Age Dispute JR: Jenn Lawrence succeeds in securing interim relief for unaccompanied child asylum seeker

R (on the application of BH) v LB Newham CO/804/2023

Jenn Lawrence is acting for BH, a young asylum seeker from Iranian Kurdistan. He claims to have entered the UK in September 2021 aged 16. However, in an age assessment the following year, the local authority attributed BH an age of 22. The local authority therefore decided that it owed no duties of accommodation and support to BH under the Children Act 1989 and passed him to the care of the Home Office.

This case is different from the majority of age dispute cases because, on his claimed age, BH was already 18 at the time of the interim relief hearing. However, the issue of age was of continuing relevance as it determined whether he was a “former relevant child” to whom the local authority continued to owe certain (albeit less onerous) duties under the Children Act 1989.

At the interim relief hearing in the Administrative Court, BH’s legal team was successful in securing an interim relief order which means that the local authority must continue to provide support and accommodation to BH as a “former relevant child” pending final determination of his judicial review claim.

In age disputes where the young person still claims to be a child, it is common that the local authority agrees to treat him or her as such pending final determination of the claim. It is much rarer to secure interim relief of this type in a case where the young person is already an adult.

Jenn Lawrence is instructed by Rory Matheson at Osbornes Law.

High Court allows irrationality challenge against the Secretary of State for Defence

In its judgment in R (MKA) v Secretary of State for Defence [2023] EWHC 1164 (Admin), the High Court granted an application for judicial review of a decision by the Ministry of Defence (“MoD”) on grounds or irrationality and breach of policy.

The Claimant, MKA, is an Afghan national who worked as a network engineer at British military camps and the British Embassy in Afghanistan. He applied to relocate to the UK under the Afghan Relocations and Assistance Policy (ARAP), in the light of his contribution to the British mission and the risk he now faces from the Taliban as a result. The MoD refused his application, finding that MKA was ineligible for relocation to the UK under ARAP. MKA challenged that refusal in the Administrative Court.

Allowing the claim, Foster J held that the decision “departed from an appropriate standard of public law decision-making … there is a disconnect between the materials produced on the Claimant’s behalf to the decision-maker and the reasoning of the review decision. The reasons show material errors were made and the conclusion cannot be safely justified.

She concluded that “the Claimant succeeds on the basis that the decision is not rationally defensible in that the reasons disclose material errors namely the mischaracterisation and/or ignoring of important material evidence as to the scope and importance of MKA’s contribution and the risks he was running.” The claim also succeeded on the basis that the Defendant misapplied and/or misunderstood his policy.

The MoD will now be required to reconsider the decision.

Nikolaus Grubeck and Alex Littlewood acted for the Claimant, instructed by Erin Alcock of Leigh Day.

Mercedes’ competition damages action knocked out on jurisdictional grounds

The High Court has found that Germany is the appropriate forum for Mercedes’ claim for damages relating to Hydraulic Braking Systems and after-series parts for cars.

Mercedes claimed damages against Continental and ZF in the English courts. Continental and ZF argued that Germany is the appropriate forum. Mr Justice Butcher accepted that the case should be tried in Germany.

The judgment is significant because, unlike under the Brussels Regulation, defendants in these kinds of cases are now able to make appropriate forum (“forum non conveniens”) arguments and the judgment provides insight into how the High Court will approach such issues in competition damages actions.

The judgment is available here.

Philip Woolfe appeared for Mercedes instructed by Willkie Farr & Gallagher LLP.

Josh Holmes KC and James Bourke appeared for the ZF Defendants instructed by Travers Smith LLP.

Judges’ data protection duties – High Court rules on judges’ obligations and the use of closed proceedings in subject access request claim

The High Court yesterday handed down judgment in X v. The Transcription Agency and Master Jennifer James [2023] EWHC 1092 (KB), dismissing in their entirety allegations that the Defendants had breached the claimant’s rights under the UK General Data Protection Regulation (“GDPR”) in refusing to provide personal data in response to a subject access request (“SAR”).

The Second Defendant is a High Court Master and a Costs Judge who was deciding cost proceedings in which the Claimant was a party. The First Defendant is a company providing court transcripts under a framework contract with the Ministry of Justice. During the costs proceedings, the Claimant made SARs to both Defendants for disclosure of his personal data. The Defendants declined to provide data in response, relying on the “judicial exemption” under paragraph 14 of Part 2 of Schedule 2 to the Data Protection Act 2018. This exemption has never previously been considered in any High Court or appellate judgment.

