Paul Harris QC leads for claimants in Merricks v Mastercard: Collective proceedings in competition law revitalised by Court of Appeal

Walter Hugh Merricks CBE v Mastercard Inc

On 16 April 2019, the Court of Appeal allowed Mr Merrick’s appeal from the Competition Appeal Tribunal’s (“CAT”) refusal to grant a collective proceedings order (“CPO”). The CAT’s order is, accordingly, set aside and the application for certification is remitted to the CAT for a re-hearing.

Paul Harris QC leads on behalf of the claimants in Walter Hugh Merricks CBE v Mastercard Inc. instructed by Quinn Emanuel, lead partner, Boris Bronfentrinker.

Click here for the judgment.

The case has been covered by the press including The Times, The Guardian, The Telegraph, BBC and The Lawyer.

A case note, written by Jack Williams can be viewed here.

High Court rules on binding findings in Servier

Secretary of State for Health and others v Servier Laboratories Limited [2019] EWHC 1004 (Ch)

The High Court has today handed down judgment in Secretary of State for Health and others v Servier Laboratories Limited [2019] EWHC 1004 (Ch). The High Court rejected Servier’s arguments that findings of fact made by the General Court in its judgment in Servier v Commission Case T-691/14 handed down on 12 December 2018 would be binding in the preliminary issues trial in the High Court.

Of those propositions put forward by Servier which properly reflected the General Court’s findings of fact, none were ‘res judicata’ as a matter of EU law. Res judicata only extends to factual findings which are inseparable from, and necessary to explain, the operative part of the judgment. The Claimants are therefore not precluded in the preliminary issues trial from adducing their own evidence and arguing that the court should make contrary factual findings.

The Court also rejected Servier’s arguments that it was an abuse of process for the Claimants to advance arguments and adduce evidence contrary to Servier’s propositions.

Jon Turner QC and Philip Woolfe act for the English Claimants, Josh Holmes QC and Laura John act for the Welsh Claimants, and Daniel Beard QC, Julian Gregory and Alexandra Littlewood act for the Scottish and Northern Irish Claimants.

High Court rules Sussex Police’s unlawful disclosure put vulnerable teenager ‘at greater risk’

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 withdraws proposals for special school closure

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.

Wiltshire Council’s news story is available here. 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 BBC news story on the case is available here.

High Court Grants Declaratory Relief regarding imports from Morocco relating to Western Sahara

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)

High Court rejects attempt to refer question on data exclusivity periods under the Medicines Directive to the ECJ

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: The Supreme Court overturns Court of Appeal judgment and paves the way for commercial higher education providers to claim VAT exemption

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.

Brexit ferry case settled

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.

Monckton members act in another successful challenge to local authority cuts

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)

FCA issues its first decision under competition law

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.