Telefonica successfully discharges GSM Gateways injunction

The High Court has discharged an injunction that was obtained by Packet Media Limited (“PML”) against Telefonica UK (“TUK”) in July 2015. PML operates GSM Gateways and provides telecommunications services to its own business customers. The use of those Gateways was contrary to TUK’s Gateway Policy. PML sought to restrain TUK from disconnecting the SIM cards that PML were using to provide access and origination services to its customers. It did so on the basis that it was arguable that TUK were dominant on the market for the wholesale supply of access and origination services and was abusing that dominance. TUK had been given liberty to discharge the injunction and applied to do so by reference, inter alia, to public statements by Ofcom that that market was highly competitive. The Court found that the contention that TUK were dominant on that market did not give rise to a serious to be tried. The injunction will be discharged within two weeks and the Claim was struck out.

Brendan McGurk acted for Telefonica

MOJ Whiplash reforms are compatible with Articles 102 and 106 TFEU

The Administrative Court has rejected a judicial review challenge to the Government’s recent whiplash reforms, which on 6 April 2015 introduced a mandatory requirement for personal injury solicitors to instruct medical experts via the MedCo internet portal.

A leading medical reporting organisation (MRO), Speed Medical Examinations Limited, sought to challenge the operation of the Portal on the basis that it had affected its volume of business and restricted competition in the market for medical expert reports contrary to  EU and national competition law. Mr Justice Cranston held that MedCo could not be abusing its position in the upstream market for the provision of access to medical experts by distorting competition in the downstream market for the supply of medical reports in circumstances where it was not active or had no commercial interests downstream market and/or derived no direct or indirect economic advantage from distorting competition. As a regulator, acting in the public interest, implementing a policy of the Secretary of State for Justice, it was performing a public function and could not be resorting to methods different from those governing normal competition. Further, in implementing government policy, MedCo was complying with a legal requirement under Schedule 3 of the 1998 Act which sheltered it from all liability. Lastly, Cranston J held that even in there were some effect on competition downstream, the MedCo scheme formed part of the wider whiplash reforms programme and was objectively justified on the basis that it removed conflicts of interests from the selection process and ensured the independence of medical experts and MROs providing evidence for whiplash claims. At the same time, it was proportionate and did not go beyond what was necessary as it ensured that all MROs had an opportunity to be presented in the search results and preserved choice for users. Competition between large and small MROs was maintained and there were no barriers to entry that would make the market overly rigid or prevent future evolution of the market.  The Portal was less draconian that other alternatives discussed in the consultations.  A rationality challenge was also dismissed.

This judgment is important for the assessment of conduct that straddles two related markets under Art 102 TFEU as well as the characterisation of public service entities under competition law.

Anneli Howard, led by James Eadie QC, acted as junior counsel for the Secretary of State for Justice.

A copy of the judgment can be found here.


Reference to CJEU on ‘DRIPA’ data retention regime and Digital Rights Ireland

R v Secretary of State for the Home Department ex p David Davis MP, Tom Watson MP, Peter Brice and Geoffrey Lewis

Open Rights Group, Privacy International and the Law Society intervening

The Court of Appeal has today handed down judgment in an appeal concerned with the Home Secretary’s powers in relation to the retention of communications data and the validity of section 1 of the Data Retention and Investigatory Powers Act 2014 (“DRIPA”). It has decided to refer questions to the CJEU concerning the meaning of the CJEU’s judgment in Joined Cases C/293/12 and C/594/12 Digital Rights Ireland Ltd and Seitlinger and Others.

The Home Secretary appealed against the judgment and order of the Divisional Court ([2015] EWHC 2092 (Admin)), which found s1 DRIPA to be contrary to the CJEU’s judgment and disapplied DRIPA with effect from March next year. S1 DRIPA gives the Home Secretary the power to require public telecommunications operators to retain communications data for one or more specified purposes, including, but not limited to, the prevention of serious crime. The Divisional Court accepted the argument of the Claimants, including David Davis MP and Tom Watson MP, that s1 DRIPA was inconsistent with Articles 7 and 8 of the EU Charter because it did not set down clear rules governing access to the data and, in particular, did not make access dependent on prior judicial or independent review.

The Secretary of State appealed on the basis that the judgment below was based on a misunderstanding of the CJEU’s judgment in Digital Rights Ireland, delivered on 8 April 2014.

In its judgment the Court of Appeal has accepted, on a provisional basis, the Home Secretary’s argument that Digital Rights Ireland, which invalidated Directive 2006/24/EC (“the Data Retention Directive”), did not lay down mandatory requirements applicable to all Member States’ domestic data retention regimes, contrary to the Divisional Court’s interpretation. At the request of the Home Secretary, and given the difference in approach between different national courts, the Court of Appeal decided to refer questions as to the correct interpretation of Digital Rights Ireland to the CJEU, including on whether the CJEU in that judgment intended to expand the scope of Articles 7 and 8 of the EU Charter beyond the effect of Article 8 ECHR.

