Information Commissioner v Driver and Thanet District Council [2020] UKUT 333 (AAC)

In a judgment published on 29 December 2020, the Upper Tribunal allowed the Information Commissioner’s appeal against a First-tier Tribunal decision concerning the application of section 41(1) of the Freedom of Information Act 2000.

Section 41(1) provides an exemption from a public authority’s duty to disclose information where the information has been obtained from another person, and disclosure of the information would amount to an actionable breach of confidence.

In 2014, the High Court found that Thanet District Council had acted unlawfully in imposing a ban on live animal exports from the port of Ramsgate, and was liable to pay Francovich damages to the affected traders. Following that judgment, the Council entered into confidential settlement agreements with a number of the affected traders.

The Respondent in the present case asked the Council for disclosure of the names of the parties with whom it entered into settlement agreements. The Council refused to disclose the names of the parties. The Commissioner upheld the Council’s refusal to disclose on the basis that the information was exempt from disclosure under section 41(1).

The First-tier Tribunal, however, considered that the information was not exempt under section 41(1), as the names of the parties did not amount to information “obtained” from another person. The Commissioner, who was not represented at the First-Tier Tribunal hearing, appealed to the Upper Tribunal.

The Upper Tribunal accepted the Commissioner’s arguments that the First-tier Tribunal had been wrong to find that the names of the exporters did not amount to information “obtained” from third parties. In particular, the Court of Appeal’s decision in Browning v Information Commissioner [2014] EWCA Civ 1050 was high authority for the proposition that parties’ names are not mutually agreed terms, but rather factual information obtained by the public authority from an applicant. In addition, the First-tier Tribunal had been wrong to focus on the question of whether the parties’ names are distinguishable from the other, mutually agreed contractual terms.

The case has been remitted to the First-tier Tribunal to consider the outstanding grounds of appeal against the Commissioner’s decision notice.

Alexandra Littlewood acted for the Information Commissioner.

A copy of the judgment is available here.

While Monckton Chambers has always been proud to be one of the leading sets of EU law chambers, on December 8th two of its members set a new record for being last. Ian Rogers QC and Raymond Hill were the final British advocates to appear before the Court of Justice in Luxembourg during the UK transition period.

Ian and Raymond represented the UK in Case C-213/19 Commission v. United Kingdom, which is an infraction proceeding brought by the Commission claiming that the UK is responsible for losses of customs duties and VAT own resources caused by the fraudulent undervaluation of imports of Chinese textiles and footwear into the EU via UK ports. The Commission is seeking an order for approximately 2.7 billion euro, plus interest.

Although this case is likely to be one of the last UK cases to be heard by the CJEU, both Ian and Raymond remain eligible to appear before the CJEU as Irish qualified barristers. And Monckton Chambers is heavily involved in the legal effects of the new relationship between the UK-EU set out in the Withdrawal and Trade and Cooperation Agreements.  See EU Relations Law Blog.

The CAT has handed down a significant judgment which considers many aspects of the fining regime under the Competition Act 1998.  In doing so, the CAT has dismissed FP McCann’s appeal against the £25million penalty imposed by the CMA for FP McCann’s participation in the pre-cast concrete drainage products cartel.

FP McCann made a wide ranging challenge to the fine imposed by the CMA.  Its challenge included the contention that the CMA’s Penalty Guidance is ultra vires, because (FPM argued) fines should be assessed on a range from zero to the statutory maximum of 10% of global turnover, rather than using the CMA’s established penalty methodology.  The CAT rejected that argument and upheld the CMA’s interpretation of the statutory scheme – namely that the cap must be respected in the final analysis when imposing a penalty, but need not be treated as the top end of a range.

The CAT also considered:

• the extent to which the CMA must take into account evidence that the infringement had no effects when imposing a penalty for an object infringement;
• whether the CMA should have based its penalty on average turnover over the infringement period and not the turnover in the final year, given variability in FPM’s turnover over time;
• the application of discounts for co-operation and compliance activities
• the approach to the proportionality under the CMA’s guidance, including how far penalties should be reduced where the infringer’s business has grown through acquisitions since the infringement took place; and
• the relevance of delay to the investigation in assessing a Competition Act penalty – and in particular, whether a penalty may be reduced where the turnover on which the fine is based has increased as a result of delay to the investigation.  In this regard, the CAT departed from the EU jurisprudence, but rejected the contention that there had been unreasonable delay on the facts of the present case.

It remains for the CAT to determine whether the first statutory condition for disqualifying the directors of FP McCann is satisfied, which issue was transferred to the CAT by the High Court of Northern Ireland.

Rob Williams QC acted for the CMA.

The Judgment can be found here.

