Kassie Smith QC wins judicial review of BVI telecoms regulator’s decision on margin squeeze for Cable & Wireless

The High Court of the British Virgin Islands (“BVI”) has just handed down judgment in a claim brought by Cable & Wireless (BVI) Ltd (“LIME BVI”) for judicial review of the decision of the BVI Telecommunications Regulatory Commission (“TRC”) finding that LIME BVI had engaged in an anti-competitive margin squeeze in breach of the requirements of the BVI Telecommunications Act 2006. The TRC had received a complaint from CCT, a competitor of LIME BVI, to the effect that LIME BVI (by certain “All Talk Calling Plans”) was charging average retail prices to its mobile customers for calls to LIME affiliates in other Caribbean jurisdictions which were below the wholesale charges available to CCT from those LIME mobile network operators. The TRC investigated the complaint and issued a decision on 1 June 2012 to the effect that LIME BVI had engaged in an anti-competitive margin squeeze during the period January 2009 to August 2010 which, had it continued, would likely have had anti-competitive effects contrary to the public interest and would have been detrimental to consumers in the BVI in the long term. The TRC ordered LIME BVI not to engage in such conduct and fined it USD$493,665.

The Court held that the TRC’s decision was ultra vires the 2006 Act and that it should be set aside. The Court held that the relevant section of the Act under which the TRC proceeded against LIME BVI applied only to present and future conduct, and not to past conduct. The Court agreed with the submission of LIME BVI that the TRC’s decision could only have been limited to offending conduct which ceased before the decision was issued. It agreed with LIME BVI’s argument that “the tenor of the Act lends itself to ex ante regulation of operators” only. The Court therefore found that the TRC had acted ultra vires the Act and that this warranted the decision being set aside. The Court also agreed with LIME BVI’s argument that the TRC acted ultra vires the 2006 Act by applying it to LIME affiliates outside the jurisdiction of BVI law (i.e. those LIME affiliates responsible for the setting of prices in the wholesale or upstream markets). However, the court held that this illegality alone would not have been sufficient to set aside the TRC’s decision.

Kassie Smith QC acted for LIME BVI in the proceedings before the High Court of the BVI.

To read the judgment, please click here.

 

Kassie Smith QC and Brendan McGurk success in private healthcare appeal

The Court of Appeal handed down judgment today in the appeal brought by the Federation of Independent Practitioners (“FIPO”) from the Competition Appeal Tribunal’s (“CAT”) judgment of 29 April 2015.  FIPO had challenged the CMA’s finding that buyer power on the part of private medical insurers (“PMIs”) did not lead to an adverse effect on competition (“AEC”) in the market for private healthcare.   The CAT dismissed that appeal by a majority judgment (Sales LJ and Clare Potter) with Dermott Glynn, an economist member of the CAT, dissenting.

FIPO sought to appeal the CAT’s judgment on a number of grounds including that the CAT had reached irrational conclusions on issues such as fee capping, top-up fees and consumer choice.  FIPO also argued that the majority had wrongly rejected Mr Glynn’s dissenting judgment and/or failed to give adequate reasons for disagreeing with the dissenting judgment.  The CAT had given FIPO permission to appeal.

The Court of Appeal dismissed FIPO’s appeal on all grounds.  The Lord Chancellor gave the judgment of the Court.  He carefully considered the CMA’s reasoning in its Decision and determined that “the CMA’s overall conclusion, at which it was entitled to arrive, was that, despite its potential to do so, the buyer power of PMIs, and in particular Bupa and AXA PPP, had not in fact prevented, restricted or distorted competition or reduced consumer choice”.  He held that the CAT had properly considered FIPO’s criticisms of the CMA’s conclusions on appeal but that they were entitled, and indeed right, to reject them.  He also held that there was no obligation on the majority of the CAT to explain why they disagreed with Mr Glynn: “for the purposes of this appeal, it is sufficient to determine whether or not the challenges to the decision of the majority in the CAT are justified”.

Kassie Smith QC and Brendan McGurk acted for the CMA.

To read the full judgment, please click here.

