The Supreme Court has today handed down its long-awaited decision in the “benefit cap” appeals. In a lengthy judgment, comprising separate judgments from five of the seven members of the panel that heard the appeals, the Court has dismissed the appeals by a majority of 5:2 (Lady Hale PSC and Lord Kerr JSC dissenting).

The majority accepted that the revised benefit cap falls within the ambit of Article 8 and involved “Thlimmenos” difference of treatment in relation to lone parents with very young children compared with others subjected to the cap, but ultimately held that this differential treatment was justified for the purposes of Article 14 in the sense of not being ‘manifestly without reasonable foundation’. Accordingly, the appeals were dismissed despite express recognition in the main judgment of Lord Wilson that they had been “rightly brought”.

The powerful dissenting judgments express a different view as to the lawfulness of the revised (and harsher) cap. Lady Hale considered that this was a “clear case where the weight of the evidence shows that a fair balance has not been struck between the interests of the community and the interests of the children concerned and their parents” and held that it had been “comprehensively demonstrated by the mass of evidence… that the revised benefit cap is not suitable to achieving any of its declared aims.”

Ian Wise QC, Steve Broach and Michael Armitage acted for the Appellants in the “DA” case, working with Caoilfhionn Gallagher QC of Doughty Street Chambers and instructed by Rebekah Carrier of Hopkin Murray Beskine solicitors.

The judgment can be found here.

This case has also been covered by The Guardian, BBC and The Independent.

R (Heathrow Hub Ltd) v Secretary of State for Transport [2019] EWHC 1069 (Admin)

The High Court has today handed down judgment in R (Heathrow Hub Ltd) v Secretary of State for Transport [2019] EWHC 1069 (Admin). Heathrow Hub Ltd had challenged the Government’s decision to adopt a National Policy Statement favouring the expansion of Heathrow by way of a new runway to the north-west of the existing ones, as had been proposed by its owners and operators Heathrow Airport Ltd (HAL). The Claimants had promoted an alternative scheme to which they owned the intellectual property rights, involving an extension of the current northern runway so that it could effectively operate as two separate runways.

The Claimants alleged that the Secretary of State had breached EU law by insisting (prior to the decision on which scheme to prefer) that HAL must provide a guarantee or assurance that it would implement the Claimants’ scheme if that scheme were selected by the Government as its preferred scheme for airport expansion, and making the provision of that guarantee or assurance an effective pre-condition to the selection of the ENR Scheme. The alleged pre-condition was said to be unlawful as a matter of EU law insofar as it breached articles 106(1) and 102 of the Treaty on the Functioning of the European Union (“TFEU”), as it facilitated an abuse or potential abuse of dominance by HAL. The Claimants also argued that the decision had been made in breach of their legitimate expectation that no such assurance would be taken into account, and that it should be quashed on the grounds that the reasons provided for the decision were inadequate.

A Divisional Court composed of three judges (Hickinbottom LJ, Holgate J and Marcus Smith J) rejected the claim in its entirety. On the competition law complaint under articles 106(1) and 102 TFEU, the Court found that the matters complained of had played no material part in the decision to prefer the north-west runway scheme over the Claimants’ scheme, and that it was impossible to see how any abuse of a dominant position could arise on the part of HAL, or how the State Measure complained of could in any way have enabled the abuse. Nor in any event had the preference decision in any way influenced the structure of the market or had the effect of weakening competition. The Court further found that the Claimants had enjoyed no legitimate expectation of the kind asserted, and upheld the adequacy of the reasons given for the decision.

Four other applications for judicial review challenging the Secretary of State’s decision, brought by various local authorities, Transport for London, Greenpeace and Friends of the Earth (among others) were also dismissed. The judgment in those claims is here.

Robert Palmer QC and Alan Bates acted for the Secretary of State for Transport. Gerry Facenna QC acted for Heathrow Airport Limited.

Walter Hugh Merricks CBE v Mastercard Inc

On 16 April 2019, the Court of Appeal allowed Mr Merrick’s appeal from the Competition Appeal Tribunal’s (“CAT”) refusal to grant a collective proceedings order (“CPO”). The CAT’s order is, accordingly, set aside and the application for certification is remitted to the CAT for a re-hearing.

Paul Harris QC leads on behalf of the claimants in Walter Hugh Merricks CBE v Mastercard Inc. instructed by Quinn Emanuel, lead partner, Boris Bronfentrinker.

Click here for the judgment.

The case has been covered by the press including The Times, The Guardian, The Telegraph, BBC and The Lawyer.

A case note, written by Jack Williams can be viewed here.

