Article 50 challenges in Court today

Today sees the start of the hearing in the High Court of the so-called “Article 50 challenges” – the judicial review proceedings brought by two claimants (and supported by several groups of interveners) which argue that a Parliamentary vote is needed before the Article 50 process for Britain leaving the EU can be triggered. The hearing will not finish today but will continue on 17th and 18th October.

The Court

The challenges are being heard not by a single High Court Judge, as most judicial reviews are, but by a very high-powered Divisional Court, consisting of the Lord Chief Justice (Lord Thomas), the Master of the Rolls (Sir Terence Etherton) and Lord Justice Sales. A “leapfrog” appeal to the Supreme Court (i.e. direct to the Supreme Court and bypassing the Court of Appeal) has already been arranged for December 2016.

The arguments

The Government’s position is that Article 50 can be triggered using prerogative powers – meaning essentially that this is a matter for the executive alone.

The Claimants dispute this, and raise a number of issues, including:

  • Can the Government notify the decision to withdraw pursuant to royal prerogative powers without Parliamentary approval or are those historic powers limited? In particular:
    • Has any executive royal prerogative power to do so been removed by legislation, in particular constitutional statutes such as the European Communities Act 1972, the Bill of Rights 1689, the Acts of Union and the statutes creating the devolution settlements for Northern Ireland, Scotland and Wales?
    • Does the royal prerogative extend to allowing the Government to remove fundamental citizenship rights derived from EU law without Parliamentary authority?
  • Would any exercise of the prerogative be abusive by undermining Parliamentary Sovereignty, the proper role of the Executive in the constitution, and/or the rule of law?

There is also a dispute about whether constitutionally-valid decision has already been made for the UK to withdraw from the EU.

If you are interested in the detail of the arguments, the principal parties’ skeleton arguments can be found here:

The Government’s skeleton argument

The People’s Challenge clarification note

The People’s Challenge skeleton argument

Lead claimant skeleton argument

Three of our colleagues are involved: Anneli Howard (together with Lord Pannick QC, Rhodri Thompson QC and Tom Hickman) for the lead Claimant, and Gerry Facenna QC and Jack Williams (together with Helen Mountfield QC and Tim Johnston) for the Peoples Challenge interested party.


Article 50 litigation: Government’s skeleton argument published

Today the Government has published its full skeleton argument in the Article 50 litigation to be heard in the High Court on 13, 17 and (now also) 18 October 2016. The Government’s full skeleton argument can be found here.

The People’s Challenge Interested Parties have also filed in response a note clarifying a mistaken assertion in the Government’s skeleton. This clarification note can be found here.

Further documents in relation to the litigation (including the skeleton argument on behalf of the People’s Challenge Interested Parties) can be found here.

The People’s Challenge Interested Parties are a number of ordinary UK and EU citizens living in England, Gibraltar, Northern Ireland, Scotland and Wales, as well as British citizens resident in France. They are supported by funding raised through the crowdfunding platform, Crowdjustice.

Gerry Facenna QC and Jack Williams are instructed by Bindmans LLP on behalf of the People’s Challenge Interested Parties. Anneli Howard is also acting in the litigation on behalf of the claimant Gina Miller.

Gerry Facenna QC, Daisy Mackersie and David Gregory successfully defend Environment Agency’s decision on water abstraction at Catfield Fen under the Habitats Directive

Monckton counsel have successfully defended the Environment Agency’s decision not to renew water abstraction licences near to Catfield Fen in Norfolk.  The applications were to allow the continued use of groundwater for agricultural purposes from existing abstraction sites near to a Special Area of Conservation protected by the EU Habitats Directive.  Catfield Fen contains calcareous fen (a priority habitat under the Habitats Directive) as well as a large population of the rare fen orchid and protected water beetles.

The decision of the Environment Agency to refuse the licences was considered at a three week planning inquiry held in Norwich in Spring 2016.  At the inquiry the Environment Agency, supported by Natural England and the RSPB, presented evidence of rapid ecological change on site suggestive of deteriorating water chemistry which was potentially a result of the water abstractions. By contrast the appellant contended that, applying the test under the Habitats Directive, it was beyond reasonable scientific doubt that the water abstractions were not responsible for any ecological change.

