Bechtel Ltd v High Speed Two (HS2) Ltd ((No.2) Costs of the interested party)

Judgment of 24 March 2021; Fraser J; [2021] EWHC 640 (TCC).

The TCC yesterday handed down an important judgment on the ability of interested parties to recover their legal costs in public procurement litigation, including costs incurred to protect commercially confidential information and comply with confidentiality ring provisions.

The ruling arises out of litigation between Bechtel Ltd. and HS2 Ltd. regarding a contract for the construction of Old Oak Common Station, a “super-hub”, which will connect the HS2 line with the West Coast Main line, Heathrow Express and Crossrail. Once completed, Old Oak Common will be one of the largest and most expensive stations ever built in Europe.

Fraser J dismissed Bechtel’s claim ([2021] EWCH 458 (TCC)) and following that judgment, ‘BBVS’, the winning bidder and an interested party to the proceedings, made an application for costs: (1) incurred to comply with the confidentiality ring provisions and protect its own confidential information; and (2) arising out of the plea by Bechtel for a declaration of ineffectiveness.

BBVS was awarded the former category of costs but not the latter. In his judgment, Mr Justice Fraser set out (at paragraph 25) principles “of general application to costs applications by interested parties in procurement challenges”. It would also appear that these principles will also be relevant to public procurement claims commenced in the Administrative Court by way of judicial review.

Michael Bowsher QC and Ligia Osepciu were instructed for Bechtel.

Anneliese Blackwood and Will Perry were instructed for BBVS, the interested party. Philip Moser QC was also instructed for BBVS at an earlier stage of proceedings.

Please click here to read the case note.

The EU General Court dismissed an application brought by ViaSat Inc (“ViaSat2”) for the annulment of various decisions taken the European Commission and/or for the Commission’s failure to act regarding the pan-European authorisation of mobile satellite services on the 2GHz frequency band. Those frequencies were awarded, following a competitive tender, to a UK company, Inmarsat Ventures Ltd (“Inmarsat”), who has launched in-flight satellite broadband services to airplanes and passengers travelling across the European airspace. ViaSat, who is a direct competitor to Inmarsat, has brought litigation in a number of States, including the UK , seeking to set aside Inmarsat’s authorisations.

Viasat’s challenge alleges that Inmarsat’s European Aviation Network (EAN), which dynamically uses its satellite with ground components, is not compatible with the conditions of its spectrum licence. It sought to argue that the Commission was obliged to take steps to revoke the award of the frequencies and to intervene to restrain the national competent authorities in all EU States from granting national authorisations to operate the EAN.

The General Court dismissed all of ViaSat’s arguments. The action for failure to act under Article 265 TFEU was inadmissible since the Commission had responded explaining why it was not obliged to adopt the measures sought. The action for annulment was dismissed since the Commission lacked competence, under the EU regulatory framework established for mobile satellite services, to take the measures requested by ViaSat.

Anneli Howard QC, instructed by Jones Day, acted for Inmarsat in its intervention before the General Court in support of the European Commission.

The judgment is here.

In the first case of its kind, the Western Sahara Campaign UK (“WSCUK”) has brought a legal challenge to the domestic implementation of the UK’s new post-Brexit trade arrangements with Morocco, set out in the UK-Morocco Association Agreement.

The UK-Morocco agreement is controversial in that it purports to apply to products and resources from Western Sahara, over which Morocco claims territorial sovereignty, despite the International Court of Justice having ruled no ties of sovereignty exist.

WSCUK contends that the provisions of the agreement which purport to extend to Western Saharan resources are contrary to the principle of self-determination and treaty law prohibiting the imposition of obligations on a third party to a bilateral treaty. WSCUK contends that the provisions which purport to apply to Western Sahara must be read down or treated as of no legal effect. WSCUK’s case is that domestic implementing legislation giving effect to the UK-Morocco Association Agreement misconstrues the relevant treaty provisions and is therefore ultra vires the Taxation (Cross-border Trade) Act 2018.

This is the first occasion on which the domestic courts have been called upon to interpret one of the UK’s new post-Brexit trade agreements and rule on the legality of the domestic implementation of that agreement by reference to principles of international law.