Daniel Beard QC and Gerry Facenna acted for the Secretary of State.

Azeem Suterwalla acted for the Respondents Brice and Lewis.

The judgment is available here.


Court of Appeal provides guidance on the meaning of “family member” for the purposes of EU free movement rights: Entry Clearance Officer v SM (Algeria) [2015] EWCA Civ 1109

In a judgment handed down on 4 November 2015, the Court of Appeal allowed an appeal against a decision of the Upper Tribunal concerning the rights of EU citizens to bring non-EU family members into the UK.  In doing so, it clarified the scope of the term “family member” in EU law as it applies to adoptive relationships, in particular those with an inter-country element.
The case concerned an application by an Algerian child (“SM”) to enter the UK as the family member of a French national who had assumed guardianship of her under Algerian law.  Rights of entry and residence are conferred on EU citizens and their family members by Directive 2004/38/EC (“the Citizenship Directive”), as implemented in the UK by the Immigration (European Economic Area) Regulations 2006 (“the Regulations”).  SM’s application had been refused on the basis that, since the Algerian arrangement was not recognised as an adoption under UK law, she did not qualify as a family member for the purposes of the Citizenship Directive and the Regulations.


The Upper Tribunal had allowed SM’s appeal, holding that the 2006 Regulations needed to be interpreted in conformity with the Article 8 of the ECHR and that, adopting such a construction, SM qualified as a family member of her sponsor.
The Court of Appeal overturned the Upper Tribunal’s decision.  It held that:

  1. It was unnecessary and inappropriate to adopt an Article 8 construction of the 2006 Regulations where there had been no finding that, absent such a construction, there would be a contravention of SM’s Article 8 rights.
  2. SM was not a “family member” within the meaning of Article 2 of the Directive.  The EU legislator had left it to Member States to decide on the terms upon which adopted children would be recognised as direct descendants under Article 2 of the Directive.  It had done so in the expectation that the international obligations relating to the welfare of children (such as those contained in the UN Convention on the Rights of the Child and the Hague Convention on Inter-Country Adoption) would be respected.  The UK’s rules – which SM did not satisfy – were a reasonable and proportionate means of giving effect to its international obligations, and did not contravene EU law.
  3. SM was not an “other family member” under Article 3 of the Directive either.  The distinction between Articles 2 and 3 was not one of legal formality, but of the relative proximity of the individual to the EEA sponsor.  Moreover, since the purpose of the Directive (to strengthen and support the EU right of free movement) was distinct from the ECHR, the fact that SM enjoyed family life with her sponsor did not make her a “family member” for the purposes of EU law.

Ben Lask acted for the Entry Clearance Officer.


To read the full judgment please click here Entry Clearance Officer v SM (Algeria)

Commercial agent’s ‘Shearman v Hunter Boot clause’ severed by Mercantile Court

Brand Studio Limited v St John’s Knits [2015] EWHC 3143 (QB), Teare J

This case concerned a commercial agency between a UK agent and a Californian principal. The agency contract contained a clause that elected Regulation 17 indemnity upon termination, with a proviso that the agent would get Regulation 17 compensation if that proved to be cheaper for the principal. It was common ground that the effect of that proviso was unlawful per the finding in relation to an essentially identical clause in Shearman v Hunter Boot Ltd [2014] EWHC 47 (QB). The principal in Brand submitted that the proviso could however be severed, leaving the lawful choice of an indemnity in the first part of the clause; a point left open in Shearman.

The Court (Teare J) held that the Regulation 17(2) question, whether the contract “otherwise provides”, fell to be considered after, not before, severance, particularly in this case where the agreement itself expressly contemplated severance in the event that any provision of the agreement was held to be invalid. Further, that following Beckett Investment Management Group v Hall [2007] 1 ICR 1539 (CA) the threefold test for severance formulated in Sadler v Imperial Life Assurance [1988] IRLR 388 should be adopted. The issue was whether the removal of the unenforceable provision so changed the character of the contract that it became “not the sort of contract that the parties entered into at all”. The judge found that, after severance, it was an agency contract in which the agent has agreed to accept an indemnity whether or not compensation would be a lesser sum, so that it remained “the sort of contract that the parties had entered into”. Consequently the agency contract “otherwise provides” for indemnity under Regulation 17.

Philip Moser QC and Azeem Suterwalla (instructed by Harbottle & Lewis LLP) acting for the Defendant principal.

To read the full judgment please click here Brand Studio Limited v. St John Knits


The Supreme Court rejects Subway application for permission to appeal

The Supreme Court has confirmed that HMRC are entitled to charge VAT on hot takeaway foods as that in so doing they do not breach any principles of European law.

