In a detailed judgment in R (Ventcroft) v British Standards Institution [2020] EWHC 68 (Admin), the High Court has refused permission in an application for judicial review seeking to challenge a decision by the British Standards Institution (“BSI”) to approve a revised standard for fire-retardant cables. In his decision, Julian Knowles J noted that BSI was “a specialist body with a high degree of technical expertise”. He held that it was not arguable that BSI had acted unreasonably or that its decision was otherwise unlawful in a public law sense and gave permission for the judgment to be cited.

Gerry Facenna QC and Nikolaus Grubeck acted for BSI

Michael v Governor of HMP Whitemoor & Anor

The Appellant, a Category A prisoner who is serving a life sentence for murder, brought a data protection claim against his former solicitors in the Oxford County Court. He asked the Governor of his prison, HMP Whitemoor, to allow him to attend the hearing of his claim in person. Among other things, he claimed that he suffered from various mental health difficulties that would prevent him from participating effectively in the hearing via video link.

The prison authorities refused his request, noting his security risk and the lack of the secure dock, and that he had used the video-link to participate in hearings on a number of previous occasions without apparent difficulty. The Appellant applied to judicially review the refusal, arguing that it violated his right to a fair trial under article 6 ECHR , that Prison Service Order 4625 unlawfully fettered the prison’s discretion by adopting a blanket ban against the production of Category A prisoners in court and, as a late amendment, that the refusal also involved an unlawful delegation of the Secretary of State’s power under Schedule 1 of the Crime (Sentences) Act 1997 (as held by the Supreme Court in R (Bourgass) v Secretary of State for Justice [2015] UKSC 54).

In June 2018, William Davis J refused the Appellant permission to rely on the Bourgass ground and dismissed his substantive application for judicial review. The Appellant appealed this decision. In its judgment this week, the Court of Appeal (the Lord Chief Justice, Holroyde LJ and Davies J) unanimously dismissed the Appellant’s article 6 challenge, his challenge to PSO 4625 and the Bourgass ground but allowed the appeal on the “limited basis” that the prison authorities had misdirected themselves as to the existence of a secure dock at Oxford County Court. Given the passage of time, the Court concluded that it was appropriate to quash the decision so that it could be taken in light of up-to-date circumstances.

Eric Metcalfe acted for the Respondents, the Governor of HMP Whitemoor and the Director of High Security Prisons.

Hong Kong’s Competition Commission (HKCC) has recently initiated proceedings against an IT company, Quantr, in the Hong Kong courts after Quantr rejected the lesser penalty of agreeing to an infringement notice. HKCC’s case is that Quantr and its director, Cheung Man Kit, engaged in cartel conduct in relation to a bidding exercise organized by Hong Kong theme park Ocean Park in 2017 for the procurement of IT services based on Nintex technology. HKCC found that Nintex also participated in the cartel conduct, but the company accepted an infringement notice and a revised competition compliance program. The case was brought to HKCC’s attention by Quantr’s co-bidder who filed a leniency application, which the commission accepted. This is the first case in Hong Kong that has resulted from a successful leniency application, and it is also the first time the commission has made use of its power to issue an infringement notice.

Kassie Smith QC is advising the Hong Kong Competition Commission.

The HKCC press release about the case.

In a judgment handed down this morning, Nugee J has decided to refer to the CJEU a case concerning the treatment of assets held in a foreign pension scheme by a person who is declared bankrupt in England and Wales. Under English insolvency law, assets held by a bankrupt in a scheme registered in the UK and subject to UK regulation are not counted as part of the bankrupt’s estate and are not available for distribution to creditors. But similar protection does not extend to a bankrupt’s assets held in a personal pension scheme registered in and regulated by an EU Member State and not registered in the UK.

The present case concerned an Irish national who built up assets in an Irish personal pension scheme before moving to England to run a consultancy business. He was then declared bankrupt. The trustees in bankruptcy claimed that his assets in the Irish scheme formed part of the bankrupt estate. The Court noted that although the Irish scheme could in theory have registered in the UK, that was not a decision for an individual beneficiary and would have imposed potentially onerous obligations on the Irish scheme in return for no clear benefit to the scheme. The Court accepted that it was likely that Article 49 of the Treaty on the Functioning of the EU (freedom of establishment) and Article 24(1) of the Citizens’ Rights Directive (equal treatment) required the UK to extend to his assets in the Irish scheme the same provisions excluding those assets from his estate that would have applied were his assets in an equivalent UK scheme. However, the Court had sufficient doubts about the application of Article 49 and the Directive for it to be appropriate to refer the question of whether they applied to the CJEU. The Court also held that if the CJEU agrees that EU law does require the extension of protection to the Irish scheme, UK legislation can be read, using the principle of conforming interpretation, so as to comply with what EU law requires.