Secretary of State for Health and others v Servier Laboratories Limited [2019] EWHC 1004 (Ch)

The High Court has today handed down judgment in Secretary of State for Health and others v Servier Laboratories Limited [2019] EWHC 1004 (Ch). The High Court rejected Servier’s arguments that findings of fact made by the General Court in its judgment in Servier v Commission Case T-691/14 handed down on 12 December 2018 would be binding in the preliminary issues trial in the High Court.

Of those propositions put forward by Servier which properly reflected the General Court’s findings of fact, none were ‘res judicata’ as a matter of EU law. Res judicata only extends to factual findings which are inseparable from, and necessary to explain, the operative part of the judgment. The Claimants are therefore not precluded in the preliminary issues trial from adducing their own evidence and arguing that the court should make contrary factual findings.

The Court also rejected Servier’s arguments that it was an abuse of process for the Claimants to advance arguments and adduce evidence contrary to Servier’s propositions.

Jon Turner QC and Philip Woolfe act for the English Claimants, Josh Holmes QC and Laura John act for the Welsh Claimants, and Daniel Beard QC, Julian Gregory and Alexandra Littlewood act for the Scottish and Northern Irish Claimants.

R v The Chief Constable of Sussex Police & Anor [2019] EWHC 975 (Admin)

On 15 April 2019, the Administrative Court held that Sussex Police had breached the data protection rights of a 16 year old girl by disclosing details of her vulnerability to child exploitation to the local Business Crime Reduction Partnership. The girl had been excluded from a number of local businesses by the Crime Reduction Partnership and the police had an agreement to share information with the Partnership concerning suspected offenders.

Although Sussex Police had “strongly disputed” sharing any such data with the Partnership, Mrs Justice Lieven DBE held that its denial was “difficult to accept” in light of emails which made it “plain” that information about the girl’s vulnerability had been disclosed. Moreover, the judge found, there was “no evidence that the Defendant properly weighed up the impact on the Claimant of sharing this information, or whether there were sufficient safeguards to ensure against onward transmission. In particular there is no evidence that the Defendant addressed its mind to the particular importance of not sharing information of this nature about a child”.

Mrs Justice Lieven also found that Sussex Police had failed to provide “full and fair disclosure of relevant material” concerning its dealings with the Crime Reduction Partnership, and that it was “virtually beyond doubt that there is further relevant material which still has not been disclosed”.

The case is one of the first cases under the Part 3 of the Data Protection Act 2018 concerning the processing of law enforcement data by a police force. Notably, processing of this type falls under the scope of the Law Enforcement Directive rather than the GDPR.

The judgment is available here and the BBC report is here.

Eric Metcalfe acted for the Claimant, instructed by Rachel Etheridge of Matthew Gold & Co Solicitors.

Wiltshire Council has withdrawn its proposals which may have led to the closure of two special schools, after permission to apply for judicial review was granted by the High Court in relation to the proposals. The Claimants, being groups supporting the two schools, were represented by Ian Wise QC (at the permission hearing) and Steve Broach (in their written arguments), working with Tom Tabori of 39 Essex Chambers and instructed by Keith Lomax of Watkins solicitors (whose news story is here).

The proposals would have seen the replacement of Larkrise school in Trowbridge and St Nicholas school in  Chippenham with a new school in Rowdeford, on the site of a third existing school. Parents of children at Larkrise and St Nicholas raised concerns about their children having to travel outside of their home communities to attend school. Those objecting considered that the proposals would have involved the replacement of three smaller schools with good access and links with their local communities with a large ‘mega-school’.

The proposals were challenged on grounds including the absence of lawful consultation and breach of the public sector equality duty. After permission was granted on these grounds, Wiltshire Council elected to withdraw the proposals and extend consultation prior to taking a new decision.

The Council states that ‘In order to foster good working relationships with families, prevent further delay and to conserve public money and cost for both parties, the council has now agreed a new way forward. Wiltshire Council has agreed to withdraw the decision to approve a statutory notice about the closure of three special schools (Larkrise, Rowdeford and St Nicholas), and the related notice regarding the opening of a new special school in Rowdeford. Wiltshire Council will now treat all previous consultation and responses that took place between 9 January 2019 and 1 March 2019 as part of a pre-publication consultation.  This means they are treated as part of an initial consultation on what proposals should be published for further consideration.  This is a process with a number of steps, and the council is re-opening the first stage.  The council will reach a decision about the next steps after the end of the extended consultation period.’