The High Court held the Defendants were entitled not to disclose the Claimant’s personal data, and that the judicial exemption should be interpreted broadly to cover all judicial functions given the strong public interest in safeguarding the independence of the judiciary. In reaching this conclusion, the Court rejected the Claimant’s reliance on internal guidance to the judiciary regarding their data protection obligations, which in some cases did not correctly reflect the position under the 2018 Act. The Court held that the guidance in some respects adopted too narrow a view of the scope of judges’ functions that would fall within the judicial exemption.

The High Court’s judgment also contains an important discussion of the procedure to be adopted by the court in claims concerning SARs. It concluded that the court has an implied power under the UK GDPR and 2018 Act to hold closed sessions where it can inspect personal data withheld by a data controller in the absence of the claimant – an approach which effectively mirrors the use of closed procedures in Freedom of Information Act 2000 appeals.

Alan Bates and Will Perry appeared for Second Defendant, Judge James (instructed by the Government Legal Department). Azeem Suterwalla also represented the Second Defendant at an earlier stage of proceedings.

High Court rules on scope of EU animal testing ban – Alan Bates represented the claimant

The High Court today handed down judgment clarifying the relationship between the EU Cosmetics Regulation (which regulates the safety of cosmetic products and ingredients), and the EU Regulation known as ‘REACH’ (which regulates chemicals generally). Both of those EU Regulations have been retained, with minor adaptations, as part of UK law after Brexit.

The Court was deciding a case brought by the campaign group Cruelty Free International (‘CFI’) relating to the Home Office’s change to its long-standing policy of not granting licences for proposed animal testing projects for assessing the safety of substances used predominantly or exclusively as ingredients in cosmetics (‘the Policy’).

The Policy was publicly adopted by the Home Office in 1998 and reiterated in the years since then. In 2015 the Home Office made it clear that the Policy was ‘an absolute ban’ on animal testing relating to cosmetic products and ingredients. The Home Office described the Policy as reflecting an ethical position that the causing of pain and suffering to animals cannot be justified for purposes relating to cosmetics.

After the Home Office had already adopted the Policy, EU cosmetics legislation (including the Cosmetics Regulation 2009) was made which included EU‑wide bans on both: (a) the carrying out of animal testing of cosmetics products and ingredients within the EU (“the Testing Bans”); and (b) the marketing in the EU of cosmetic products and ingredients that had been tested on animals after a specified cut-off date (“the Marketing Bans”).

In August 2021, however, it emerged from correspondence between CFI and the Home Office that the Home Office was no longer applying the Policy when considering licence applications for animal testing projects for generating data for satisfying requirements arising under the REACH Regulation.

The REACH Regulation includes requirements for manufacturers and importers of chemical substances to register those substances the European Chemicals Agency and to provide data relating to the ‘intrinsic properties’ of the substance including in terms of toxicity and other effects on human health and the environment. (The same requirements have been retained in UK law after Brexit, but with the Health and Safety Executive, rather than the European Chemicals Agency, being the regulatory authority.)

The practical effect of the Home Office no longer applying the Policy when considering applications for licences for animal testing projects for satisfying requirements arising under the REACH Regulation was that the Home Office was now willing to licence animal testing in Great Britain for purposes relating to cosmetic products and ingredients. This willingness was incompatible with the Policy.

The Home Office argued that it had had no choice but to stop applying the Policy. According to the Home Office, it was legally obliged by the REACH Regulation to be willing to grant licences for animal testing projects for satisfying requirements arising under that Regulation.

CFI brought a judicial review claim challenging the Home Office’s interpretation of the REACH Regulation and its legal effects. CFI also challenged the lawfulness of the Home Office’s conduct in ceasing to adhere to the Policy without modifying its published guidance or otherwise publicly announcing the change.

It emerged from disclosure and evidence provided by the Home Office during the court proceedings that the Home Office’s decision to resume granting licences for animal testing relating to cosmetic ingredients was taken in February 2019. There was thus a period of around 2½ years during which animal protection campaign groups and the public understood that the Policy remained in place (and, therefore, that animal testing for purposes relating to cosmetics was not being permitted in Great Britain), but the Home Office was in fact no longer applying the Policy.

In its judgment handed down today, the High Court (Mr Justice Linden) decided that the Home Office’s case that it was legally obliged to stop applying the Policy was wrong in law. The fact that an animal testing project was for generating data for satisfying a requirement arising under the REACH Regulation did not mean that the Home Office was legally required to grant – or even to be willing in principle to grant – licences permitting such testing. In other words, the Home Office could have chosen to maintain the Policy. It would therefore be lawful for the Home Secretary now to resume applying the Policy.

