R (Black) v Secretary of State for Justice

The Administrative Court has refused permission to apply for judicial review to a prisoner seeking to challenge restrictions on child communication placed upon him by his prison.

The Claimant has been identified as a ‘person posing a risk to children’ (‘PPRC’) and is subject to a Sexual Offences Prevention Order (‘SOPO’). The relief he sought was to be permitted to receive photographs showing children and to be able to send greetings cards to child family members.

The Claimant sought to challenge the restrictions on communications with children imposed upon him in application of the Public Protection Manual 2016 (PSI 18/2016) on the basis that they were contrary to s106(3) of the Sexual Offences Act 2003 and that they were contrary to the SOPO.

The Administrative Court has refused permission and accepted the Secretary of State’s submission that the claim ought to be certified as totally without merit. The Court ruled that as the prisoner identified as having PPRC status had not first applied to the prison for child contact in respect of a specified child, a judicial review of the restrictions upon that prisoner was premature.

Imogen Proud acted for the Secretary of State for Justice.

The First Tier Tribunal has ruled that the ICO’s guidance, permitting public bodies to cite the two national security exemptions “in the alternative”, is incorrect as a matter of law. The Tribunal considered that the requirement to “specify” the exemption relied on meant that the public body could not cite an alternative exemption for purely tactical reasons, knowing that it did not apply, in order to mask the actual reasons for its decision.

Alison Berridge appeared for one of the three appellants.

The decision is available here.

Ronit Kreisberger QC, Alison Berridge and Jack Williams have been instructed by the proposed class representative, Justin Le Patourel, in opt-out collective proceedings against BT for alleged excessive pricing in abuse of its dominance position in standalone landline telephone services. The proposed class representative proposes to represent over 2 million consumers and has an estimated value of up to £600m.

The opt-out collective procedure in the Competition Appeals Tribunal has recently been given a significant boost from applicants’ perspectives by the success of Mr Merricks in the Supreme Court, represented by Paul Harris QC.

The counsel team are instructed on behalf of the proposed class representative by Mischon de Reya’s Rob Murray and Natasha Pearman.

Ronit Kreisberger QC is also acting for Mitsubishi Bank of Tokyo in Mr Phillip Evans v Barclays Bank and Othrs and Michael O’Higgins v Barclays Bank and Othrs. Jack Williams was counsel for the (successful) respondent in the first opt-out collective proceedings in the CAT, Dorothy Gibson v Pride Mobility Products Ltd [2017] CAT 9. Monckton Chambers has unparalleled expertise and experience with collective proceedings, having had members appear all actions brought to date, including Merricks, FX, Pride, Train Tickets and Trucks.

Related coverage about the collective proceedings can be found at: The Times, BBC, Mail Online, The Express, The Sun, CityAM, Bloomberg, Legal Week, Metro, Daily Mirror.

In a test case for the education sector, Melanie Hall QC and Elizabeth Kelsey have secured a significant win against HMRC on
the notoriously difficult question of when VAT is payable on Government funding.

Click here for the decision of the Upper Tribunal chaired by Whipple J and here for a case note written by Jack Williams of Monckton Chambers.

Melanie Hall QC and Elizabeth Kelsey represented The Colchester Institute.

Peter Mantle represented HMRC.

Josh Holmes Q.C. and Jack Williams have been instructed by Symphony Environmental Technologies PLC and Symphony Environmental Ltd (the Applicants) in relation a damages action under Article 340 TFEU against the EU Institutions, to be heard before the EU General Court in Luxembourg.

The Applicants allege that the EU institutions are non-contractually liable under Article 340(2) TFEU and Article 41(3) of the Charter of Fundamental Rights in respect of the adoption of Article 5 and Recital 15 (insofar as they apply to oxo-biodegradable plastic) of Directive (EU) 2019/904 of the European Parliament and of the Council of 5 June 2019 on the reduction of the impact of certain plastic products on the environment (OJ L 155, 12.6.2019, p. 1–19) (“the Directive”).

Article 5 of the Directive directs that Member States “shall prohibit the placing on the market of the single-use plastic products listed in Part B of the Annex and of products made from oxo-degradable plastic”.

