Julie Hunter v Amazon.com, Inc. & Others; Robert Hammond v Amazon.com, Inc. & Others, CAT decision of 5 February 2024 (Sir Marcus Smith P., Charles Bankes and Carole Begent)

This was the first disputed carriage dispute to come before the Competition Appeal Tribunal (‘CAT’) at the pre-certification stage. The dispute was between two proposed class representatives (‘PCRs’), Ms Julie Hunter and Mr Robert Hammond respectively, each seeking to represent millions of UK consumers in relation to a billion pound opt out class action against Amazon. The CAT has ruled in favour of the application brought by consumer champion Robert Hammond, represented by Philip Moser KC and Ben Rayment of Monckton Chambers.

Mr Hammond’s claim alleges that in recommending featured product offers on its UK marketplace in the so called ‘buy box’, Amazon used a discriminatory algorithm that favoured sales by Amazon or suppliers that use Amazon’s fulfilment service which caused purchase prices to be higher than they would otherwise have been. The operation of the buy box has been the subject of concerns raised by competition authorities including the EU Commission and the UK’s Competition and Markets Authority.

The CAT considered that both PCRs had brought well thought out applications but that the methodology used by Hammond’s expert was the most suitable. Accordingly, Mr Hammond’s claim will now proceed and Ms Hunter’s claim is stayed. Having overcome this important first hurdle, the case now moves on to another hearing at which the CAT will hear from the PCR and Amazon as to whether the action meets the criteria for certification to be brought on a collective basis.

Philip Moser KC and Ben Rayment of Monckton Chambers represent Mr Hammond, instructed by Charles Lyndon and Hagens Berman EMEA LLP.

Jon Turner KC represents Amazon.com, Inc., instructed by Herbert Smith Freehills LLP.

A link to the judgment is here.

The Namibian Supreme Court has summarily dismissed a challenge to the enforcement of a final arbitral award in a long-running commercial arbitration involving Skeleton Coast Trawling (Pty) Ltd, an indirect subsidiary of Spanish multinational, Nueva Pescanova S.A., and a Namibian company, Nautilus Fishing Industries (Pty) Ltd.

The arbitration, conducted in Namibia, concerned a claim by Nautilus that Skeleton Coast failed to account to it for the profits of the parties’ joint venture spanning more than a decade. In the arbitration proceedings Nautilus succeeded in establishing that Skeleton Coast was under a fiduciary duty to account for the profits of the parties’ joint venture, and that Skeleton Coast had failed to do so. Skeleton Coast was ordered to pay Nautilus its share of the profits of the joint venture based on a proper accounting conducted by the parties’ expert witnesses.

Skeleton Coast thereafter refused to comply with the arbitral award and Nautilus turned to the Namibian High Court to seek its enforcement. Skeleton Coast unsuccessfully challenged the validity and enforceability of the arbitral award before the High Court on various grounds, including attacking the arbitrator’s jurisdiction, and contending that the enforcement of the award would be contrary to public policy.

In proceedings for the summary dismissal of Skeleton Coast’s appeal (conducted in terms of the Supreme Court rules which provides for the summary dismissal of an appeal that is frivolous, vexatious or without any merit), the Supreme Court affirmed the principle that courts will only refuse to enforce arbitral awards on limited grounds, none of which had been established by Skeleton Coast.

Luke Kelly acted for Nautilus in the arbitration and in proceedings before the Namibian Supreme Court. He was instructed by AngulaCo (Windhoek) in the arbitration proceedings and Koep Attorneys (Windhoek) in the proceedings before the Supreme Court.

A copy of the judgment is here.

Braceurself v NHS England judgment, Court of Appeal.

In a public procurement damages claim the claimant must prove not only a breach of the Public Contract Regulations 2015 but also that the breach was ‘sufficiently serious’ to warrant damages (generally called Francovich damages). Braceurself was a case where the lower court held that a breach was established which had led (albeit narrowly) to the award of the contract to the wrong bidder in a two-bidder race, in circumstances where a suspension on contract-making had earlier been lifted. Nonetheless, the breach was held to be insufficiently serious to merit damages.

On appeal, the Court of Appeal (leading judgment by Coulson LJ) has upheld the lower court’s ruling on seriousness and gone further, taking the rare step of finding that the trial judge was wrong on the facts and that more probably than not there had been no breach in any event.

The three main Francovich issues were: (1) whether, following the judgment of Fraser J in Energy Solutions [2016] EWHC 3326 (TCC), the nature of the breach in this case was sufficiently serious without more; (2) if not, whether the Francovich balancing exercise meant it was sufficiently serious, taking into account all relevant matters; query whether a ‘manifest error’ can ever be excusable, and (3) whether the principle of effectiveness required a remedy in this case.