Having considered detailed expert evidence on fen ecology, hydrogeology and water chemistry, Elizabeth Hill BSc(Hons), BPhil, MRTPI, the Inspector appointed by the Secretary of State for Environment, Food and Rural Affairs, dismissed the appeals, finding: ‘it cannot be concluded beyond reasonable scientific doubt that abstraction under the licences would not have an adverse effect on the integrity of sites protected by European law, namely, the Broads SAC.’ She also rejected arguments that the licences should be granted in any event due to “imperative reasons of overriding public interest”, namely the impact of refusing the licences on the economy.

The Planning Inspector’s decision can be read here.

The Environment Agency was represented by Gerry Facenna QC, Daisy Mackersie and David Gregory.

General Court upholds Commission ”Pay for Delay” decision in the Lundbeck case

The General Court of the EU yesterday dismissed appeals by Lundbeck, the leading pharmaceutical company, and a number of manufacturers of generic products, against a Commission decision finding that they were party to agreements that infringed EU competition rules and imposing fines.

The case concerned citalopram, a widely-used treatment for mental health conditions.  The agreements were entered into at a time when various generic manufacturers had been taking steps to start supplying citalopram, but Lundbeck had also launched, or was threatening to launch, patent infringement proceedings against those manufacturers in the UK and EEA.  Under the agreements, the generic manufacturers received payment from Lundbeck and also agreed not to supply citalopram for a period of time.

The General Court dismissed the companies’ claim that, because of the position in relation to patents, the generic manufacturers could not be regarded as potential competitors of Lundbeck.  It also rejected the companies’ argument that, because Lundbeck had a patent claim, an agreement not to sell citalopram in potential breach of that claimed patent could not be regarded as an ‘object restriction’ for the purposes of Article 101(1) of the Treaty on the Functioning of the EU.  It agreed with the Commission that, despite the patent claims: (i) the generic companies should be regarded as potential entrants, and (ii) the agreement was a restriction by object.

The case is the first judgment by the European Courts on the “pay for delay” issue, and is a very important decision for the pharmaceutical sector, as well as being the latest word on the category of object restrictions.

A link to the judgments is here.

Please click here to view the full case note.

George Peretz QC acted for the European Commission in T-467/13 Arrow v Commission; Ben Rayment acted for the European Commission in T-471/13 Xellia and Alpharma v Commission; Ronit Kreisberger and Ligia Osepciu acted for Merck in T-470/13 Merck KGaA v Commission; James Bourke acted for the European Commission in Case T-472/13 Lundbeck v Commission, Case T-469/13 Generics (UK) v Commission and Case T-470/13 Merck KGaA v Commission.

Monckton Chambers secures landmark victory in landfill tax judicial review

On 25 July 2016 Mr Justice Nugee dismissed claims for judicial review brought by the Veolia and Viridor group of companies in relation to HMRC’s demands for very substantial payments of landfill tax. The claims were brought on the basis that Revenue and Customs Brief 58/08  dated 22 December 2008 gave rise to a legitimate expectation that such demands would not be made. Other major landfill site operators have similar claims which have been stayed. Mr Justice Nugee accepted the case advanced by Melanie Hall QC, Brendan McGurk and David Gregory on behalf of HMRC that the Brief did not give rise to any material legitimate expectation. He also accepted their argument that the Veolia companies had not been the victim of unequal treatment, relative to their competitors. The detailed judgment contains a detailed summary of the relevant principles in relation to legitimate expectation and unequal treatment and related principles of administrative law.

Labour Party leadership election – Nikolaus Grubeck act in successful challenge to allow new members’ right to vote

Stephen Cragg QC and Nikolaus Grubeck, instructed by Kate Harrison at Harrison Grant, acted for Labour Party members excluded from an automatic right to vote in the forthcoming leadership election, on the basis that they have not been members of the Party for more than six months (Evangelou and others v The Labour Party).