It should be noted that although the reference is likely to be made after the UK leaves the EU on 31 January, and to be decided after the likely end of the transition period on 31 December 2020, the Withdrawal Agreement provides that references to the CJEU may continue to be made during the transitional period, that the CJEU will decide such references even after transition, and that the outcome will bind the UK courts. Those provisions will all be implemented into UK law by the Withdrawal Agreement Bill currently awaiting Royal Assent.

George Peretz QC represented the Irish national in the case.

The Court of Appeal has upheld the CMA’s decision that a ban on selling golf clubs online is a serious breach of competition law.

In a judgment handed down on 21 January the Court dismissed an appeal by the golf club manufacturer Ping concerning its longstanding policy banning its authorised retailers from selling its golf clubs over the internet. In a 2017 decision the CMA found that the ban was a restriction of competition by ‘object’ – i.e. a measure that was so inherently likely to harm competition that it was unnecessary to prove any actual effects – and therefore an infringement of both EU and domestic competition law. That decision was upheld by the Competition Appeal Tribunal in 2018 and the Tribunal’s judgment has now been upheld by the Court of Appeal.

The Court’s judgment provides important guidance on the meaning of ‘object’ infringements and suggests that when applying competition law the domestic courts will not look kindly on attempts to restrict the ability of retailers to sell over the internet. Such an approach is consistent with the approach taken so far by the European Commission and the EU Court of Justice.

Ben Lask acted for the CMA in both the Tribunal and the Court of Appeal. A copy of the judgment can be read here.

In a rare reference to the EFTA Court from the Norwegian courts regarding the sale of tickets for the Olympics 2012 Games, the EFTA Court handed down judgment on 18 December 2019 accepting the UK’s arguments that Mr Gyrre’s sale of the tickets was unlawful under EU consumer protection law since he omitted material information about restrictions on the use of the tickets which were void when sold by unauthorised resellers. The EFTA Court ruled that his commercial practices in selling the tickets online were automatically unfair under Annex I of the UCPD – although the consumer obtained their ticket, it was useless and could not be used to gain access to the venue – indeed, consumers could be prosecuted for trespass.

The case also raised wider issues about the compatibility of the UK’s ban on unauthorised resellers with EU/EEA law. Mr Gyrre, a Norwegian, was prosecuted for selling tickets online all over Europe in breach of the Act and claimed the breach was contrary to the freedom of services under the EEA (equivalent to Article 56 TFEU). The UK argued that the UK’s LOCOG Act, which prohibits the resale of tickets by unauthorised sellers, was a non-discriminatory Keck selling rule or was objectively justified to protect consumers and ensure health and safety and national security at stadia. This has ongoing relevance for similar requirements for tickets sales at concerts and large international sporting events.

Mr Gyrre also claimed that his right to challenge the compatibility of the ban took precedence over consumers’ rights and meant that they had suffered no prejudice. The EFTA court held that, although Mr Gyrre might claim the prohibition was in breach of EU/EEA law, that did not affect the position of consumers. The key material time for determining unfairness of the practice and its impact on the consumer’s economic behaviour was the time of the relevant transaction. The EFTA Court upheld the UK’s argument that a subsequent determination could not affect the knowledge of the average consumer at the time of the transaction or alter their position after the event. A consumer could not be expected to know the intricacies of EU law to challenge the invalidity of his/her ticket if/when they were refused entry to the Games.

Anneli Howard represented the UK Government in its written submissions and at the oral hearing in February 2019 – with Zoe Lavery, member of the Government Legal Department, acting as Agent.

Read full judgment here.

In Tomanovic & Ors v Foreign and Commonwealth Office [2019] EWHC 3350 (QB), Brendan McGurk successfully defended the Foreign and Commonwealth Office from claims brought by family members of Serbians killed or disappeared following NATO’s airstrikes in June 1999 and the consequent withdrawal of Slobodan Milosovic’s forces from Kosovo. It was common ground that the deaths and disappearances were orchestrated by the Kosovo Liberation Army. A previous claim brought against the Ministry of Defence for the UK’s failure to carry out investigations compliantly with Articles 2 and 3 ECHR was rejected by Irwin J (as he then was) in Kontic & Ors v Ministry of Defence [2016] EWHC 2034 (QB). The claim against the FCO was based on the novel proposition that because the FCO had seconded an employee to the EU’s Rule of Law Mission to Kosovo – a body set up to investigate and prosecute crimes in the aftermath of Milosovic’s withdrawal – his alleged failure to investigate the deaths and disappearances could be attributed to the UK Government. That proposition was rejected in the judgment of Johnson J who further concluded that the Claimants were outside the jurisdiction of the UK for the purposes of Article 1 ECHR and that the claim was an abuse of process in circumstances where these claims could have been pursued as part of the Kontic litigation. Brendan McGurk was led in both Kontic and Tomanovic by Sir James Eadie QC.