Sub One’s permission to appeal to the Supreme Court regarding the taxation of its toasted sandwiches was refused on 17th December. Permission was refused on the basis that Sub One’s application did not raise an arguable point of law.

Click to view the Supreme Court reasoning and the summary order for Sub One Limited v HMRC.

Melanie Hall QC, representing HMRC, led Ewan West of Monckton Chambers


The Court of Appeal give permission to challenge the lawfulness of the UK’s implementation of the education exemption

The Court of Appeal has given permission to Finance and Business Training Limited, represented by Melanie Hall QC,  to challenge the manner in which the UK has implemented Article 132 of the Principal VAT Directive. One of the key issues for consideration will be whether the treatment of the education exemption in the VAT Act 1994  breaches European Law.     


Jeremy McBride advises Council of Europe

At its session on 11-12 October, the European Commission for Democracy through Law (the Venice Commission) adopted its Joint Opinion with the Council of Europe’s Directorate for Human Rights on the draft Law of Ukraine on the Public Prosecutor’s Office.

This draft Law will abolish the function of general supervision that currently allows the Public Prosecutor’s Office an extensive ability both to intrude into the functioning of the executive and to interfere with the interests and activities of private individuals and organisations. This capacity is compounded by the entitlement of the Prosecutor General and other public prosecutors to participate in the proceedings of the Ukrainian Parliament, boards of ministries, central executive agencies, local councils and other administrative bodies.[1] These powers and rights individually and cumulatively run counter to the appropriate separation of powers in a democracy, as well as posing a threat to rights and freedoms that are supposedly safeguarded by the Constitution.

Although welcoming this reform, the Joint Opinion identified five major areas of concern regarding the provisions relating to the powers of representation of the interests of the citizen and the state in non-criminal matters, the protection of the independence of public prosecutors, the appointment and dismissal of the Prosecutor General, the potential of certain provisions to restrict unjustifiably investigation and reporting by the media and the disciplinary procedures for public prosecutors. In addition to these main shortcomings, the Joint Opinion noted many important points of detail concerning individual provisions for which amendments and/or clarifications are required.

The enactment of a Law that satisfactorily addresses the points made in the Joint Opinion is one of the conditions for the conclusion of the EU-Ukraine Association Agreement at the EU’s Eastern Partnership summit in Vilnius in November.

The Joint Opinion was adopted on the basis of comments prepared by Jeremy McBride, acting as an expert for the Council of Europe, together with members of the Venice Commission and other Council of Europe experts.

Jeremy McBride is continuing to advise the Council of Europe on the steps needed to adopt a Law that meets European standards. Previously he advised the Council of Europe on the preparation of a new Code of Criminal Procedure in Ukraine to replace the one adopted during the Soviet era.

To read the Joint Opinion in full, please click here

Key Strasbourg Ruling on Hearsay Evidence and “Judicial Dialogue”

Eric Metcalfe acted on behalf of the NGO intervener JUSTICE in a landmark judgment by the Grand Chamber of the European Court of Human Rights in the case of Al Khawaja and Tahery v United Kingdom.

The much-anticipated ruling came in the wake of the judgment of the UK Supreme Court in R v Horncastle in late 2009 in which the Supreme Court had strongly criticised the earlier chamber judgment of the European Court in Al Khawaja. At issue was the use of hearsay evidence under the Criminal Justice Act 2003 as the “sole or decisive” basis for a person’s conviction, and whether this was compatible with the right to cross-examine witnesses as part of the right to a fair trial under Article 6(3)(d) of the European Convention on Human Rights. The UK Supreme Court complained that the European Court of Human Rights had misunderstood the safeguards in the 2003 Act that prevented unfairness to the accused. The UK government therefore sought a referral to the Grand Chamber and a hearing was held in May 2010.

In its judgment, the Grand Chamber upheld its previous rulings that a conviction based “solely or decisively” on the testimony of absent witnesses was likely to breach the right to a fair trial under article 6 unless it could be shown that “there are sufficient counterbalancing factors in place”, including “measures that permit a fair and proper assessment of the reliability of that evidence to take place”. The Grand Chamber ruled that the safeguards available in the case of one of the applicants (Al Khawaja) had been sufficient to meet fair trial concerns, but found the UK government in breach of article 6(3)(d) in relation to the second applicant, Mr Tahery.

In addition to its implications for “sole or decisive” rule under article 6, the Grand Chamber ruling has a significant public law dimension as it relates to the process of “judicial dialogue” under section 2 of the Human Rights Act between the UK Supreme Court and the European Court in cases in which the UK Supreme Court has serious concerns about the implications of a Strasbourg ruling for UK law. In a concurring opinion, the European Court’s President Sir Nicolas Bratza described the case as “a good example of the judicial dialogue between national courts and the European Court on the application of the Convention”.