The Grand Chamber of the European Court of Human Rights has decided in Slovenia v. Croatia, no. 54155/16 that it does not have jurisdiction hear an inter-State application concerning the alleged violation of the rights of legal entity that is not a “non-governmental organisation”.

The case concerned unpaid and overdue debts owed to Ljubljana Bank by various Croatian companies on the basis of loans granted at the time of the former Yugoslavia.

The Court pointed out that, although the only reasons for which an inter-State application could be rejected at the admissibility stage on the basis of Article 35 (admissibility conditions) were the non-exhaustion of domestic remedies and the failure to comply with the six-month time-limit, it was entitled to reject an inter-State application without declaring it admissible if it was clear from the outset that it was wholly unsubstantiated, or otherwise lacking the requirements of a genuine allegation within the meaning of Article 33 of the Convention. Furthermore, emphasising the specific nature of the Convention as an instrument for the effective protection of human rights, the Court observed that, even in an inter-State case, it was always the individual who was directly or indirectly harmed and primarily “injured” by a violation of the Convention. In other words, only individuals, groups of individuals and legal entities which qualified as “non-governmental organisations” could be bearers of Convention rights and not a Contracting State or any legal entity which had to be regarded as a governmental organisation. The Court thus concluded that Article 33 of the Convention did not allow it to examine an inter-State application seeking to protect the rights of a legal entity which did not qualify as a “non-governmental organisation” and therefore would not be entitled to lodge an individual application under Article 34. In the present case, the Court saw no reason to depart from its findings in Ljubljanska Banka D.D. v. Croatia (dec.), no. 29003/07, 12 May 2015 to the effect that Ljubljana Bank did not enjoy sufficient institutional and operational independence from the State and could not therefore be regarded as a “non-governmental organisation” within the meaning of Article 34. Accordingly, Article 33 did not empower the Court to examine an inter-State application alleging a violation of any Convention right in respect of this legal entity.

To view the judgment, please click here.

Croatia was represented before the Grand Chamber by Jeremy McBride.

Colley v Shuker & ors, Freedman J [2020] EWHC 3433 (QB)

This is the latest judgment against the Motor Insurance Bureau (MIB) in a case where it refused compensation to a passenger victim of a road traffic accident not covered by insurance. The case follows the establishment of the principle that there should be no gaps in the duty under the EU Motor Insurance Directives to compensate the victim (see Delaney v Secretary of State for Transport [2015] 1 WLR 5177; news item here) and that the MIB is the responsible emanation of the state for that purpose in the UK (see Lewis v Tindale & ors [2019] 1 WLR 6298; news item here).

The MIB nonetheless denied that it was such an emanation for the purposes of a claim in the circumstances of this case and that the correct claim was for Francovich damages against the Secretary of State.

The Claimant was a passenger in a car crash. The vehicle was covered by a policy of insurance at the time of the accident, but the driver was not insured to drive it, a fact which the Claimant knew. The insurer later invalidated the insurance under section 152(2) of the Road Traffic Act 1988 (now repealed) and successfully resisted liability towards the Claimant. The Claimant turned to the MIB as insurer of last resort.

The MIB had argued, first, that its duty under Article 10 of Directive 2009/103/EC to pay compensation where the general insurance obligation in Article 3 of that Directive “has not been satisfied” was limited to cases where there is an unidentified vehicle or an uninsured vehicle, which the MIB contended did not extend to the present facts. It argued (relying on the CJEU case of C-287/16 Fidelidade) that the insurance obligation had been satisfied by the taking out of a policy. The Court held that the phrase that the insurance requirement “has not been satisfied” embraced more than just unidentified or uninsured vehicles and was apt to include the present case where the vehicle was insured but a vagary of the national legislation of the Member State gave rise to the insurance obligation not being satisfied.

The MIB argued, secondly, that the case fell within the exception in Article 10(2) of the 2009 Directive where “the Claimant voluntarily entered the vehicle which caused [him] the… injury when … [he] knew the vehicle was uninsured.” The Court held that this was a matter of Community law, as decided by the CJEU in Case C-442/10 Churchill and Fidelidade and meant knowledge that the vehicle was uninsured rather than the driver not being insured.

Judgment for the Claimant. Reference to the CJEU refused, the Court finding that the expiry of the Transitional Period on 31 December 2020 did not alter the test to be applied in deciding whether or not to make a reference.

Philip Moser QC acted for the successful Claimant, instructed by Irwin Mitchell.

A copy of the Judgement is here.