Council’s funding cut to short breaks for disabled children held unlawful

The High Court has held today (22 July 2016) that the decision by West Berkshire Council to reduce funding to voluntary sector providers of short breaks to disabled children was unlawful. Steve Broach acted for the Claimants, instructed by Irwin Mitchell LLP.

The claim arose out of a decision, as part of the council’s budget setting for 2016/17, to reduce the funding given to voluntary sector organisations to provide support to families with disabled children by 52%. The Judge (Mrs Justice Elizabeth Laing DBE) held that this decision was flawed because Members were misdirected as to the requirements of the public sector equality duty and because Members failed to consider the other relevant legislation, including sufficiency duties relating to short breaks.

After permission to apply for judicial review was granted, the council took a second decision to ‘reaffirm’ the previous decision. The Judge held that this decision was ‘materially affected by apparent predetermination’ and so could not cure the flaws in the first decision.

The Judge rejected the council’s argument that relief should be refused because the Local Government Finance Act would require the full budget calculation to be quashed if relief were granted. The judgment also contains important guidance on the new requirement for permission and relief to be refused if the outcome would not have been substantially different if the conduct complained of had not occurred.

The judgment is here.

Brendan McGurk successfully defends first penalty appeal on behalf of Claims Management Regulator

The Claims Management Regulator regulates companies providing claims management services. Such companies (who seek clients who might wish to bring personal injury claims or claims for financial mis-selling) are subject to conditions of authorisation on the same model as entities conducting regulated activity must be authorised under FSMA 2000. The CMR has been granted a new penalty jurisdiction permitting it to impose penalties on Claims Management Companies for breach of their conditions of authorisation. The jurisdiction was conferred under section 139 of the Financial Services (Banking Reform) Act 2013 which amends the Schedule to the Compensation Act 2006.

In the first reported decision on the new penalty jurisdiction, Brendan McGurk successfully defended an appeal by Complete Claims Solutions Limited.

The judgment is here.

Supreme Court rules Legal Aid residence test unlawful

R (Public Law Project) v Lord Chancellor [2016] UKSC 39

This week the Supreme Court handed down judgment in R (Public Law Project) v Lord Chancellor, in which it unanimously concluded that the proposed restriction of legal aid on grounds of residence under the draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2014 was ultra vires the Henry VIII clause in the enabling Legal Aid, Sentencing and Punishment of Offenders Act 2012. The judgment follows the Supreme Court’s decision on 18 April 2016 to cut short oral argument on the basis that it had already concluded that the appeal should be allowed.

Eric Metcalfe acted for the Office of the Children’s Commissioner for England, which was granted leave to intervene in the Supreme Court by way of written submissions.

Stephen Cragg QC is a trustee of PLP who brought the case.

A copy of the Supreme Court’s judgment is available here.

Commission accepts commitments regarding container freight announcements – Woodpulp revisited?

The Commission has issued an Article 9 commitment decision, terminating its Article 101 TFEU investigation into suspected price signalling by container liner shipping companies. The Commission opened antitrust proceedings in November 2013, claiming that the carriers’ practice of publishing their future freight increases (“GRIs”) on their websites and in the press increased transparency in the market and reduced uncertainty about the carriers’ pricing behaviour. Its case was that the announcement of non-binding percentage increases, several weeks in advance, enabled carriers to align their prices and coordinate their behaviour. That case marked a significant departure from the Woodpulp  case law, which requires evidence of collusion rather than unilateral publication of pricing intentions alone.

The carriers have been negotiating commitments since 2015 which were market tested in February 2016. Fourteen carriers have agreed to stop publishing GRIs and to ensure that any future price announcements contain a time-limited binding offer that sets out details of the maximum total price and its sub-components. The carriers are free to accept lower rates within the customary booking period for consignments or to negotiate different rates as part of long-term or bilateral agreements.

A copy of the Commission’s press release is here.

Anneli Howard acted for China Shipping Container Lines during the investigation and negotiation of commitments. In the end, following their restructuring, the Commission decided to close proceedings against China Shipping and its agencies without it having to issue commitments.

