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.

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.

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

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.

The Supreme Court has allowed the Secretary of State’s appeal in R(Fratila) v Secretary of State for Work and Pensions. The judgment can be found here.

The case concerned the scope of application of Article 18 TFEU, which prohibits discrimination on grounds of nationality. The applicants had obtained “pre-settled status” under the UK’s EU Settlement Scheme. Those rules created new domestic rights of residence for certain EU citizens in the UK prior to IP Completion Day, in preparation for Brexit. Those who satisfied the rules but had not yet completed five years of lawful presence in the UK were granted “pre-settled status”. Legislation provided that pre-settled status did not itself satisfy the requirement to have a “right to reside” in order to claim Universal Credit (and certain other benefits).

The facts of the case concerned the position prior to IP Completion Day.

The applicants argued that this gave rise to direct discrimination on grounds of nationality, contrary to Article 18 TFEU, in reliance on a line of cases including C-456/02 Trojani. They argued that once a citizen is granted a right of residence in another Member State under the provisions of domestic law, they are entitled to the same benefits as a national of that state also having a right of residence. The Court of Appeal accepted this argument, and the majority concluded the rules were directly discriminatory and could not be justified. The Secretary of State appealed to the Supreme Court.

In July 2021 in Case C-709/20 CG, the CJEU ruled that an EU citizen could only rely upon Article 18 TFEU if their residence in a host Member State complied with the conditions laid down in Directive 2004/38 EC, the Citizenship Directive.

As the applicants in the Fratila case had not complied with those conditions, the Supreme Court ruled that they could not rely on the EU principle of non-discrimination to claim a right equal treatment in respect of entitlement to Universal Credit, and allowed the appeal.

The case is of importance in establishing that rights of residence in domestic law do not give rise to a right of equal treatment under Article 18 TFEU in EU law.

Tim Ward QC acted for the Secretary of State

At the return date for a freezing injunction granted ex parte, Will Hooper, acting pro bono for the Respondent under the Chancery Bar Litigant in Person Support Scheme (CLIPS), successfully obtained the discharge of the injunction in circumstances where the Applicant had failed to show a real risk of dissipation of the Respondent’s assets. Will also secured a litigant-in-person costs order under CPR r. 46.5 in favour of the Respondent for the Respondent’s work in response to the application; and a costs order in favour of the Access to Justice Foundation under CPR r. 46.7 and s. 194 Legal Services Act 2007.

Monckton Chambers is proud to support the CLIPS regime and its important work in promoting access to justice for all.

The Competition Appeal Tribunal handed down judgment on 26 November 2021 in Dune Group Limited and ors v Mastercard and Visa and ors [2021] CAT 35. The judgment represents the latest in a long line of cases considering whether the card schemes rules, obliging the payment of an interchange fee by acquirers to issuers in respect of each transaction settled over their payment platforms constitutes a breach of the Chapter I prohibition and/or Article 101 TFEU. The Claimants brought an application for summary judgment in respect of their claims relating to the payment of UK and other European domestic MIFs, commercial card MIFs and Inter-regional MIFs, including for the period after the coming into force of the Interchange Fee Regulation (the “IFR”), arguing that the essential factual basis of the present claims is materially indistinct from the basis of the previous Court of Appeal ([2018] EWCA Civ 1536) and Supreme Court ([2020] UKSC 24) judgments considering MIFs.

The Tribunal held that both card schemes had breached the Chapter I prohibition and/or Article 101 TFEU for the period up to the coming into force of the IFR in respect of consumer intra-EEA MIFs and UK, Irish, Gibraltar and Malta domestic consumer MIFs. For the period after the coming into force of the IFR, the Tribunal considered that the question of whether there is a restriction of competition would need to be resolved at trial.

In respect of Inter-regional, Commercial Cards and Italian domestic MIFs, the Tribunal considered that neither the European or domestic appellate judgements were binding on the question of whether Article 101(1) had been breached and again this was a matter which needed to be heard at trial.

However, the Tribunal found against Visa, in finding that although set by Visa Inc after 19 June 2016, the Visa scheme MIFs constituted an agreement between undertakings or a concerted practice for the purpose of Article 101(1) and the acquisition of Visa Europe by Visa Inc does not give rise to an arguable defence to the claims. Moreover, although Visa Europe is not responsible for setting the Inter-regional MIF, there remained an agreement or concerted practice for the purpose of Article 101(1) in respect of those MIFs – the European acquirers having agreed with Visa Europe that they will pay oversees issuers the inter-regional MIF set by Visa Inc.

Kassie Smith QC and Fiona Banks appeared on behalf of the Claimants.  Click here for the CAT’s judgment.