 

In a historic judgment delivered today, the Supreme Court has comprehensively upheld the decision of the Court of Appeal and in doing so has definitively set aside the original judgment of the Competition Appeal Tribunal (CAT). It has dismissed all of Mastercard’s efforts to stop the collective action proceeding. The Supreme Court has ruled that the CAT’s judgment contained errors of law and that the CAT mis-directed itself in how it applied the new legislative regime. Not only has the Supreme Court today conclusively set aside the refusal to permit the collective action, the judgment contains numerous finding in favour of Mr Merricks. Significantly, the Supreme Court has determined that the CAT should never have found that Mr Merricks would be unable at trial to have a reasonable prospect of showing that the class had suffered significant loss. The Supreme Court also ruled that whilst it may be difficult to work out how much damage Mastercard has caused to UK consumers, that is not a reason for a court to deny a trial to a class that has a reasonable prospect of showing that it has suffered loss. UK consumers can now look forward to finally receiving compensation for the losses created by Mastercard’s illegal actions.

This is the first mass consumer claim brought under the new collective action regime introduced by Parliament in the Consumer Rights Act 2015. The legislation was designed to enable collective actions to be brought by a class that has suffered loss as a result of competition law breaches.

Paul Harris QC, said: “This judgment represents a major step forward in the development of consumer protection law, just as Parliament intended. Acting on behalf of 46 million consumers in the UK’s biggest ever damages action, has, without doubt, been the biggest challenge of my career to date.”

Paul Harris QC leads on behalf of the claimants in Walter Hugh Merricks CBE v Mastercard Inc. instructed by Quinn Emanuel, lead partner, Boris Bronfentrinker.

Read full client press release here.

Read judgment here and Supreme Court press release here.

You can also read here the detailed case note by Michael Armitage.

An Independent Disciplinary Panel appointed by the Rugby Football Union (RFU) has given judgment in a high-profile case concerning breaches of COVID-19 protocols by 13 professional rugby players which led to the recent cancellation of the Quilter cup match between Barbarian FC and England.

The 13 players were charged with various breaches of RFU rule 5.12, on the basis that their conduct was prejudicial to the interests of the Union / the game.

In recognition of the very substantial mitigation that was advanced by the players, the Panel significantly reduced the sanctions that it imposed. The Panel’s judgment addresses a number of points of principle that will be of wider significance to practitioners in the field of sports disciplinary matters, not to mention players and clubs.

Paul Harris QC and Michael Armitage, of Monckton Chambers, acted for the 8 Saracens players who faced charges, as well as former England international Richard Wigglesworth.

Links to the Panel’s judgment can be found here.

You can also read the detailed case note here.

Judgment has been handed down in R (MP) v Secretary of State for Health and Social Care [2020] EWCA Civ 1634, an important case in which the Court of Appeal has provided significant guidance on: (i) the scope of a common law duty of consultation based on fairness, (ii) the legal test for establishing a legally enforceable procedural legitimate expectation, and (iii) the law on procedural rights of consultation based on a public body’s past practice.

The Court of Appeal’s judgment upholds certain changes to system of charging ‘overseas visitors’ (those not ordinarily resident in the UK) for use of NHS services brought about by the National Health Service (Charges to Overseas Visitors) Amendment Regulations 2017 (“the 2017 Regulations”).

The appeal related to provisions of the 2017 Regulations, which had the effect of: (i) mandating upfront charging of overseas visitors for treatment that is not “urgent or immediately necessary”; and (ii) requiring NHS trusts to flag on their record whether an overseas visitors is chargeable.

The Appellant challenged the relevant provisions of the 2017 Regulations on the grounds that the Secretary of State had breached a legal obligation to consult before introducing the provisions.
The Court of Appeal did not accept that the Secretary of State was obliged to consult on either the ‘upfront charging requirement’ or the ‘status recording requirement’. While the Secretary of State had chosen to consult on other changes to the charging regime (e.g. the extension of charging to additional services), the two changes forming the subject matter of the challenge were properly to be analysed as “discrete, self-contained issues”, in respect of which no legal duty of consultation arose. The fact that those proposals were published in the same consultation response document as other reforms upon which the Secretary of State had consulted did not change this analysis.

The Court of Appeal also held that following an analysis of the Secretary of State’s practice in respect of changes to the charging regime for overseas visitors since 1982 that past practice was not sufficient to generate a legally enforceable procedural legitimate expectation of consultation.

The judgment is available here.

Robert Palmer QC appeared for the Secretary of State for Health and Social Care, instructed by the Government Legal Department.

Visa’s application for a preliminary reference to the CJEU on the question of the relevant counterfactual for assessing the anti-competitive effects of its default multilateral interchange fee (MIF) has been dismissed by the Competition Appeal Tribunal (CAT).

