In a judgment handed down this week, the Employment Tribunal dismissed all test claims brought by five firefighters alleging that transitional arrangements included in the Firefighters’ Pension Scheme 2015 are discriminatory.

The changes to firefighters’ pensions were part of the wide-ranging public sector pension reforms brought in after the 2011 Hutton Report concluded that since people are living longer, public sector pensions needed to be revised to make them sustainable for the taxpayer.

However, the claimants’ challenge was only to the transitional arrangements in the new pension scheme, whereby those firefighters within 10 years of pension age are protected by being able to remain in their existing pension scheme. There are also a further four years of tapered protection. It was alleged that such arrangements were directly discriminatory on grounds of age.

The Defendants – four Fire and Rescue Authorities, the Home Office and the Welsh Ministers – accepted that the transitional arrangements treat younger firefighters less favourably on the grounds of age, but argued that this is justified since it is a proportionate means of achieving a legitimate aim. The aim is to protect those closest to pension age from the effects of pension reform, given that they would have less time in which to rearrange their affairs before retirement, by making any necessary financial or lifestyle changes.

Judge Lewzey (sitting alone) accepted that this aim was legitimate, and that the treatment of the claimants was a proportionate means of achieving it, and accordingly the claims of direct age discrimination failed. The Tribunal also accepted that those closest to retirement have a greater legitimate expectation that their pension entitlements will not change significantly.

The claimants also brought claims for equal pay and claims of indirect discrimination on grounds of sex and/or race, as female and BME firefighters are disproportionately likely to be in the unprotected group. Male firefighters also brought ‘piggy-back’ equal pay claims. All claims failed.

Behind the five test claimants were over 5000 claims in England and Wales.

Similar claims had been successfully pursued in McCloud & Others v Ministry of Justice in relation to the transitional protection provided within the judges’ pension scheme. Judge Lewzey noted that the McCloud judgment of 16 January 2017 was not binding upon the Tribunal and that she must decide the firefighters’ case on the basis of the evidence and submissions she heard, and in those circumstances she disregarded the McCloud decision in reaching her conclusions.

Raymond Hill and Imogen Proud acted for the Home Office and the Welsh Ministers.

The High Court has heard a challenge brought by Campaign Against Arms Trade (“CAAT”) in respect of the granting of licences by the United Kingdom in respect of the sale of arms to Saudi Arabia for use in its military operations in Yemen.

Yemen is presently engulfed in a bloody civil war in which  Houthi forces loyal to former president Ali Abdullah Saleh have launched an insurrection against the government  of Abdrabbuh Mansur Hadi.  A coalition of Gulf states is conducting air and ground operations in Yemen in support of the Yemeni government. Grave concerns have been raised about the conduct of these military operations. A wide range of international bodies, including the UN Security Council’s Panel of Experts on Yemen has concluded that the Coalition’s air strikes in Yemen are likely to have involved serious violations of the laws of war, including war crimes and possibly crimes against humanity.

CAAT seeks an injunction to prevent the licensing of further military equipment on grounds that there is a clear risk that such equipment might be used in serious violations of international humanitarian law.

Conor McCarthy, instructed by Leigh Day, is junior counsel for the Claimant.

Nikolaus Grubeck, instructed by Debevoise and Plimpton, is junior counsel in the proceedings for a coalition of intervenors (Human Rights Watch, Amnesty International and Rights Watch UK).

In a judgment in a test case handed down today, the Court of Appeal upheld tribunal judgments awarding a boy (known as “John”) £120,000 under the Vaccine Damages Payments Act 1979 (“the Act”).

It was agreed that John’s narcolepsy with cataplexy was caused by his vaccination against H1N1 flu in 2009.  He has sudden attacks of day-time sleepiness and a tendency to collapse to the ground, as well as permanent severe tiredness.  The uncontested evidence was that John’s condition is unlikely to improve as he grows up.

Under the Act, any person who suffers injury as a result of most types of routine vaccination is entitled to an award of £120,000 if they meet a test of “60% disablement”.  The appeal dealt with various issues as to how 60% disablement was to be assessed.

The Tribunal looked at John’s disablement not just as it affected him as an 11-year old (his age at the time of the Tribunal decision) but at how it would affect him over his future life.  The Tribunal took into account, in particular, the effects that narcolepsy with cataplexy would have on him as he becomes a young man, such as disruption to exams, inability to drive, and effects on his social life.  The DWP said that that approach was wrong and that the Tribunal should have limited its consideration to how his condition affected John as an 11-year old.

The Court of Appeal dismissed the DWP’s appeal.  It accepted John’s argument that the DWP’s interpretation was inconsistent with the fixed-sum nature of the scheme and that it “potentially turn[ed] the scheme into a litigation game” where entitlement to the award would depend on the exact timing of the claim and of appeals.  The Court of Appeal also agreed with John’s case that the Tribunal had been entitled to refer, in support of its conclusion, to a statutory schedule of percentages of disablement used in industrial injury benefit cases, and noted John’s point that, under that schedule, a double leg amputee such as Oscar Pistorius would be 100% disabled.

The result is likely to affect over 100 other cases where narcolepsy with cataplexy has been caused by vaccinations in 2009-10 against H1N1 flu.  The cases were the subject of a Channel 4 documentary broadcast in March 2015 (“The kids who can’t stay awake”) covered here.

George Peretz QC and Conor McCarthy acted for John.  Further details about the case, and the other cases standing behind it, are available here.