The Court also held, however, that the EU Testing Bans imposed by the Cosmetics Regulation do not prohibit animal testing carried out for the purpose of satisfying requirements arising under the REACH Regulation. Therefore, it was not unlawful for the Home Office to, in its discretion, choose to grant licences for such animal testing to take place. Further, the Home Office was not obliged by public law principles to inform CFI or the public that the Policy was no longer being applied. Therefore, CFI’s judicial review claim was dismissed.

A news article in the cosmetics industry journal Cosmetics Business reporting on the judgment (“UK government can reinstate policy ban on the animal testing of cosmetics, rules High Court judge”) is available here.

The full judgment is available here.

The Court has granted CFI permission to appeal to the Court of Appeal in respect of the interpretation of the REACH Regulation and its relationship with the Cosmetics Regulation.

Monckton barrister Alan Bates represented the claimant, CFI.

ICO fines TikTok for misusing children’s data

The Information Commissioner’s Office (“ICO”) has imposed a £12.7 million fine on TikTok for a number of breaches of data protection law, including failing to use children’s personal data lawfully.

The ICO estimates that TikTok allowed up to 1.4 million UK children under 13 to use its platform in 2020, despite TikTok’s own rules not allowing children of that age to create an account. The ICO found that TikTok had failed to obtain the requisite parental consent under Article 8 UK GDPR. It also fined TikTok for breaches of Articles 12 and 13 GDPR, for failing to provide appropriate information to people using the platform about how their data is collected, used, and shared in a way that is easy to understand. Without that information, users of the platform, in particular children, were unlikely to be able to make informed choices about whether and how to engage with it. The ICO further found that TikTok had breached Article 5 UK GDPR, by failing to ensure that the personal data belonging to its UK users was processed lawfully, fairly and in a transparent manner.

The ICO’s announcement is available here.

The decision has been widely reported on, including by CNN, NBC, the Financial Times, the BBC, CNBC, the Guardian, the Telegraph and the Daily Mail.

Nikolaus Grubeck and Jenn Lawrence have been advising the ICO.

Gerry Facenna KC, Nikolaus Grubeck and Alison Berridge instructed in multi-billion-pound ad tech lawsuit against Google

Gerry Facenna KC, Nikolaus Grubeck, and Alison Berridge, instructed by Hausfeld LLP, are representing technology journalist and campaigner Charles Arthur in proposed collective proceedings against Google.

Mr. Arthur has filed a claim in the Competition Appeal Tribunal, seeking an estimated £3.4bn in damages on behalf of over 200,000 publishers of websites and apps who were deprived of ad revenue as a result of abuses of dominance by Google.

Display ads are a form of advertising that are shown when a user visits a website or app. Google holds a dominant position in a number of markets for services which intermediate between publishers offering online display advertising and advertisers. Mr Arthur alleges that Google foreclosed those markets, excluding rivals and raising the costs to publishers.

Mr Arthur has secured third-party litigation funding, meaning affected UK publishers will not pay costs to participate in this legal action or have any financial risk in relation to Google’s costs.

The case has been covered in the media, including The BBC and The Global Competition Review. The claim website can be found here.

Revised DPA Immigration Exemption legislation again held to be unlawful

In R (the3million and Open Rights Group) v SSHD and SSDCMS [2023] EWHC 713 (Admin) the High Court found unlawful the UK Government’s second attempt to enact statutory restrictions on data protection rights in the context of immigration control.

The Court of Appeal previously held in R (Open Rights Group & The3Million) v SSHD & SSDCMS [2021] EWCA Civ 800 that an earlier version of the Immigration Exemption under the Data Protection Act 2018 was incompatible with retained EU law. The Government subsequently enacted the Data Protection Act 2018 (Amendment of Schedule 2 Exemptions) Regulations 2022 (SI 2022/76), amending the DPA 2018 in light of the Court of Appeal’s decision. The Claimants made a further challenge to the revised version of the Immigration Exemption, arguing that Government’s second attempt failed to remedy the defects identified in the first claim and remained in breach of Article 23 of the UK GDPR.

