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Wiltshire Council has withdrawn its proposals which may have led to the closure of two special schools, after permission to apply for judicial review was granted by the High Court in relation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.

RD & Ors, R (on the application of) v Worcestershire County Council [2019] EWHC 449 (Admin)

In a judgment handed down today, the Administrative Court has ruled that Worcestershire County Council acted unlawfully in failing to carry out proper transitional planning in relation to families affected by its decision to cut a much-valued home-visiting service known as ‘Portage’ for children with special educational needs and disabilities. The Claimants raised a variety of statutory and common law challenges to the decision-making process. Mr Justice Nicklin ultimately decided the case on the basis that the Defendant had frustrated the affected families’ legitimate expectations, which had arisen from assurances made by the Defendant at the time the decision to cut the Portage service was taken to the effect that proper transitional planning would take place in order to ensure that the impact of the cessation of the service would be properly mitigated.

Michael Armitage acted for the Claimants, instructed by Bindmans LLP. Having acted unled at the permission stage, Michael was led by Jenni Richards QC of 39 Essex Chambers at the substantive hearing.

Steve Broach also advised the Claimants at an earlier stage in the proceedings.

The judgment is the latest in a series of cases in which Monckton members have successfully represented claimants challenging local authority cuts (see News 14 August 2018, 6 August 2018 and 22 July 2016)

On 21 February 2019, the FCA issued a decision which finds that 3 asset management firms breached competition law. This is the FCA’s first formal decision under its competition enforcement powers.

The infringements found by the FCA consisted of the sharing of strategic information, on a bilateral basis, between competing asset management firms during one initial public offering and one placing, shortly before the share prices were set. The firms disclosed and/or accepted otherwise confidential bidding intentions, in the form of the price they were willing to pay and sometimes the volume they wished to acquire. This allowed one firm to know another’s plans during the IPO or placing process when they should have been competing for shares.

Asset managers bid for the shares they want in IPOs and placings against competing asset managers in prevailing market practice. The FCA found that if asset managers share detailed and otherwise confidential information about their bids with each other, they undermine the process by which prices are set. This can reduce pressure to make bids that reflect what they really think the company is worth. This could reduce the share price achieved by the IPO or placing and so raise the cost of equity capital for the issuing company. According to the FCA, firms rely on such capital as a way of financing investments, so unlawful information sharing could increase the cost of related investments or even make them unviable.

The FCA has fined Hargreave Hale Ltd £306,300 and River and Mercantile Asset Management LLP (RAMAM) £108,600. The FCA also found that Newton Investment Management Limited was involved in the anti-competitive conduct, but it was not fined because it was given immunity under the competition leniency programme.The companies now have two months to appeal the FCA’s decision.

Kassie Smith QC, Alison Berridge and Jack Williams are acting for the FCA.

Daniel Beard QC is acting for Hargreave Hale.

A Complex dispute concerning the Aggregates Levy has now been concluded after over 14 years of litigation in the European and domestic courts. Three separate but linked appeals to the General Court have been withdrawn after hearings in Luxemburg  but before Judgments were handed down.

The Aggregates Levy was introduced by the UK Government in the Finance Act 2001 as an environmental tax on the commercial exploitation of aggregate in the UK.  Its overall aim was to encourage the commercial exploitation of aggregate to be conducted in a more environmentally friendly manner.

The Levy included a series of complex exemptions and reliefs for certain types and uses of aggregate in the UK.  Due to particular circumstances affecting Northern Ireland, a specific relief was adopted in order to give the industry in Northern Ireland sufficient time to adapt to the Levy.  The European Commission decided that, with certain exceptions, these exemptions and reliefs from the Levy did not constitute state aid. Its decisions to that effect were challenged by the British Aggregates Association and, in relation to Northern Ireland, certain quarries located in the Republic of Ireland on the basis that the exemptions and reliefs did comprise state aid, which was said to have distorted competition in a way that was not compatible with the single market.

It is the appeals against those decisions in cases T-101/14, T-610/15 and T-741/15 that have now been withdrawn.  These appeals were the second round of challenges conducted in the European Courts against the Commission’s approval of certain other aspects of the Levy. In general terms it was said that the exemptions from the levy amounted to incompatible state aid.

The Government has now made a written statement in Parliament indicating that it will be reviewing the operation and effectiveness of the levy over the next year.  The Written Statement can be found here.

Melanie Hall QC and Ben Rayment represented the United Kingdom on each of the appeals.