Upper Tribunal asks the Court of Justice of the EU whether EU regulation on the origin of solar panels is valid

In a judgment issued today in the case of Renesola v HMRC, the Upper Tribunal (Mr Justice Marcus Smith and Judge Richards) has asked the Court of Justice of the EU for a preliminary ruling on the validity of a Commission Regulation fixing the country of origin of solar modules (commonly known as solar panels). The Commission Regulation lays down that, for EU customs purposes, solar modules are to be taken to have their origin in the country where the solar cells are manufactured.

The case was brought by an importer into the UK of solar modules made in India. The cells used in the modules came from China. HMRC applied the Regulation and treated the modules as having Chinese origin – which meant that they were liable to pay high anti-dumping and countervailing duties imposed by EU trade defence measures on solar modules with Chinese origin. The importer argued that it wasn’t liable to those duties because the Commission had exceeded its powers in making the Regulation, because the manufacturing of the modules in India from the cells and other items was the last substantial manufacturing process (the relevant test of origin in EU and WTO law).

Although the First-tier Tribunal has refused to make a reference, the Upper Tribunal accepted that the FTT had gone wrong in failing to take any proper account of the evidence that cells were useless as generators of electricity outside modules because they were not durable in outside conditions. The UT accepted that the substantial change in durability as between cells and modules, among other factors, could well mean that the manufacture of modules had to be regarded as a substantial step in manufacture, and thus as the last substantial step. If that was right, then the Commission could have exceeded its powers by making a Regulation fixing origin at the cell stage. Since only the CJEU could find a Commission Regulation to be invalid, a reference should be made.

The outcome of the reference will be relevant to the UK even after the end of transition, since the relevant EU rules are based on WTO principles, which the UK will have to apply even after Brexit.

It should be noted that during the transitional period (until at least 31 December 2020) the UK courts remain, under the Withdrawal Agreement and the EU Withdrawal Agreement Act 2020, able to – and in some cases bound to – make preliminary references to the CJEU. The CJEU can decide those references even after the end of the transition period, and the CJEU’s answer will bind the UK courts.

George Peretz QC represented the importer, Renesola.

Court of Appeal rejects Heathrow third runway competition law appeal

R (Heathrow Hub Ltd) v Secretary of State for Transport [2020] EWCA Civ 213

The Court of Appeal has today handed down judgment in the two appeals challenging the Government’s decision to adopt a National Planning Statement in favour of a third runway at Heathrow. Besides the well publicised success of the climate change challenge brought by Plan B Earth and Friends of the Earth, the Court also gave judgment in the separate competition law based judicial review brought by Heathrow Hub Ltd (“Hub”).

This judgment is significant not only for its analysis of the principles to be applied under articles 106(1) and 102 of the Treaty on the Functioning of the European Union (“TFEU”) regarding abuse of a dominant position, but also for its discussion of the principles governing the application of Article IX of the Bill of Rights, concerning the circumstances in which statements made in Parliament can be used in court challenges.

Hub had promoted an alternative scheme to that promoted by Heathrow Airport Ltd (“HAL”) and adopted by the Government. Their scheme was for an Extended Northern Runway (“ENR”), extending the current northern runway so that it could effectively operate as two separate runways, with aeroplanes landing on one and taking off from the other. Hub owned the intellectual property rights to this scheme.

Hub 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 TFEU, as it facilitated an abuse or potential abuse of dominance by HAL. Hub 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.

The Court of Appeal (Lindblom LJ, Singh LJ and Haddon-Cave LJ) dismissed Hub’s appeal from the Divisional Court in its entirety. The Court found that Hub had enjoyed no legitimate expectation of the kind asserted. In respect of both the legitimate expectation claim and the competition law complaint, 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. In so doing, it rejected Hub’s case that statements made in Parliament by the then Secretary of State for Transport, Chris Grayling MP, showed that the most important reason for the rejection of the ENR scheme was the lack of a guarantee or assurance, dismissing Hub’s argument that to do so was in breach of Article IX of the Bill of Rights.

The Court of Appeal criticised the Divisional Court’s willingness to entertain the competition law complaint notwithstanding its immateriality. Nonetheless, it went on exceptionally to consider the complaint, and to overturn the Divisional Court’s conclusions insofar as they had been adverse to the Secretary of State and to HAL.

  • First, the Court held that Hub had not established that it was competing in a market for the provision of airport operation services, commenting that “Competition law is not concerned with regulating a contest between rival schemes to be chosen under a national planning policy.”
  • Secondly, the Court rejected the Divisional Court’s conclusion that HAL had “special or exclusive rights” within the meaning of Article 106 TFEU by virtue of its predecessor BAA’s former status as a state monopoly and/or the operation of the CAA licensing regime.
  • Thirdly, the Court held that Hub had failed to demonstrate that HAL was dominant in a relevant economic market in which it was competing, in the absence of any expert economic evidence to that effect.
  • Fourthly, the Court rejected Hub’s argument that the mere existence of a conflict of interest (such as a request to HAL that it guarantee Hub’s scheme before it could be selected) was sufficient to found a breach of Article 106 and 102 TFEU, absent any liability to distort competition.

The Court refused Hub permission to appeal.

The judgment is here.

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

Stefan Kuppen acts for Claimants in defending limitation challenge to DRAM follow-on damages claim

On 25 February 2020, Mr Justice Foxton handed down his judgment following the trial of a preliminary issue concerning limitation in a follow-on action arising out of the DRAM cartel, which had operated from 1998 to 2002. He found that the claims brought by Granville Technology Group (and the connected company VMT) were time-barred but that the claim brought by a third company – OTC – was not. All claimants were companies in liquidation.