Saini J agreed, allowing the Claimants’ challenge and holding that “the overriding matter which needs to be addressed by the Defendants is the use of a policy to set out the safeguards and tests to be applied in using the Immigration Exemption. … the measures to satisfy the relevant provisions of Article 23(2) need to be set out in either legislation, or a code endorsed by Parliament, with binding legal effect in domestic law.” He therefore made a declaration that the Immigration Exemption is unlawful but suspended that order for a period of three months, to allow the Defendants an opportunity to put in place compliant legislation.

The judgment is available here.

Nikolaus Grubeck and Julianne Kerr Morrison acted for the successful Claimants, instructed by Leigh Day.

CAT certifies Boundary Fares opt-out collective proceedings against the operator of the Thameslink, Southern and Great Northern rail franchises

On 24 March 2023, the Competition Appeal Tribunal certified an application for opt-out collective proceedings against Govia Thameslink Railway Limited, the operator of the Thameslink, Southern and Great Northern rail franchises, together with its parent companies, for alleged abuses of their dominant position in relation to the sale of “Boundary Fares”, a type of extension ticket for use in conjunction with a TfL Travelcard. The Tribunal’s judgment is available here.

The class representative, Mr Justin Gutmann, alleges that the Defendants abused their dominant position by failing to make Boundary Fares sufficiently available, or to use their best endeavours to ensure a general awareness among their customers of Boundary Fares, and alleges that this has resulted in many Travelcard holders paying twice for part of their rail journeys. The Defendants deny the claim in full.

The application for a collective proceedings order was unopposed by the Defendants in light of the fact that the Tribunal has already authorised Mr Gutmann to act as the class representative in materially identical collective proceedings against the operators of the South Eastern and South Western rail franchises: see here. An appeal against that judgment was dismissed by the Court of Appeal in July 2022: see here.

At a hearing on 22 March 2023, the Tribunal also considered an application by the Secretary of State for Transport to intervene in the three sets of collective proceedings. The Tribunal granted the Secretary of State permission to file written submissions on the regulatory framework of fare setting and arrangements made thereunder, but otherwise refused his application.

The Tribunal also determined that the three sets of collective proceedings shall be case managed and tried together. A further CMC will be held in the summer term to consider directions to trial.

Philip Moser KCStefan Kuppen and Alexandra Littlewood (instructed by Hausfeld & Co LLP and Charles Lyndon Ltd) represent Mr Gutmann.

Tim Ward KC and James Bourke (instructed by Slaughter and May) represent First MTR South Western Trains Limited.

Paul Harris KCAnneliese Blackwood, Michael Armitage and Clíodhna Kelleher (instructed by Freshfields Bruckhaus Deringer LLP) represent Govia Thameslink Railway Limited, Govia Limited, The Go-Ahead Group Limited, Keolis (UK) Limited and London & South Eastern Railway Limited.

Anneli Howard KC, Brendan McGurk and Khatija Hafesji (instructed by Linklaters LLP and Eversheds Sutherland) represent the Secretary of State for Transport.

CAT orders cost capping in first subsidy control case

In the first appeal brought under section 70 of Subsidy Control Act 2022 (the “2022 Act”), the President of the Competition Appeal Tribunal has ordered that any costs award in favour of Appellant be capped at £60,000 and any costs award in favour of the Respondent be capped at £50,000: The Durham Company Limited v Durham County Council [2023] CAT 14.

The President indicated that subsidy control cases should be seen through the lens of the Tribunal’s “fast track” procedure, regardless of whether any formal order is made under rule 58.

The Appellant supported a cost capping order (having initially sought an order for cost budgeting). The Respondent local authority accepted that the Tribunal had jurisdiction to make a cost capping order, but had argued that the Tribunal ought to approach its discretion in accordance with the Corner House principles applicable in High Court judicial review cases. Those principles would not be satisfied in this case because the Appellant has a private interest in the outcome of the proceedings.

The President held that the Tribunal’s jurisdiction to impose cost capping in such cases arises under its general cost management power in rule 19(2)(r), not the cost capping provisions of rule 58. He further confirmed that, while section 70(5) of the 2022 Act requires the Tribunal to approach the substance of a subsidy appeal applying the same principles as would be applied on a judicial review, that did not import all of the associated procedures of the High Court. The Tribunal will, instead, apply its own, more flexible, rules and procedures.

Consistent with the Tribunal’s aim to keep subsidy control appeal “fast, cheap and simple”, a hearing of the appeal (filed on 3 February 2023) has been listed on 3 and 4 July 2023.

Michael Bowsher KC and Ligia Osepciu (instructed by Tilly, Bailey and Irvine LLP) represent the Appellant, The Durham Company.