In the High Court of Justice on the 4th August Mr Justice Hickinbottom decided that, under the Labour Party rules, the Labour Party’s National Executive Committee does not have the power to disenfranchise 150,000 members, including the claimants.

This means that all members who joined the party before 12th July 2016 have equal rights to vote in the leadership election.

Imogen Proud was instructed for hand down and consequentials.

A copy of the judgment is available here.

See The Guardian website.

Brendan McGurk successfully defends MoD from civil claims arising out of the UK’s role in Kosovo

The High Court has determined a series of preliminary issues arising out of claims brought by three individuals whose family members were murdered by unknown third parties in the immediate aftermath of the withdrawal of Slobodan Milosovic’s forces from Kosovo in June 1999. Milosovic’s withdrawal followed Nato operations to which the UK contributed. Following the promulgation of UN Security Council Resolution 1244, the UK provided forces to the Kosovo Force (or KFOR) which was given various security taskings. The murders took place within the area for which UK forces had lead responsibility. The Claimants brought (i) claims under the Human Rights Act and (ii) tort claims under local Kosovan law in the Queen’s Bench Division. They were seeking, amongst other things, the establishment of a public enquiry in relation to the alleged breach of the investigative obligations alleged to have arisen under Articles 2 and 3 ECHR, and damages. Preliminary issues were heard on, amongst other issues, (i) whether the alleged acts or omissions of UK forces were to be attributed to the UK or the UN; (ii) whether the claimants where within the jurisdiction of the UK for the purposes of Article 1 of the ECHR; (iii) whether an investigative obligation arose or continued under Articles 2 or 3 of the ECHR; and (iv) whether the UK could avail of any operative immunity in relation to such claims. In a long and detailed judgment, Irwin J determined all of the preliminary issues in favour of the MoD. The Claims will therefore be dismissed.

Brendan McGurk was led by James Eadie QC. The judgment, whose neutral citation is [2016] EWHC 2034 (QB), can be found here.

General Court rejects John Bredenkamp’s damages claim

Case T-66/14 Bredenkamp & Ors v Council, 21st July 2016

The General Court of the CJEU has rejected an application for damages brought by Zimbabwean businessman John Bredenkamp, and 3 companies owned by him, for damages for loss caused by their listing on the EU’s Zimbabwe sanctions list.

The court held that the applicants’ listing was not unlawful wherefore the applicants were not entitled to the damages claimed, so that the Court did not go on to consider the arguments on causation and loss. The Court found that listing a businessman on the basis of strong ties to the Government was a sufficiently clear statement of reasons, with a valid legal basis. Although the Council had not communicated the evidence forming the basis for the designation, the applicants had been given the bulk of the evidence justifying their listing, albeit by way of obtaining them in national proceedings against the UK government and the Court found that this would not therefore have made any difference to the applicants’ rights of defence.

A link to the judgment is here.

Philip Moser QC acted for Mr Bredenkamp and his companies

High Court holds that Napp Pharmaceuticals was not entitled to a period of data exclusivity for its analgesic skin patch under the Article 10(3) hybrid-abridged procedure

In a judgment handed down today, Mrs Justice Whipple rejected an attempt by Napp to assert a period of data exclusivity for “bridging data” provided by it in support of its application for a marketing authorisation (MA) for its product BuTrans®/Norspan® under the “hybrid-abridged” procedure laid down in Article 10(3) of the Medicines Directive (Directive 2001/83).

The “hybrid-abridged” procedure can be used where a manufacturer seeks to obtain an MA for a product that differs in certain respects, such as in the route of administration or therapeutic indication, from another manufacturer’s product that already has an MA (known as the “reference medicinal product” or “RMP”). The RMP in this case was an analgesic developed by another manufacturer in the form of a pill placed under the tongue: Napp then developed BuTrans®, which used the same analgesic in the form of a skin patch. Under the hybrid-abridged procedure, which requires the provision of “appropriate” pre-clinical tests and trials, it could and did obtain an MA by relying on the original documentation for the RMP combined with “bridging data” in the form of test results showing that the skin patch method was safe and effective.