Paul Harris QC instructed on Quinn Emanuel £19bn class action against MasterCard

MasterCard is facing a multi-billion pound damages claim, that could reach £19 billion, for imposing illegal card charges that were ultimately borne by UK consumers. The claim, the biggest in UK legal history, will be one of the first to be filed under the Consumer Rights Act 2015, which allows a collective damages claim to be brought on behalf of a class of people who have suffered loss.

This ‘follow-on’ claim comes after a long-running legal battle with the European Commission that ended in 2014 and which found MasterCard to have infringed EU law by imposing charges (known as ‘interchange’ fees) on the use of its debit and credit cards.

Quinn Emanuel is leading the claim and the class representative is former Chief Financial Services ombudsman Walter Merricks. Quinn Emanuel partners Boris Bronfentrinker and Kate Vernon have instructed Monckton Chambers’ Paul Harris QC to lead the Counsel team.

High Court grants Campaign Against Arms Trade permission to judicially review licensing of arms exports to Saudi Arabia

Conor McCarthy and David Gregory of Monckton Chambers, led by Martin Chamberlain QC and instructed by Leigh Day, are acting on behalf of the Campaign Against Arms Trade (CAAT) in its challenge to the decision by the Secretary of State for Business, Innovation and Skills to continue to grant licences for the export of military equipment to Saudi Arabia. On the 30th June, the High Court gave CAAT permission to judicially review the government in respect of this decision taken by the Secretary of State.  CAAT claims that over 6000 people have been killed in the ongoing bombardment of Yemen and that the export of arms continues despite serious allegations and compelling evidence that there is a clear risk Saudi forces might use the equipment to violate international humanitarian law (IHL).

Numerous sources, including the UN Security Council-appointed Panel of Experts on Yemen and the UN Secretary General, have made findings that Saudi Arabia has perpetrated violations of international humanitarian law in Yemen.

In its challenge, the Claimant relies, inter alia, on the Consolidated EU and National Arms Export Licensing Criteria which prohibits the export of arms or military equipment where there exists a “clear risk” that the arms or military equipment “might” be used in violation of IHL. The Secretary of State does not expressly reject the findings of the UN Panel of Experts or others but asserts that he has access to secret information which enables him to conclude that there is no “clear risk” that Saudi Arabia might use the weapons in violations of IHL in the Yemen conflict.  This information has not been disclosed by the Sec of State who indicates that he may apply for public interest immunity or for a Closed Material Procedure under the Justice and Security Act 2013.

The case has been listed for a three day hearing, before a full Divisional Court, by February 2017.

 

Michael Bowsher QC acts for FP McCann in High Court ruling that £100 million Northern Irish construction contract was awarded in breach of public procurement regulations.

High Court judge, Mr Justice Colton, has ruled that the Department for Regional Development in Northern Ireland breached public contract regulations in rejecting the tender submitted in 2009 as part of a joint venture between FP McCann Limited and Balfour Beatty (“BBMC”).  Recent government information shows that the cost of the project has now reached up to £135 million.  This consortium’s tender was part of a public procurement process run by DRD’s Road Service to appoint contractors to design and build the A8 dual carriageway between Belfast and Larne. The contract was to the most economically advantageous tender. The joint venture did not secure the contract because it was asserted by the Department the bid that been submitted  was an abnormally low tender and that this carried a risk that BBMC and Roads Service would be unable to agree a target price after the contract had been entered into, and that as result the project would stall. Lagan Ferrovial Costan Consortium was appointed as contractor and they have been carrying out works on the A8 over recent years.

Michael Bowsher QC, acting for the construction company FP McCann Limited, claimed that BBMC had been unlawfully denied the work and should be entitled to damages.

The judge found that there were significant flaws in the process of assessing the plaintiff’s tender.  The judge ruled that “there has been a clear breach of duty by the defendant in respect of its consideration of the BBMC bid and specifically a breach of Regulation 30 (of the Public Contracts Regulations 2006).”  The judge adjourned the case for further submissions to assess the scale of the compensation with words: “The defendant’s breach of duty should be marked by a meaningful award to reflect the loss of opportunity to the plaintiff to be awarded a significant and potentially lucrative contract.”