The Court of Appeal’s answers were: (1) no; a multifactorial assessment had to be carried out in each case; Fraser J’s judgment in Energy Solutions ought to be read as saying the same, alternatively had gone too far on that point; (2) no; the judge carried out the balancing exercise correctly; disregarding or rendering neutral Francovich factors such as excusability or state of mind would be contrary to authority, particularly the judgment of Lord Clyde in Factortame when properly considered; also, a manifest error may be excusable, and (3) the principle of effectiveness had no further or separate role to play in this case; the fact that the outcome of the interim hearing on suspension and the final hearing on relief may differ lies in the nature of litigation (see the CJEU in C-568/08 Spijker).

Further, applying Volpi v Volpi [2022] EWCA Civ 464, the Court held that the trial judge had been wrong to find a manifest error on the evidence around the proposed use of a ‘stair climber’ in the procurement. It was more likely than not that the procurement assessors’ scores would have been left unchanged.

Philip Moser KC acted for the Appellant on the appeal, instructed by Acuity Law.

A copy of the judgment is here.

Today six Monckton barristers representing various parties head to the CAT for the first day of the first opt out competition trial. The claim, which is brought on behalf of over 3 million BT customers, alleges that BT charged excessive prices in relation to “standalone” fixed voice services (covering line rental and calls), and that this constituted an abuse of a dominant position contrary to section 18 of the Competition Act 1998.

This case is the very first opt-out competition law class action to reach trial since the introduction of the new regime for such claims under the Consumer Rights Act 2015. As such it will be highly significant for the development of the collective proceedings’ regime in the UK. The Tribunal is set to address a range of important and novel issues in the competition sphere, including the use of behavioural economics in competition law claims, and the proper approach to the quantification of aggregate damages for an opt-out consumer class.

Ronit Kreisberger KC, Michael Armitage and Jack Williams are instructed by Mishcon De Reya on behalf of the Class Representative, Justin Le Patourel.

Daniel Beard KC, Daisy Mackersie and Natalie Nguyen are instructed by Simmons and Simmons LLP for the Defendant, BT.

In 2022, Daniel Beard K.C. and Jack Williams acted for Intel before the General Court, securing the annulment of a €1.06 billion fine for an alleged abuse of dominance. See here.

The Commission appealed to the CJEU against that decision.

Today, Advocate General Medina has advised the Court of Justice (CJEU) to dismiss the European Commission’s appeal against that General Court judgment. At the Court’s request, the AG focusses upon two of the six grounds of appeal. Those two grounds alleged that the General Court had committed a series of errors and infringed the Commission’s rights of defence in the context of its examination of the as-efficient-competitor (AEC) test regarding two customer accounts.

In particular, AG Medina concludes that:

• None of the Commission’s submissions are capable of calling into question the General Court’s conclusion that the Commission’s decision failed to demonstrate the foreclosure effect of certain rebates granted by Intel
• The General Court did not commit any error by concluding that the Commission had proceeded on the basis of an assumption which was contrary to the foundation of the AEC test set out in the Commission’s decision.

Daniel and Jack act for Intel on the appeal and are also instructed by Intel in its interest claim, arising from the Commission’s failure to pay default interest following the General Court’s annulment of the fine. See here.

The Lawyer’s “Top 20 cases of 2024” has been published, highlighting the biggest disputes of the year based on profile and value. Six members at Monckton Chambers feature in one of these cases: the very first opt-out competition law class action to reach trial since the introduction of the new regime under the Consumer Rights Act 2015:

• Justin le Patourel v BT – Competition Appeals Tribunal, 29 January, seven weeks.

Ronit Kreisberger KC, Michael Armitage and Jack Williams are instructed by Mishcon De Reya partner Sarah Houghton and managing associate Gwen Ballin-Reeler on behalf of the Class Representative, Justin Le Patourel.

Daniel Beard KC, Daisy Mackersie, Natalie Nguyen are instructed by Simmons and Simmons LLP partners Patrick Boylan and Satyen Dhana and managing associate Eleanore Di Claudio for the Defendant, BT.

The Competition Appeal Tribunal has handed down judgment in relation to an application under section 179 of the Enterprise Act 2002 by Motorola for review of the Competition and Markets Authority’s (“CMA”) Final Report on “Mobile radio network services” dated 5 April 2023.

The Decision concerns the supply of communications network services for emergency personnel via the “Airwave network”. It determined that there are features of the relevant market which cause an “adverse effect on competition” (“AEC”) within the meaning of section 134 of the Act, and imposed a charge control remedy that will reduce the price payable by the Home Office and other governmental departments for the services below the contractually agreed price.