The first wave of MIF claims culminated in the Supreme Court handing down judgment in Sainsburys v Mastercard and others in June of this year following a hearing in January. Shortly before the Supreme Court handed down judgment, the CJEU gave judgment in the case of Budapest Bank on a reference from the Hungarian court on various issues arising from an agreement (the MIF Agreement) which had been entered into by Visa, Mastercard and 22 Hungarian banks to fix a common MIF to be paid by issuing banks to acquiring banks in Hungary. One of the issues before the CJEU in Budapest Bank was whether the MIF Agreement could be held to be an agreement which had the object of restricting competition. In assessing this argument, the CJEU considered the relevant factors to be taken into account in determining whether an agreement could be said to be of its very nature harmful to competition (so as to have the object of restricting competition) including indications that the MIF Agreement might in fact have had the effect of preventing the level of MIFs charged from increasing. The CJEU held that this was one of a range of relevant factors that the national court should take into account in considering the potential anti-competitive object of an agreement. Visa and Mastercard were given permission to make submissions on the relevance of the CJEU’s judgment in Budapest Bank to its appeal before the Supreme Court, and they did so.

Visa’s application for a reference was made in second-wave proceedings brought, among others, by Dune Group, Coral Racing, Odeon Cinemas, Nando’s Chickenland, JD Wetherspoon and Co-operative Group Food (the Dune Claimants). Those proceedings were transferred to the CAT in May this year.

Visa applied to the CAT for a preliminary reference to the CJEU to answer the question of whether, in order to assess whether its scheme rules imposing default MIFs have the effect of restricting competition in breach of Art 101(1) TFEU, in a situation where Visa and MasterCard operate independently setting the level of MIFs, each card scheme’s MIF should be judged against a counterfactual in which the other scheme is restrained to set zero MIFs, or against a counterfactual in which the other scheme remains free to compete by setting its own MIF independently, at higher positive rates.

The Dune Claimants argued that this question had been definitively answered by the Court of Appeal and the Supreme Court in Sainsburys v Mastercard and others (following the CJEU judgment in Mastercard) which held that the relevant counterfactual for assessing the effects of the scheme rules imposing default MIFs was a no MIF counterfactual with settlement at par. Further, they argued that the judgment in Budapest Bank addressed fundamentally different issues and did not undermine the judgments in Sainsburys v Mastercard and others. The Dune Claimants also argued that, if Visa had wished to argue that the Budapest Bank judgment affected the question of the relevant counterfactual for assessing the effects of the scheme rules imposing default MIFs, it could and should have made those arguments to the Supreme Court in Sainsburys v Mastercard and others.

The CAT dismissed Visa’s application at the end of a remote hearing on Tuesday 1 December. It indicated that it would give reasons for its judgment in due course.

The Dune Claimants were represented by Kassie Smith QC and Fiona Banks, instructed by Humphries Kerstetter.

The Competition Appeal Tribunal handed down a Judgment today which clarifies the approach to applications to transfer cases from the CAT to the High Court when the defendants wish to bring counterclaims that are outside the CAT’s jurisdiction.

Sportradar brought a claim in the CAT alleging breach of Chapters I and II of the Competition Act 1998 and Arts. 101 and 102 TFEU arising from the grant by Football DataCo to Betgenius of a long term exclusive right to collect and collate data from football stadia for supply to bookmakers who offer live or “in-play” betting (e.g. which team or player will score next).

The defendants dispute the competition claims and also wish to bring counterclaims alleging (in particular) breach of confidence and unlawful means conspiracy against Sportradar and some of the individuals Sportradar uses to gather data from within stadiums. The defendants were not able to bring those counterclaims in the CAT because they are outside the scope of the CAT’s jurisdiction.

Sportradar prepared indicative defences to the counterclaims relying (in particular) on the competition law claim.

The defendants applied to transfer the case from the CAT to the High Court so that their counterclaims could be determined with the competition case.

The CAT (Roth P.) rejected the application. He viewed the proceedings as a whole, including the potential counterclaims and identified the principles to be applied at [46] in the light of the CA judgment in Sainsbury’s v. Mastercard [2018] EWCA Civ 1536 at [358] and [359].

At [55] Roth P. found that the indicative defences to the counterclaims raise the same competition issue as is raised in the CAT proceedings, and that is a distinct issue from the other private law issues raised in the counterclaims. He ruled that absent special circumstances (which were not present here) the claim directly raising the competition issue should remain in the CAT and therefore refused the application. He indicated that the counterclaims could proceed as private law claims in the High Court.

Ronit Kreisberger QC, Alistair Lindsay and Ciar McAndrew acted for Sportradar

Kassie Smith QC and Thomas Sebastian acted for Football DataCo

Click here for the full judgment. You can also read here the detailed case note by Will Perry.