On 25 February 2020, Mr Justice Foxton handed down his judgment following the trial of a preliminary issue concerning limitation in a follow-on action arising out of the DRAM cartel, which had operated from 1998 to 2002. He found that the claims brought by Granville Technology Group (and the connected company VMT) were time-barred but that the claim brought by a third company – OTC – was not. All claimants were companies in liquidation.

The Defendants, Infineon Technologies AG and Micron Europe Ltd, were found to have participated in the cartel by a European Commission decision of May 2010. Granville, VMT and OTC were computer manufacturers who purchased DRAM at that time. In May 2016, just under six years from the date of the Commission’s decision, the liquidators filed claims for follow-on damages on behalf of the companies. The Defendants pleaded that the claims were time-barred and a preliminary issue on limitation was ordered.

The Claimants argued that s.32(1)(b) of the Limitation Act 1980 had the effect that in this case time did not start running until the announcement of the Commission’s decision. The Defendants argued that time started running far earlier because there was information in the public domain from 2002 about the US Department of Justice’s (“DOJ”) investigation into the DRAM cartel. The Claimants accepted that Granville and VMT (but not OTC) had actual knowledge of the DOJ investigation but denied that this sufficed to plead a standalone claim for breach of EU competition law in respect of purchases made in the UK.

Mr Justice Foxton found that a standalone claim against the Defendants in the EU could have been brought earlier, based on what was known and/or knowable about the Defendants’ conduct. As a result, he found that the claims brought by Granville and VMT were time-barred. However, Mr Justice Foxton found that OTC was in a different position because it had gone into liquidation prior to any reports into the DOJ investigation. He held that the fact of OTC’s liquidation affected the test for constructive knowledge. In particular, he rejected the suggestion that OTC should be assumed for the purposes of s.32(1)(b) to have the same knowledge as a trading computer manufacturer that was still involved in the acquisition of DRAM. Rather, he found that a reasonably diligent liquidator would not have been on notice of any facts triggering a need to investigate further. He therefore concluded that OTC’s claim was not time-barred.

The judgment is here.

Stefan Kuppen acted for the Claimants (instructed by Osborne Clarke).

Bioplus Life Sciences and Ors v Secretary of State for Health [2020] EWHC 329 (QB)

Bioplus Life Sciences claimed Francovich damages against the MHRA for losses suffered over a 9-year period, during which time the MHRA had regulated Bioplus’s drug Dolenio as a medicinal product requiring a marketing authorisation, but not competitors’ equivalent products (which were being sold as food supplements).

Bioplus had already established in a prior judicial review claim that this disparate treatment was unlawful, and now sought damages.

The matter was listed for a preliminary issue hearing on the sole question of whether the Medicinal Products Directive imposing regulatory and supervisory obligations on Member States entailed the grant of rights to individuals such as the Claimant, so as to provide the necessary foundation for a Francovich claim. Mrs Justice Eady held that they did not, and therefore dismissed the damages claim in its entirety. She found that the claim went no further than establishing the Claimants’ interest in the Defendant’s compliance with its obligations under the Directive (an interest which had given them standing to bring their successful judicial review proceedings), but otherwise the Claimants did not benefit from any individual right to be protected against the consequences of the MHRA’s failure to classify products materially identical to Dolenio as medicinal products.

Robert Palmer QC and Khatija Hafesji acted for the MHRA.

The judgment is here.

Meredith Pickford QC and David Gregory were in the General Court of the European Union on 12 to 14 February, as part of a team representing Google in an appeal against a decision of the European Commission. The Commission had found that Google abused a dominant position in the way that it presented results for shopping searches, for which Google was fined 2.4 billion euros. Meredith Pickford QC led on the legal issues for Google. He explained to the Court that the European Commission’s decision strayed from clear and established tests for what constitutes an abuse of dominance in European Law; and that, moreover, Google competed on the merits with innovations that benefited consumers. The case is a highly important one with significant ramifications for Article 102 TFEU and similar domestic competition rules on the test for abuse of dominance.

Motor Insurers’ Bureau v Lewis [2019] EWCA Civ 909

On the 13 February 2020, the application made by the Motor Insurers’ Bureau (“MIB”) to appeal against a tetraplegic’s personal injury claim, was refused in the Supreme Court and the Appellant also ordered to pay the Respondent’s costs.

In keeping with the recent trend, but possibly for the first time in the Transition Period, the Supreme Court also refused the MIB’s application for a reference to the CJEU.

This follows on from the Court of Appeal’s judgment in June 2019 which upheld the Judge’s ruling that the MIB was liable for the accident on private land in which the respondent claimant was injured when he was hit by the uninsured driver of a 4×4 motor vehicle.

In September 2018 the High Court held that whilst an accident on private land was not a liability which was required to be insured against pursuant to Part VI of the Road Traffic Act 1988, it was a liability which the MIB is obliged to satisfy pursuant to Directive 2009/103/EC (at least to the extent of the minimum in respect of personal injury of €1million per victim) and that the provisions of the relevant EU Motor Insurance Directives have direct effect against the MIB as an emanation of the state.

Philip Moser QC led David Knifton QC, instructed by David Gauler of Thompsons Solicitors, for the successful respondent, Mr. Lewis.

The Queen on the application of Harry Miller (Claimant) v (1) The College of Policing and (2) The Chief Constable of Humberside (Defendants)

Ian Wise QC, instructed by Paul Conrathe of Sinclairs Law, acted for the claimant, ex-police officer Harry Miller, in his challenge to the College of Policing guidance and the action of Humberside Police in following that guidance which required the police to record a ‘non-crime hate incident’ against him, following a complaint by an anonymous member of the public who said that they were offended by allegedly “transphobic” tweets.

This high-profile case raises important and novel issues concerning freedom of speech and social media and has been described by leading legal commentator Adam Wagner as the “most important judgment on free speech and social media for years”.

In his judgment handed down today, Mr Justice Julian Knowles held that although the College of Policing’s general guidance on the recording of “non-crime hate incidents” did not in and of itself involve a disproportionate interference with the Claimant’s Article 10 rights, Humberside Police had disproportionately interfered with the Claimant’s rights under Article 10 ECHR by recording the Claimant’s tweets as a “non-crime hate incidents” under that guidance and subsequently warning the Claimant that he may face criminal prosecution if he continued to tweet on the same subject. The High Court placed heavy reliance on the fact that the Claimant’s tweets formed part of a legitimate public debate about proposed reforms to the Gender Recognition Act 2004, and therefore any interference with the Claimant’s right to express an opinion on such issues required a very compelling justification, which was absent in this case. The judgment is notable for its detailed and penetrating analysis of the Strasbourg and domestic authorities on freedom of expression, and will no doubt form an important precedent in future cases involving such issues.

The judgment emphasises the vital importance of free speech in a democracy and provides a reminder that free speech includes not only the inoffensive, but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, and that the freedom only to speak inoffensively is not worth having. In response to the Defendants’ submissions that any interference with the Claimant’s rights was trivial and justifiable, the judgment is clear:
“The effect of the police turning up at [the Claimant’s] place of work because of his political opinions must not be underestimated. To do so would be to undervalue a cardinal democratic freedom. In this country we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society.”

You can read the full judgment here and detailed case note by Imogen Proud is here.

The case and judgment received significant media interest. See examples of today’s coverage:
BBCNews; The Times; The Guardian; The Evening Standard; The Telegraph.

Ian Wise QC acted for Mr Miller throughout the proceedings. Michael Armitage assisted Ian with in preparing the detailed legal submissions for the hearing.

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.