Conor McCarthy has been instructed by Leigh Day for the Claimant in this case.

Which? today announced that it has launched opt-out collective proceedings, on behalf of millions of UK consumers, against US-based wireless telecoms company Qualcomm Incorporated. Which? is represented by an all-Monckton team of Jon Turner QC, Anneli Howard, Michael Armitage and Ciar McAndrew.

In summary, Which? alleges that Qualcomm abuses its dominant position on the relevant markets for the supply of chipsets used in smartphones and the licensing of associated standard essential patents, in order to force smartphone manufacturers across the industry to pay inflated “royalties” for Qualcomm’s technology. These royalties operate as an industry-wide tax which is passed on to final consumers.

Which? has applied to be authorised to act as the class representative on behalf of approximately 29 million UK consumers who have purchased qualifying Apple or Samsung smartphones since October 2015. The proposed class is estimated to have suffered losses totalling approximately £482.5 million.

The counsel team is instructed by Nicola Boyle, Wessen Jazrawi and Lucy Rigby of Hausfeld & Co. LLP.

The proposed collective proceedings have received extensive media coverage, including from the BBC, Sky News, City AM, the Mirror, the Daily Mail and inews.

This claim is the latest in a series of proposed collective proceedings in which Monckton members have been instructed. Monckton Chambers has unparalleled expertise and experience with collective proceedings, its members having appeared in all major class actions to date: Merricks, FX, Pride, Train Tickets, Trucks, Le Patourel and McLaren.

 

In a judgment handed down today, the CAT has dismissed Lexon’s appeal against the CMA’s Information Exchange Infringement decision with respect to Nortriptyline, a medicine used to treat depression.

The infringement was comprised of exchanges of information over a 10 month period between Lexon, which is primarily a wholesaler of pharmaceutics, and two of its competitors (King and Alissa). The CMA imposed a fine of £1.2 million on Lexon and issued proceedings in the High Court seeking a Competition Disqualification Order against Lexon’s principal director, Mr Pritish Sonpal.

Lexon argued in particular that the CMA failed to establish the existence of a “by object” restriction of competition and challenged the fine. The CAT rejected Lexon’s appeal on all grounds. The judgment provides an interesting overview of the law on “object” infringement.

Josh Holmes QC, David Bailey and James Bourke acted for the CMA. Mark Brealey QC acted for Lexon.

The judgment can be found here.

R (Good Law Project Ltd & ors) v Secretary of State for Health and Social Care

Judgment, 19th February 2021; Chamberlain J; [2021] EWHC 346 (Admin)

This is the first in a series of procurement law judicial review (JR) cases relating to Covid-19 brought by the Good Law Project (GLP) to have reached the judgment stage. The case concerned the (non)publication of contract award notices (CANs) within 30 days under regulation 50 Public Contracts Regulations 2015 (PCR) and of other contract notices and materials within 20 or 90 days under relevant transparency policies.

The judgment is noteworthy for findings on standing in procurement JRs, on the potentially binding nature of Government policy statements and on appropriate remedies. The Judge also made an important and novel ruling as to the High Court’s jurisdiction in relation to the recording and televising of video proceedings under the Coronavirus Act 2020.

The Claim

The Claimants were the GLP and a group of MPs. They complained of “a conscious decision to de-prioritise compliance with regulation 50 and with the Transparency Policy and Principles” in relation to Covid-19 related procurement of goods and services by the DHSC since March 2020 and sought declaratory and mandatory relief. The breach of reg 50 (but not of the policies) was admitted by the DHSC, citing the extraordinary circumstances of the pandemic. Any “de-prioritisation policy” was denied. The DHSC also argued that neither the GLP nor the MPs had standing.

Standing

On standing, the Court held that the GLP had standing on the facts of the case but that the four MP Claimants did not. On the GLP, the Court followed and restated the test for standing in procurement law JRs in Chandler [2009] EWCA Civ 1011 and found that an organisation such as the GLP had standing because a challenge alleging breach of the publication obligation of reg 50 and associated policies was not one that an economic operator could realistically be relied upon to bring in Part 7 proceedings under the PCR. The MPs did not have standing however, since where there is already a claimant with standing, there is no reason for standing for additional parties, applying Jones [2020] 1 WLR 519.