The Competition Appeal Tribunal (Peter Freeman QC) has rejected an urgent application by Flynn Pharma for interim relief against the CMA’s decision that Flynn should reduce its prices of Phenytoin capsules with effect from Monday.  The Directions form part of the CMA’s decision of 7 December 2016 in which it found that Flynn’s prices (and those of its supplier Pfizer) were excessive.  Flynn and Pfizer both intend to appeal against the CMA’s Decision.

Flynn brought an application for interim relief to prevent the Directions from taking effect until its appeal had been resolved.   Flynn argued that the Directions would cause it serious and irreparable harm including financial losses, a potentially permanent effect on market prices and changes to the organisation of its business.  Flynn offered a cross undertaking to protect the NHS against financial losses which interim relief would cause.  The CMA opposed the application and the Department of Health intervened in support of the CMA.

The Tribunal found that the grant of interim relief would take funds out of the NHS which would otherwise be used to treat patients in need of care in the period pending the appeal.  This would cause irreversible harm to the patients in question.  The Tribunal found that this non-financial harm was detrimental to the public interest, and was the very harm which the Decision was intended to prevent.  The Tribunal ruled that this outweighed any harm which the Directions would cause to Flynn.  It also identified difficulties in applying the cross undertaking which Flynn had proposed.

The application is the first to be decided under the new rule 24 of the Tribunal’s Rules of 2015 which the Tribunal found establishes a new jurisdictional threshold for interim orders.

The judgment can be found here.

Ronit Kreisberger acted for Flynn Pharma.

Rob Williams acted for the CMA.

Brendan McGurk acted for the Department of Health.

Article 13 of the VAT Directive exempts public bodies from VAT except where this would lead to significant distortions of competition. The decision in Case C-288/07 Commissioners of Her Majesty’s Revenue & Customs –v- Isle of Wight Council (2008) ECR I-7203 appeared to say that if the public body and private operators carry on an activity of the same nature, then fiscal neutrality requires that they both be subject to VAT but where the nature of the economic analysis of the distortion of competition (if any) to be carried out was very unclear. In particular, it remained unclear whether a distortion of competition was to be presumed in such circumstances. In Case 344/15 National Roads Authority v Revenue Commissioners, the Advocate General Spzunar on 8th September 2016 expressed the view that even though there was no evidence of actual competition between the Irish public operator of two toll roads (the NRA) and private toll road operators, fiscal neutrality required that the NRA should be subject to VAT on the tolls it charged in the same way as private operators because the two activities were similar in nature so that a distortion of competition must be presumed.

In a decision handed down on 19th January 2017 the CJEU took a different view. The CJEU stated that while the general principle was that any economic activity was to be subject to VAT, that principle could not be applied in a way which deprived the exemption for public bodies of its effectiveness. Treating a public body as non-taxable requires an assessment of economic circumstances. The exception in relation to significant distortions of competition “[43]….presupposes, first, that the activity in question is carried on in competition, actual or potential, with that carried on by private operators and, secondly, that the different treatment of those activities for VAT purposes leads to significant distortions of competition, which must be assessed having regard to economic circumstances. [44] It follows that the mere presence of private operators on a market, without account being taken of matters of fact, objective evidence or an analysis of the market, cannot demonstrate the existence either of actual or potential competition or of a significant distortion of competition.” Since there was no economic analysis or evidence that the NRA competed (actually or potentially) with the private operators, the Court held that the NRA should not be regarded for the purposes of Article 13 as competing with private operators.

Michael M. Collins SC acted for the National Roads Authority.

Please click here for the full judgment.

The Supreme Court has handed down three important judgments which are expected to have significant impact on the protection of human rights overseas.

Serdar Mohammed v Ministry of Defence & Al Waheed v Ministry of Defence [2017] UKSC 2 (available here) concerned the capture of individuals by UK forces in Afghanistan and Iraq. Following two hearings before a nine-member Supreme Court, the Court held by a majority of 7 to 2 that the UK had authority to detain individuals pursuant to the United Nations Security Council Resolutions authorising the use of all necessary measures if the detention was found to be required for imperative reasons of security – a matter that will be determined by the trial judge in both cases. However, the Court further held by majority of 6 to 3 that the procedural protections afforded to detainees in Afghanistan had in any event been inadequate (there were no findings regarding the procedures in Iraq before the Court).

Belhaj and another v Straw and others & Rahmatullah (No.1) v Ministry of Defence and Foreign and Commonwealth Office [2017] UKSC 3 (available here) concerned the UK’s involvement in the capture and rendition of individuals abroad. A seven-member Supreme Court dismissed the Government’s appeal, holding that the Defendants could not rely on state immunity or foreign act of state and that the cases should proceed to trial.

Rahmatullah (No.2) v Ministry of Defence & Mohammed and others v Ministry of Defence [2017] UKSC 1 (available here) concerned tort cases brought by the Claimants under the law of Iraq and Afghanistan. A seven-member Supreme Court held that the Defendant could rely on the doctrine of Crown Act of State and that insofar as the claimants’ tort claims are based on acts of an inherently governmental nature in the conduct of foreign military operations by the Crown, the Government cannot be liable in tort.

Nikolaus Grubeck is acting for Serdar Mohammed, Al Waheed and Rahmatullah.

Julianne Kerr Morrison is acting for Serdar Mohammed.

The CAA has issued a final infringement decision that East Midlands International Airport Limited (EMIA) and Prestige Parking Limited broke competition law by agreeing to fix prices of car parking services at East Midlands International Airport.  See full CAA press release.

Anneli  Howard , acting as the CAA’s Standing Counsel, advised the CAA from the outset of the investigation, including the transfer of the case from the CMA under the concurrency regime, leniency and settlement process, evidence gathering, witness interviews, assisting with drafting the SO and the final decision.