The Privy Council has today handed down judgment in Gibfibre Ltd v Gibraltar Regulatory Authority [2021] UKPC 31, upholding the regulator’s decision that a rival network operator had no right of access to a data centre operated by Gibtelecom Ltd.

Gibtelecom is the state owned former monopoly provider of telecoms services in Gibraltar. It also operates a data centre which is a significant centre for the international online gambling industry. Gibtelecom provides electronic communications services to the servers stored by the data centre’s customers. Gibfibre Ltd, which operates a rival fibreoptic network, had sought to establish a right under the Access Directive to provide services directly to the data centre’s customers in competition with Gibtelecom. The Gibraltar Regulatory Authority (GRA) had accepted Gibtelecom’s submission that it had no power to enforce such a right. Gibfibre appealed.

The Gibraltar Court of Appeal had determined that although the data centre formed no part of Gibtelecom’s network, with the result that there was no right of access pursuant to any SMP remedy, the GRA nonetheless had a broad discretion under Article 5 of the Access Directive to require Gibtelecom to provide such access. The GRA appealed to the Privy Council against that decision, and Gibtelecom intervened in support.

Lord Hamblen, giving judgment for the majority, accepted Gibtelecom’s submission that the requested access fell outside the scope of the Access Directive altogether, and that therefore Article 5 could not endow the GRA with the power to require an operator to allow access to physical infrastructure where the relevant infrastructure could not be described as being part of Gibtelecom’s own electronic communications network or its associated facilities.

Lord Sales, concurring in the result, said that had there still been power to do so, he would have made a reference to the CJEU on the point, which was not acte clair. However, there was no longer any power to make a reference, and the the CJEU would have been unlikely to reach a different conclusion in any event.

The judgment is available here.

Robert Palmer QC acted for Gibtelecom Ltd.

In a judgment issued today the Court of Justice of the EU held that Article 49 TFEU (freedom of establishment) limited the ability of the UK, in its insolvency rules, to give less favourable treatment to a bankrupt’s pension in a scheme registered in another Member State than it would have given had the pension been in an equivalent UK pension scheme.

The case concerned an Irish property developer, Mr M, who had put assets into an Irish pension scheme approved under Irish tax law. Subsequently, he moved to the UK to start a self-employment as a business consultant. He was then made bankrupt in the UK. The trustees in bankruptcy claimed that the assets in the Irish scheme formed part of the bankruptcy estate. However, UK insolvency law generally excludes assets in a UK pension scheme registered with HMRC from the bankruptcy estate. Mr M argued that Article 49 of the Treaty on the Functioning of the EU required his Irish pension assets to be treated in the same way as if they were in a registered UK scheme. The trustees in bankruptcy argued that Article 49 did not apply. In January 2020, the High Court referred that question to the CJEU (here). It added that, if Article 49 did apply, it would be possible to “read down” the relevant statutory provisions so that the general exclusion for pension assets in UK schemes registered with HMRC also applied to equivalent schemes in other Member States.

In today’s ruling, the CJEU agreed with Mr M that Article 49 applied and that, unless there was a justification for the difference of treatment (a point not taken by the trustees before the High Court, and as to which the Court saw a number of significant difficulties) then Article 49 precluded the difference in treatment between Mr M’s assets in hisIrish pension scheme and assets in an equivalent UK scheme.

This reference was made before the end of the transition period on 31 December 2020: under Article 86 of the Withdrawal Agreement the Court of Justice of the EU continues to have jurisdiction to rule on references from UK courts made that date, and the ruling is binding on the UK.

George Peretz QC acted for Mr M in the High Court and in the Court of Justice of the EU.

The Supreme Court today handed down judgment in Lloyd v Google [2021] UKSC 50.

Allowing Google’s appeal, the Supreme Court held that damages cannot be awarded under the Data Protection Act 1998 for “loss of control” of data without proof that it caused financial damage or distress. On that basis, it concluded that the claim was not suitable to proceed as a representative action, because compensation for the alleged breaches of data protection law would need to be individually assessed. Delivering the single agreed judgment of the Court, Lord Leggatt stated: “In order to recover compensation under the DPA 1998 for any given individual, it would be necessary to show both that Google made some unlawful use of personal data relating to that individual and that the individual suffered some damage as a result” (§8).

The Supreme Court, however, limited its analysis to the old data protection framework and did not opine on the wider merits and desirability of a representative action of this kind. It thus left open the possibility of future representative actions in data protection cases being brought under the UK GDPR and the Data Protection Act 2018, or for misuse of private information.

The judgment is available here. A detailed case note by Laura Elizabeth John is here.

Gerry Facenna QC and Nikolaus Grubeck acted for the First Intervener, the Information Commissioner.

Robert Palmer QC and Julianne Kerr Morrison acted for the Second Intervener, Open Rights Group.