The Defendants, Infineon Technologies AG and Micron Europe Ltd, were found to have participated in the cartel by a European Commission decision of May 2010. Granville, VMT and OTC were computer manufacturers who purchased DRAM at that time. In May 2016, just under six years from the date of the Commission’s decision, the liquidators filed claims for follow-on damages on behalf of the companies. The Defendants pleaded that the claims were time-barred and a preliminary issue on limitation was ordered.

The Claimants argued that s.32(1)(b) of the Limitation Act 1980 had the effect that in this case time did not start running until the announcement of the Commission’s decision. The Defendants argued that time started running far earlier because there was information in the public domain from 2002 about the US Department of Justice’s (“DOJ”) investigation into the DRAM cartel. The Claimants accepted that Granville and VMT (but not OTC) had actual knowledge of the DOJ investigation but denied that this sufficed to plead a standalone claim for breach of EU competition law in respect of purchases made in the UK.

Mr Justice Foxton found that a standalone claim against the Defendants in the EU could have been brought earlier, based on what was known and/or knowable about the Defendants’ conduct. As a result, he found that the claims brought by Granville and VMT were time-barred. However, Mr Justice Foxton found that OTC was in a different position because it had gone into liquidation prior to any reports into the DOJ investigation. He held that the fact of OTC’s liquidation affected the test for constructive knowledge. In particular, he rejected the suggestion that OTC should be assumed for the purposes of s.32(1)(b) to have the same knowledge as a trading computer manufacturer that was still involved in the acquisition of DRAM. Rather, he found that a reasonably diligent liquidator would not have been on notice of any facts triggering a need to investigate further. He therefore concluded that OTC’s claim was not time-barred.

The judgment is here.

Stefan Kuppen acted for the Claimants (instructed by Osborne Clarke).

Robert Palmer QC and Khatija Hafesji successfully defend MHRA in Francovich damages claim

Bioplus Life Sciences and Ors v Secretary of State for Health [2020] EWHC 329 (QB)

Bioplus Life Sciences claimed Francovich damages against the MHRA for losses suffered over a 9-year period, during which time the MHRA had regulated Bioplus’s drug Dolenio as a medicinal product requiring a marketing authorisation, but not competitors’ equivalent products (which were being sold as food supplements).

Bioplus had already established in a prior judicial review claim that this disparate treatment was unlawful, and now sought damages.

The matter was listed for a preliminary issue hearing on the sole question of whether the Medicinal Products Directive imposing regulatory and supervisory obligations on Member States entailed the grant of rights to individuals such as the Claimant, so as to provide the necessary foundation for a Francovich claim. Mrs Justice Eady held that they did not, and therefore dismissed the damages claim in its entirety. She found that the claim went no further than establishing the Claimants’ interest in the Defendant’s compliance with its obligations under the Directive (an interest which had given them standing to bring their successful judicial review proceedings), but otherwise the Claimants did not benefit from any individual right to be protected against the consequences of the MHRA’s failure to classify products materially identical to Dolenio as medicinal products.

Robert Palmer QC and Khatija Hafesji acted for the MHRA.

The judgment is here.

Meredith Pickford QC and David Gregory appear for Google in the Google Shopping appeal

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.

MIB v Lewis – Supreme Court refuses permission for MIB to appeal. Philip Moser QC acts for Respondent

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.

Ian Wise QC acts for Harry Miller, as judge rules police’s “Orwellian” action disproportionately interfered with Miller’s right of freedom of expression

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.

Khatija Hafesji successfully brings a notable retrospective section 20 Children Act judicial review claim

R (AB) v Ealing LBC [2019] EWHC 3351 (Admin) is only the second case to successfully challenge a refusal to grant retrospective section 20 status after the judgment of the Court of Appeal in GE (Eritrea) v the Secretary of State for the Home Department [2014] EWCA Civ 1490, and is the very first to do so more than 3 months after the initial decision not to accommodate a child under section 20 was taken. The Court (Matthew Gullick, sitting as a Deputy High Court Judge) found that Ealing’s assessment of AB’s needs was unlawful, and its subsequent decision not to treat her as if she were a former relevant child was also unlawful.

AB had a long history of contact with social services, due to her status as a young carer for her mother and siblings and having suffered and witnessed domestic violence at home. AB ran away from home at the age of 17, however Ealing social services refused to accommodate her and insisted that she return home. AB instead stayed in a refuge for women fleeing domestic violence. Upon turning 18, AB claimed that she ought to have been accommodated when she initially approached Ealing for assistance and – had she been – she would now be entitled to the rights and entitlements conferred on young people leaving care. She asked Ealing to exercise its discretion to remedy this injustice. Ealing claimed that its initial assessment that she did not require accommodation was sound, and that it would not exercise its discretion. The Court quashed that decision and the matter was remitted to Ealing. On 30th January 2020, Ealing confirmed that it would treat AB as a former relevant child.

The Court’s consideration of the timing issue is of significance. The Court accepted AB’s argument that the decision under challenge was the decision not to exercise the discretion rather than the underlying assessment and therefore the claim was in time. The Court thereby rejected the Ealing’s argument that such an approach undermines the public interest in the finality of decision-making and permits challenges many months or years after the relevant assessment.

Following written submissions, AB was also awarded 100% of her costs in a fully-reasoned judgment which highlights the importance of well-timed settlement offers in judicial review claims.

Khatija Hafesji acted as sole counsel for the successful Claimant. She was instructed by Lois Clifton, Fiona Couzens, and Dan Rosenberg of Simpson Millar solicitors.

A copy of the judgment can be read here.

Gerry Facenna and Nikolaus Grubeck successfully defend BSI in judicial review claim

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

Court of Appeal rules prisoner’s claim hearing via video-link does not breach fair trial rights – Eric Metcalfe acts for Respondents

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.