Some 11 years later, Sandoz applied for MAs in a number of EU countries, including the UK, for its own analgesic skin patch. In its application, it referred to the RMP, the bridging data provided by Napp for BuTrans® and to its own studies demonstrating bioequivalence between its product and BuTrans®.

The UK Medical and Healthcare Products Regulatory Agency (“MHRA”), along with the equivalent authorities in other EU Member States, granted Sandoz an MA on that basis. Napp sought judicial review of the MHRA’s grant of an MA to Sandoz, claiming that the Medicines Directive did not permit the MHRA, in assessing Sandoz’s application for MAs, to allow it to rely on the “bridging data” provided by Napp. Napp also brought equivalent proceedings in other EU countries. At the hearing, Napp sought a reference for a preliminary ruling to the Court of Justice of the EU, arguing that there was a “lacuna” in the Directive to the extent that it did not lay down a period of exclusivity for “bridging data”: it pointed out that Article 10(1) provided for a period of exclusivity for the manufacturer of the RMP so as to prevent generic manufacturers relying on those data to secure an MA for their own product.

Whipple J observed that, as a matter of language, the reference in Article 10(3) to “appropriate” pre-clinical tests or clinical trials did not preclude the MHRA from accepting as “appropriate the data provided by Sandoz, namely the bridging data originally provided by Napp for BuTrans® together with Sandoz’s own studies demonstrating bioequivalence between its product and BuTrans®. That approach did not conflict with the purpose of the Directive of ensuring that medicines were safe and effective. Moreover, the Court of Justice’s case-law had refused to allow periods of exclusivity where the company in Napp’s position also held the MA for the RMP – had Napp also held the MA for the RMP in this case, BuTrans® would, under Article 6(1), have been held to be a “line extension” of the RMP and would not have had any additional period of exclusivity beyond that granted in relation to the RMP under Article 10(1): but there could be no reason for distinguishing the case where Napp held the MA for the RMP from the actual case, where it did not. She further noted that the Commission had expressed the same view in its Notice to Applicants. So she dismissed Napp’s challenge, holding that the MHRA had been correct to grant the MA, and refused to make a reference to the Court of Justice.

George Peretz QC acted for the MHRA.

To read the judgment, please click here.

Further Court of Appeal success for Paul Harris QC and Rob Williams in Copper Fittings contribution claim

The Court of Appeal has dismissed Delta’s appeal against the ruling of Mrs Justice Rose last June, so that Delta is precluded from resisting IMI’s contribution claim on the basis of a limitation defence. The judgment is the latest in a series of ground breaking rulings arising from the Copper Tubes and Copper Fittings claims, in which IMI has now twice been successful in the Court of Appeal.

The judgment concerns section 1(4) of the Civil Liability (Contribution) Act 1978, which applies where the main claim against the contribution claimant (in this case, Travis Perkins’s claim against IMI) has been the subject of a bona fide settlement. Under section 1(4), the liability of the contribution claimant (IMI) to the main claimant (Travis Perkins) cannot be re-opened by the contribution defendant (Delta) if the conditions of a proviso are satisfied – that is, if IMI would have been liable “assuming that the factual basis of the claim against him could be established”. Where section 1(4) applies, the contribution defendant cannot resist the contribution claim on the basis that the contribution claimant was never liable in the first place.

In the present case, Delta sought to resist IMI’s claim for contribution on the basis that the main claim against IMI by Travis Perkins was time barred.   Rose J rejected that argument, holding that, under section 1(4), Travis Perkins’ plea in Reply that the cartel was deliberately concealed is assumed to be true; as a result the limitation argument failed.

The Court of Appeal upheld a different interpretation of section 1(4), advanced by IMI, that the proviso only involves an inquiry into whether the Particulars of Claim disclose a cause of action. This new interpretation offers settling parties greater protection from attempts by the contribution defendant to re-open the claim which has been settled. However, the Court also upheld Rose J’s application of the section as a secondary and alternative view.

Please click to view a copy of the IMI PLC & anr -v- Delta LTD & ors judgment.

Paul Harris QC and Rob Williams acted for the successful party IMI.