The decision of Johnson J is here.

Member States are required to carry out Official Controls at, inter alia, slaughterhouses to prevent animal disease from entering the human food chain. National Competent authorities (in the UK, the Food Standards Agency) are permitted and in some cases required to charge for the provision of Official Controls. By regulation 4 of the Meat (Official Controls Charges) (England) Regulations 2009, the FSA has the power to withdraw controls from premises in relation to which previous debts for the provision of Official Controls have been accrued by previous operators. The provision is designed to avoid phoenix companies from continuing to receive Official Controls when a related business has failed to pay for the same. In R (OaO Agro Foods (Ashford) Limited) v Food Standards Agency [2019] EWHC 2718 (Admin) Mr Michael Fordham QC (sitting as a Deputy High Court Judge) rejected a challenge to the effect that regulation 4 violated EU charging provisions and/or could not be interpreted as the FSA had sought to do so. The judgment is here.

Relatedly, on 19 December 2019, the CJEU handed down its decision in case C-477/18 Exportslachterij J. Gosschalk and Others v Netherlands, in which the Court confirmed that National Competent authorities were permitted by EU to recover indirect as well as the direct costs of providing Official Controls to Food Business Operators. The ruling precludes domestic restitutionary claims to the effect that the FSA has recovered excessive costs in charging for the provision of Official Controls. The judgment is not yet available in English (the French version is here) but accedes to submissions made on behalf of the UK Government who intervened in support of the Dutch Government.

Brendan McGurk successfully acted for both the FSA in the Agro Judicial Review and the UK Government in the Exportslachterij J. Gosschalk reference.

Judgment was handed down this week by the Court of Appeal in the latest turn of the 2019 Rail Franchising litigation. The Secretary of State appealed against the trial judge’s refusal to strike out elements of the Part 7 claims brought by four disqualified bidders in the recent franchise competitions.

The central issue was whether aspects of the claims were now time-barred, having been brought more than three months after the relevant bidding documentation had been issued. At first instance, Stuart-Smith J had held that the claimants’ Francovich damages claims were breaches of statutory duty to which a six-year limitation period applied; moreover, even if the three-month time limit did apply, he would need to hear all the evidence at trial in order to determine the point from which time had run; and finally that it was not necessarily an abuse of process to claim ‘cross-over’ relief in the form of a declaration or injunction in a Part 7 claim that engaged both public and private law rights.

On appeal, the Secretary of State argued that the underlying claim was a public law challenge and consequently a breach of the principle of procedural exclusivity.

Giving the leading judgment, Coulson LJ rejected the Secretary of State’s argument that a damages claim arising out of a public body’s decision should automatically be subject to a three-month time limit, and did not accept that the Part 7 claims were ‘public law challenges’. A claim for damages was not attempting to reverse or alter the public body’s decision, but only to receive compensation for a wrong suffered. As such, there was no condition precedent that a claimant should have brought judicial review proceedings first. Procedural exclusivity did not apply in a private law case when an individual sought to establish private law rights which could not be determined without an examination of the validity of a public law decision. Therefore, where claims for damages were inextricably mixed with public law issues, the judicial review limitation period would not apply. However, it might still be an abuse to seek an injunction aimed at reversing a public law decision where the claim was brought outside the three-month time limit. As to the point from which time ran in the present case for the purpose of the judicial review time limit, while it was possible for a cause of action to arise on the issue of tender documents, if the process was more fluid the claim might only crystallise at a later point, when the tender was rejected. As such, the judge had been correct not to strike out the claims on an interlocutory application. The appeal was accordingly dismissed.

Anneli Howard, Fiona Banks and Alfred Artley appeared for the Secretary of State (led by Rhodri Thompson QC and Fionnuala McCredie QC).

Philip Moser QC and Jack Williams appeared for Arriva (the first respondent).

Tim Ward QC and Daisy Mackersie appeared for the Stagecoach bidders (the second and fourth respondents).