Substance and relief

On the substance, the Court found that there was no “de-prioritisation policy” as alleged. In addition to the admitted breach of reg 50, the Court also found a breach of the publication policy, on the basis of its precise terms, according to specific dates. Hence the DHSC had a common law duty to comply with it, absent good reason to depart from it, which departure would however have to have been done contemporaneously, not ex post facto.

On relief, the Court refused mandatory relief in circumstances where the position on publication at the date of the hearing had moved close to complete compliance. It granted declaratory relief on the breaches found.

Rebroadcasting video proceedings

In a postscript the Judge explained his refusal to give permission for a television production company to record and re-broadcast the proceedings, which the Claimants had applied for. Section 41 of the Criminal Justice Act 1925 imposes a general prohibition on photography in court which extends to video recordings: Loveridge [2001] EWCA Crim 973. No exception applies to Administrative Court proceedings and this had not been altered by ss. 85A and 85B of the Coronavirus Act 2020 on “proceedings conducted wholly as video proceedings”. There is accordingly no power to permit proceedings in the Administrative Court to be recorded for the purposes of broadcast, even when the proceedings are conducted wholly as video proceedings.

Philip Moser QC and Ewan West of Monckton Chambers acted for the Secretary of State.

The Administrative Court has handed down judgment this morning in judicial review proceedings concerning the scope of the duty on local authorities and NHS clinical commissioning groups to provide after-care services for patients who have previously been “sectioned” under the Mental Health Act 1983. Michael Armitage acted (unled) for the successful Claimant (AK), a 16-year-old child with post-traumatic stress disorder and a range of associated mental health problems who had for many months been detained for the purposes of treatment in a psychiatric hospital. The Claimant established that the relevant local authority and NHS clinical commissioning group had failed lawfully to assess and plan for AK’s needs for after-care services under section 117 of the 1983 Act following her discharge from hospital, including because of a failure to comply with the applicable Code of Practice. The case is noteworthy because there is no previous reported case on the precise nature of the assessment and planning obligations under section 117. A copy of the judgment is here.

The Claimant was represented throughout the proceedings by Michael Armitage, instructed by Rebekah Carrier of Hopkin Murray Beskine. Michael has developed a specialism in judicial review claims concerning NHS clinical commissioning groups, having also recently acted for the successful Claimant in judicial review proceedings concerning the provision of NHS continuing healthcare (here).

The CMA has withdrawn a record penalty, imposed on JD Sports and its parent Pentland Group, following the lodging of an appeal.

The £300,000 penalty related to an alleged breach of an Initial Enforcement Order addressed to JD Sports and Pentland. Among other things, the CMA found that they had failed to issue adequate guidelines to ensure compliance.

The parties lodged a joint appeal, arguing that there was no breach, and that the CMA had based its decision on fundamental factual errors. In light of the issues raised on the appeal, the CMA withdrew its decision.

No further action by the CMA is now expected.

The CMA’s investigation concerned the market for the provision of platform solutions to investment platforms. Investment platforms enable investors and their advisers to invest in a range of assets, including funds, shares, bonds and other securities. The CMA had found that the merger raised substantial competition concerns in the supply of retail platform solutions to investment platforms in the UK. It ordered FNZ to divest itself of the entire of GBST.

FNZ had challenged the decision before the Competition Appeal Tribunal alleging that there were flaws in the CMA’s counterfactual analysis, market definition, competition analysis and that the remedy was disproportionate.

In response to the Notice of Application, the CMA did not defend its decision before the CAT, but instead asked that it be remitted for reconsideration. The CMA has now published its intended process for the conduct of the remittal, provisionally set to complete by mid-May 2021.

The inquiry page can be found here.

It is believed that this is only the second time that the CAT has quashed a merger decision without a hearing on the basis of the CMA accepting flaws in its decision.

FNZ was represented by Daniel Beard QC and David Gregory.