigation funding industry as a whole.

Click here to read more on the Supreme Court website.

Rob Williams KC and David Gregory acted for the Appellants.

 

The Court of Appeal has today handed down judgment in various appeals against the CAT’s judgment of 8 June 2022 ([2022] CAT 25) in the Trucks collective proceedings.

In its judgment, the CAT granted an application for a collective proceedings order (CPO) by the Road Haulage Association (RHA), authorising it to act as the class representative on behalf of both new and used truck purchasers in claims against the five truck manufacturers who were the addressees of the Commission’s Settlement Decision in Case 39824 – Trucks. By the same judgment, the CAT dismissed an application for a CPO brought by UK Trucks Claim Limited (UKTC).

The key issue for the Court of Appeal was whether the CAT erred by authorising the RHA to act as the class representative for both new and used truck purchasers. The appellants (MAN, DAF and UKTC) argued that the inclusion of both sets of purchasers gave rise to a conflict of interest, because used truck purchasers would want to argue for a high level of resale pass-on, while new truck purchasers would want to minimise the extent to which any overcharge they faced was passed on by arguing for a low level of resale pass-on.

The Court of Appeal found errors in the CAT’s approach to the conflicts issue: contrary to the CAT’s judgment, the presence of both types of purchaser gave rise to an actual conflict, which needed to be addressed at the start of the proceedings, not left to a later stage. The Court therefore directed that the matter be remitted to the CAT for it to give directions to manage the conflict, including by way of separate representation and funding.

The Court of Appeal rejected UKTC’s other grounds of appeal, which argued that its application should have been preferred over that of the RHA, and that the CAT made errors in its assessment of the UKTC application. However, it acceded to UKTC’s request that its application be stayed pending final resolution of the conflict issue in the RHA application.

Finally, the Court of Appeal dismissed arguments by Daimler and Iveco that the CAT’s judgment should be upheld for the different reason that UKTC’s application had failed to satisfy the eligibility requirement in section 47B(5) of the Competition Act 1998, as the matters raised fell within the Tribunal’s area of discretion and did not amount to errors of law.

Meredith Pickford KC and Nikolaus Grubeck (instructed by Travers Smith LLP) acted for DAF.

Paul Harris KC, Ben Rayment, Michael Armitage and Alexandra Littlewood (instructed by Macfarlanes LLP) acted for Daimler.

 

 

 

The Competition Appeal Tribunal (“CAT”) has dismissed a judicial review challenge against the CMA’s decision to reject a novel merger remedy proposed by a provider of cloud-based services for property transactions.  In a judgment issued on 10 July 2023, the CAT dismissed all three grounds of challenge advanced by Dye & Durham (“D&D”), holding that the CMA was entitled to be concerned about the impact that the proposal could have on competition between the merging parties.

In August 2022, the CMA blocked the merger between D&D and TMG, both of whom provide property search report bundles in England and Wales, ordering D&D to sell TMG to an independent approved purchaser.  D&D agreed and provided final undertakings to the CMA in October 2022.  Half-way through the sale process, however, D&D sought the CMA’s approval for a novel process whereby TMG would be divested to D&D’s shareholders and then listed for sale on the AIM stock exchange.  The rationale for the proposal was to maximise the price that could be obtained for TMG in light of a perceived downturn in the UK property market since the final undertakings were given.

The CMA rejected the proposal, finding that:

1. It would require a variation to the final undertakings, which envisaged a private sale to a single approved purchaser.
2. No such variation was justified.
3. In any event, the proposal would result in D&D and TMG having identical shareholders, which would compromise their incentive and ability to compete.

D&D challenged each of those findings before the CAT, but the CMA’s decision was upheld in its entirety.  The CAT’s observations on the impact of common shareholdings on competition will be of particular interest for practitioners and economists.  This is a hot topic in competition circles and has generated a considerable amount of literature both in Europe and the USA.  Whilst the CAT acknowledged that this was a matter of ongoing debate, it held that it was reasonable for the CMA to conclude that there were competition risks in light of market conditions and in circumstances where the 100% overlap between the shareholders could well reduce incentives to compete.  The CAT confirmed that it was not incumbent on the CMA to obtain its own empirical evidence in relation to the impact of common shareholdings.

The CMA was represented by Ben Lask KC and Thomas Sebastian.  A copy of the judgment is here.

The Secretary of State for Health & Or v Servier Laboratories Limited & Ors

The Court of Appeal has dismissed an appeal by Servier against a landmark judgment given by the High Court in 2022.

The High Court’s judgment represented a major victory for the NHS in claims which it has brought against Servier for serious infringements of competition law, in relation to the sale and supply of the blood pressure drug perindopril (brand name Coversyl).

Those claims concern actions between 2005 and 2007, in which Servier entered into “pay for delay” agreements with generic drug manufacturers, under which the generics companies agreed not to enter the market for supplying perindopril. The NHS claimants allege that, as a result of Servier’s conduct, they paid hundreds of millions of pounds more for perindopril than they would otherwise have paid, and claim damages for the difference. The question of whether Servier’s conduct infringed competition law is awaiting final determination by the CJEU.

Pending the conclusion of the CJEU proceedings, the High Court judgment dealt with the preliminary issue of whether, as Servier argued, any damages recoverable by the NHS should be reduced as a result of the NHS’s failure to take steps to avoid buying Coversyl, and instead purchase cheaper generic alternatives. Mr Justice Roth rejected Servier’s arguments in their entirety, commenting that “a disinterested observer might find it surprising that such arguments would, or could, be advanced by a defendant found to have committed a very serious infringement of competition law”.

Servier appealed to the Court of Appeal, arguing that Roth J had erred in dismissing all of its case on the preliminary issue without fuller disclosure being given by the NHS claimants.

In a judgment handed down this week, the Court of Appeal unanimously dismissed Servier’s appeal, finding that “Servier’s contentions on this appeal…run entirely counter to the basis on which the [preliminary issue] trial was directed and maintained”.

The Court of Appeal’s judgment represents a further victory for the NHS claimants in this long-running litigation. It is anticipated that a full trial to determine the level of damages due to the NHS claimants will be listed following the conclusion of the European proceedings, in which a final judgment is expected later this year.

The Court of Appeal’s judgment can be found here.

Jon Turner KC and Josh Holmes KC acted for all of the NHS bodies.

Philip Woolfe (instructed by Peters & Peters Solicitors LLP) acted for the English health authorities.

Julian Gregory  (instructed by RPC LLP) acted for the Scottish / NI health authorities.

Laura Elizabeth John and Ciar McAndrew (instructed by Geldards LLP) acted for the Welsh health authorities.