The Home Office is the main contracting party with Motorola and the primary customer for the supply of the relevant network services for public safety (and ancillary services) in Great Britain.

Motorola sought an Order that the Decision be quashed and remitted to the CMA on the following grounds:

• Ground 1: The CMA erred in its approach when finding that there was an AEC, and failed to take its own findings on competitive constraints into account when conducting its competitive assessment.
• Ground 2: The CMA relied on an unlawful “profitability analysis” in reaching its conclusions on both the existence of an AEC and its proposed remedy.

The Tribunal dismissed both grounds of appeal, holding that:

• Ground 1: There had been no failure by the CMA to take into account a relevant consideration, nor was there any inconsistency between its findings on market definition and those made in its competitive assessment.
• Ground 2: The CMA was entitled to a degree of latitude in how it approached its profitability assessment; the approach it adopted was not irrational or inconsistent.

Anneli Howard KC, Jack Williams and Suzanne Rab from Serle Court instructed by TLT LLP acted for the Home Office, intervening in support of the CMA’s Decision. Josh Holmes KC acted for the CMA at an earlier stage of the proceedings.

In a historic achievement for animal welfare, Save The Asian Elephants (“STAE”) has succeeded in its mission to prohibit the domestic promotion of brutal animal-related tourism practices worldwide. The Animals (Low-Welfare Activities Abroad) Act 2023 aims to stop the advertising and sale of unethical tourist activities involving animals abroad.

Duncan McNair, CEO of STAE and City law firm solicitor, expressed his gratitude to the millions supporting the campaign, calling the law a “momentous day for animals everywhere.” He emphasised the Act’s potential to protect endangered species globally, urging a transition from harmful practices to ethical sanctuaries and wildlife reserves. The ultimate goal is to redirect the market toward ethical tourism.

The Act marks a significant step towards ending the suffering of the millions of animals used for global animal entertainment. Travel companies will be prohibited from advertising and selling tickets for certain low welfare activities abroad to customers in England and Northern Ireland. STAE identified over 1,200 UK companies profiting from advertising nearly 300 brutal elephant venues alone. Duncan McNair and STAE’s tireless advocacy have resulted in a significant advance towards a future where animals are spared from the cruelty of exploitative tourism practices. The measures, resolutely implemented and enforced, will help protect endangered and vulnerable species across the world from extreme exploitation, harm and death.

STAE’s eight-year-long campaign has resulted in pioneering legislation that can be considered a world first, with the law having a global reach providing hope for numerous iconic species, not only Asian elephants, suffering for the sake of tourism worldwide. Other countries may now consider following the lead of this carefully drafted legislation, which received close Parliamentary scrutiny.

DEFRA will now compile a list of prohibited activities, with STAE coordinating efforts to present evidence.

In an example of how the instruction of counsel can assist in the Parliamentary process, Ian Rogers KC was instructed by STAE to advise and prepare materials on the Bill during its passage through Parliament, dealing with the legal issues which had arisen in Parliamentary debates.

A link to the Animals (Low-Welfare Activities Abroad) Act 2023 can be found here.

The First-tier Tribunal (Tax) has released its decision allowing the appeal of Bolt against a decision of HMRC that ride-hailing services do not fall within the Tour Operators Margin Scheme (“TOMS”). The Tribunal has ruled that the single supply of ride-hailing falls within TOMS.

Valentina and Jenn were instructed by Deloitte LLP. A copy of the decision is available here.

 

 

The Court of Appeal has handed down judgment in R (the3million and Open Rights Group) v Secretary of State for the Home Department and Secretary of State for Science, Innovation and Technology [2023] EWCA Civ 1474. It dismissed the Defendants’ appeal against the judgment of Saini J in [2023] EWHC 713 (Admin), ruling that the Government’s second attempt to produce an immigration exemption from certain rights of data subjects conferred by the United Kingdom General Data Protection Regulation was unlawful.

The Court of Appeal had previously held that the first attempt to introduce an Immigration Exemption was unlawful ([2021] EWCA Civ 800), but gave the Government time to remedy the defects by way of secondary legislation. The statutory instrument seeking to do so was again subject to challenge.

In the present proceedings, the Court of Appeal concluded that the revised Immigration Exemption is still incompatible with Article 23 of the UK GDPR and therefore unlawful.

The judgment is available here.

Nikolaus Grubeck, instructed by Leigh Day Solicitors, acted for the successful Claimants / Respondents.

Julianne Kerr Morrison also acted in the successful challenge to the earlier version of immigration exemption.