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.

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.