The Applicants argue that insofar as the restriction imposed by Article 5 of the Directive encompasses, by means of the definition of “oxo-degradable plastic” in Article 3(1) and (3), a total prohibition of the placing of oxo-biodegradable plastics on the market (“the Article 5 Prohibition”), it is unlawful. This is on the basis that the adoption of the Article 5 Prohibition is vitiated by procedural errors, breaches the principle of proportionality, is based on manifest errors of assessment, fails to take into account relevant considerations, is discriminatory and breaches the Applicants’ fundamental rights. Accordingly, they seek damages.

Josh and Jack are representing the Applicants in accordance with their continued rights of privilege and audience before the EU Courts under the arrangements in the Withdrawal Agreement for cases started before the end of the transition period. Both also retain rights of privilege to advise confidentially on any new matters of EU law and represent clients before the EU Courts on account of their being called to the Irish Bar (in addition to the Bar of England and Wales).

Fenix International Ltd v RCC [2020] UKFTT 499 (TC) (First-tier Tribunal, Tax Chamber, 15 December 2020)

Fenix International Ltd is the operator of the well-known Only Fans website/online social media platform, which allows “Creators” to post content for “Fans” in return for payment. Fenix’s case is that it acts as agent in respect of transactions between Creators and Fans. Fenix charges Creators a 20% commission on all sums paid by Fans and accounted for VAT in respect of that intermediary service for the accounting periods at issue. Thus, if a Fan pays 100 and Fenix charges the Creator commission of 20, Fenix accounted for VAT on the 20, rather than the 100.

HMRC have assessed Fenix for VAT on the basis that Article 9a of Council Implementing Regulation (EU) No. 282/2011, which was directly applicable in the UK prior to IP Completion Day (23:00 GMT on 31 December 2020) and which remains applicable in the UK, deems Fenix to be liable for VAT on 100. Fenix has appealed against those assessments to the First-tier Tribunal (Tax Chamber) (“FTT”), arguing that the deeming provisions go beyond the power to “implement” the Principal VAT Directive, in this case Article 28 PVD, conferred on the Council by Article 397 PVD. Prior to IP Completion Day, any challenge to the validity of an EU Regulation could only be entertained by the CJEU; and challenge before a national court had to be referred for a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union (“TFEU”).

On 15 December 2020, the FTT referred a question to the CJEU concerning the validity of Article 9a under Article 267 TFEU. On 22 December 2020, the FTT’s order for reference was registered at the CJEU Registry (as Case C-695/20). On IP Completion Day, the ability of UK courts and tribunals to make Article 267 references (relevantly) ended. The combined effect of the Withdrawal Agreement (Articles 86 and 89) and section 7A of the European Union (Withdrawal) Act 2018 is that the CJEU has jurisdiction to entertain the FTT’s reference and that the FTT and UK will be bound by the CJEU’s answer.

Valentina Sloane QC, leading Max Schofield of 3PB, acted for Fenix.

Andrew Macnab acted for HMRC.

Read the FTT’s decision to refer here.

Just Digital Marketplace Ltd [2021] EWHC 15 (QB), 8 January 2021, Master McCloud

The High Court (Master McCloud), in a Part 8 claim brought by one of the leading players in High Court enforcement, has held and declared that an enforcement agent may enter into a controlled goods agreement (“CGA”) within the meaning of para 13 of Schedule 12 to the Tribunals, Courts and Enforcement Act 200 with a judgment debtor whether or not the enforcement agent has physically entered the premises on which the goods are located. Accordingly, an enforcement agent and judgment debtor can enter into a valid CGA via a video call made over Zoom or other video platform (a “non-entry CGA”).

Master McCloud further held, however, that many of the provisions of Schedule 12 concerning subsequent enforcement of a CGA (involving entry or re-entry on the premises) did not apply to a non-entry CGA; and that it would be a matter for the Government and the legislature to consider the implications of the judgment and whether, and if so what, rules and procedures were required for entry into and enforcement of non-entry CGAs..

Andrew Macnab, instructed by the Government Legal Department, represented the Ministry of Justice, the third interested party.

Read the full decision here.

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.