The High Court has declared that HMRC acted unlawfully in granting preferential tariff treatment to products from Morocco which originated in Western Sahara. HMRC – acting pursuant to advice given by the European Commission – had treated such products as being entitled to preferential tariff treatment. But, following a preliminary reference to the Court of Justice of the EU, the High Court declared that this position was not tenable and that there was no such entitlement under the EU Morocco Association Agreement. Similarly, the Secretary of State for the Environment, Food and Rural Affairs was not entitled to grant fisheries quotas for fishing in the territorial waters of Western Sahara under the EU Morocco Fisheries Partnership Agreement.

The declaratory relief granted by the High Court represents the successful culmination of 4 years of litigation, of wider significance for the interpretation and validity under EU Law of treaties with third states regulating trade relationships.

Conor McCarthy, instructed by Leigh Day, acted for Western Saharan Campaign UK (led by Kieron Beal QC)

In a judgment released today, Lewis J has rejected an application by Orion Corporation, a pharmaceutical company, to refer to the ECJ questions relating to the starting point of its period of data exclusivity under the Medicines Directive.

The Directive gives pharma companies that obtain a marketing authorisation a period of data exclusivity, during which the data from pre-clinical tests and clinical trials that they provide to the regulator when obtaining the authorisation cannot be used by any other company to obtain an authorisation for a similar drug. That period runs from the point at which the first marketing authorisation for the product is obtained in the EU. In the present case, the main issue was that a marketing authorisation was obtained in the Czech Republic in 2002 before its accession to the EU – the authorisation was maintained until several years after the Czech Republic joined the EU in 2004. A generic company had obtained a marketing authorisation from the UK and other EU Member States on the basis that the data exclusivity period ran from 2004 and had expired. Orion challenged the decision of the UK regulator, the MHRA, on the basis that the Czech authorisation did not “start the clock” because the Czech authorities had granted it before accession and, said Orion, had not complied with a number of important conditions surrounding the grant of an authorisation. The MHRA, the UK regulator, argued that the court was not entitled to look behind the Czech authorisation, which had to be treated as valid in 2004 when the Czech Republic joined the EU and therefore started the clock.

The Judge agreed with the MHRA and held that the position was clear: the data exclusivity period began to run in 2004 and had expired. There was no basis for a reference to the ECJ.

George Peretz and Ewan West acted for the MHRA.

SAE Education Ltd v HMRC

In a unanimous judgment handed down today, the Supreme Court overturned the judgment of the Court of Appeal and the decision of the Upper Tribunal and ruled that SAE Ltd, part of a global group of higher education providers, was entitled to claim exemption from VAT as a college of Middlesex University. The judgment reiterates that the policy objective of the exemption is to ensure that the VAT cost does not hinder student access to higher education, and concludes that denying exemption to providers on the basis that they are independent commercial entities would defeat that objective. The judgment will therefore be welcomed by thousands of university students in the UK.

The Supreme Court has provided much-needed clarity for those commercial higher education providers who must collaborate with UK universities because they do not have degree awarding powers. Its judgment effectively prevents HMRC from discriminating against profit-making providers on the basis that they do not have constitutional arrangements which are similar to those of Oxford and Cambridge colleges. There is no such “hard-edged” test, as previously found by the Court of Appeal. On the contrary, each case must be decided on its own particular facts and circumstances, having regard to the student-focused policy objective of the exemption.

A number of the infamous 15 “SFM Factors” have been jettisoned by the Supreme Court. Click here for a case note by Elizabeth Kelsey, junior counsel in the case, to see which of those Factors have survived.

Click here for the judgment.

Melanie Hall QC represented SAE Ltd and is currently advising commercial providers in a similar position.

Eurotunnel v Secretary of State for Transport

Eurotunnel and the Secretary of State for Transport have today settled Eurotunnel’s challenge to the award by the Government of contracts to DFDS, Brittany Ferries, and Seaborne Freight for the provision of additional freight capacity between the UK and continental Europe. The capacity contracts were procured under the extreme urgency provisions in regulation 32(2)(c) of the Public Contracts Regulations 2015 to deal with the consequences of a ‘no-deal Brexit’. Eurotunnel challenged this procurement as being unlawful under the Regulations. The Secretary of State denied that Eurotunnel had standing to make such a challenge and denied all the claims.The procurement claim was due to be heard by Mr Justice Stuart-Smith in the Technology & Construction Court between 1 and 6 March 2019.

Daniel Beard QC, Valentina Sloane, Ligia Osepciu and Jack Williams of Monckton Chambers acted for Eurotunnel.

Philip Moser QC, Ewan West and Azeem Suterwalla of Monckton Chambers acted for the Secretary of State.