See Court’s summary of judgment.

Michael Armitage appears for successful Claimant in landmark High Court case on unlawful detention of children

In a landmark judgment handed down today, the High Court has ruled that it is unlawful for the Secretary of State for the Home Department (“SSHD“) to detain children under her immigration powers for any longer than 24 hours, irrespective of whether the relevant immigration official has reasonable grounds for suspecting the prospective detainee to be an adult: R (AA) v SSHD [2016] EWHC 1453 (Admin). The judgment is significant in that it is the first judicial consideration of the 2014 amendments to the Immigration Act 1971, which (as this case confirms) dramatically alter the previous state of the law on the lawfulness of child immigration detention.

The case was brought on behalf of a Sudanese asylum seeker, AA, who was detained by the SSHD for 13 days under her general powers of detention in paragraph 16 of Schedule 2 to the 1971 Act. The detention was said to be justified in accordance with Chapter 55 of the Enforcement Instructions and Guidance, the well-known Home Office policy which permits the detention of individuals claiming to be children but whose physical appearance / demeanour “very strongly suggests that they are significantly over 18 years of age and no other credible evidence exists to the contrary“. While AA was in detention, a local authority that had conducted a Merton “age assessment” concluded that AA was a child, and AA was eventually released on the basis of that assessment, there no longer being any basis under the SSHD’s policy for maintaining the detention.

AA contended in the proceedings that he had been unlawfully detained, notwithstanding that his detention had been in accordance with the terms of the SSHD’s policy. Notably, the Supreme Court held in 2013 (in R (AA (Afghanistan)) v SSHD [2013] UKSC 49) that the detention of a child in the mistaken but reasonable belief that he was an adult was not contrary to that policy, or to the general duty to safeguard and promote the welfare of children in section 55 of the Borders, Citizenship and Immigration Act 2009. However, after judgment in that case had been handed down, Schedule 2 to the 1971 Act was amended so as to subject the SSHD’s general powers of immigration detention to express statutory restrictions in the case of unaccompanied children: see paragraph 18B of Schedule 2 to the 1971 Act, which provides that unaccompanied children may only be detained in short-term holding facilities, and even then only for a maximum period of 24 hours. The word “child” is defined in paragraph 18B(7)in entirely objective terms as “a person under the age of 18“.

In a careful and detailed judgment, Sir Stephen Silber rejected the SSHD’s submission that the word “child” in paragraph 18B of Schedule 2 to the 1971 Act should be read so as to incorporate reference to the reasonable beliefs of the immigration official. “Child” had to be interpreted objectively, as a matter of “precedent fact” just as it had been in the seminal Supreme Court case of R (A) v Croydon [2009] 1 WLR 2557 in the context of local authorities’ duties to “children in need” under the Children Act 1989. It followed that the Claimant’s detention was unlawful, it being accepted that he was unaccompanied, and under 18 years old, at the time of his detention. It followed that AA’s detention was unlawful from the outset (with damages to be assessed in due course). In addition, the Judge held that even if (contrary to his findings on the main ground of judicial review) the SSHD could lawfully detain AA on the basis of a reasonable belief that he was an adult, AA’s detention was in any event unlawful from the date on which the SSHD received the local authority’s age assessment confirming the Claimant to be a child.

The judgment constitutes an extremely important development with the potential to have far-reaching implications for the detention of asylum-seeking young people. Permission to appeal to the Court of Appeal has already been granted by Sir Stephen Silber and judicial review practitioners will await the outcome of the appeal with interest. For now, however, the law is straightforward: individuals under 18 cannot lawfully be detained under immigration powers (i) for any longer than 24 hours or (ii) in adult immigration removal centres for any length of time. The SSHD’s beliefs about individual’s age are irrelevant.

Michael Armitage, instructed by Stuart Luke of Bhatia Best, appeared as sole counsel for the successful Claimant.