The Court of Appeal today gave judgment in R(British Gas Trading and E.ON) v Secretary of State for Energy Security and Net Zero, the first case before it dealing with the post-Brexit UK subsidy control regime. The case concerned the then government’s package of subsidy to facilitate the acquisition in 2022 by Octopus of Bulb, a major retail supplier of electricity that went into special administration in 2021. British Gas and E.ON brought judicial review proceedings in the Administrative Court claiming breach of the subsidy control provisions in the UK/EU Trade and Cooperation Agreement (“TCA”), which has been incorporated into domestic law by the EU (Future Relationship) Act 2020. (The Subsidy Control Act 2022, which now regulates grants of subsidy by UK authorities, had not at that stage come into force.) They claimed that defects in the tender process leading to the selection of Octopus as the acquirer meant that the subsidy could not properly be regarded as the minimum necessary and that subsidy had been granted to Octopus as well as to Bulb: they also claimed breach of the specific TCA provisions relating to restructuring subsidies. The Divisional Court rejected their claims in March 2023, refusing permission to bring judicial proceedings on the ground of delay and also finding that the graunds of judicial review failed in any event. British Gas and E.ON appealed to the Court of Appeal.

In its judgment, the Court of Appeal finds that the Divisional Court was wrong to refuse permission on the ground of delay in relation to the claim for financial relief (a recovery order), both on domestic law principles and because of provisions of the TCA that required the claimants to be provided with sufficient information about the subsidy, information that was not provided until very shortly before they brought their claim. However, the Court of Appeal rejected the appeal on the merits, holding that the decision to grant subsidy was subject to review only on conventional domestic law principles of judicial review, including rationality.  It went on to hold that the Secretary of State was entitled to take the view that the process followed to select Octopus was open, transparent and non-discriminatory so as to provide the basis for a conclusion of minimum subsidy to Bulb (and no subsidy to Octopus) and that he was also entitled to take the view that the subsidy responded to a global or national economic emergency: a conclusion that made it unnecessary for the Court to decide whether the subsidy complied with the specific rules on restructuring subsidy.

George Peretz KC and Harry Gillow, instructed by Pinsent Masons LLP, acted for E.ON in the appeal to the Court of Appeal.

In the matter of Thames Water Utilities Holdings Limited and in the matter of the Companies Act 2006 [2025] EWHC 338 (Ch), judgment 18 February 2025, Leech J

Philip Moser KC and Hugh Whelan of Monckton Chambers have acted successfully for Thames Water in its application to the Court to sanction its proposed restructuring plan. This approval paves the way for Thames Water to access significant further funding.

The restructuring plan was principally contested by a group of creditors holding Class B junior debt (known as the ‘Class B Creditors’) who advanced several Grounds of Objection to the plan. By their fourth objection, the Class B Creditors submitted that there was a ‘blot’ in the proposed restructuring plan because one of its clauses, known as the ‘June Release Condition’ (which provided certain conditions for the release of future tranches of funding), infringed the Chapter I Prohibition contained in section 2(1) of the Competition Act 1998.

Leech J dismissed this objection, holding that the Class B Creditors had failed to prove any of their allegations on the balance of probabilities, so the objection failed on the facts. Leech J further found that, even if the Class B Creditors had proved their allegations, he would have dismissed the objection in any event based on the application of the law to the facts, as there was neither a restriction of competition by object nor a restriction of competition by effect.

The Judgment can be found here.

Philip Moser KC and Hugh Whelan of Monckton Chambers, instructed by Linklaters, acted for the successful Applicant Company in relation to the competition law matters.

Working on Wellbeing Ltd Trading as Optima Health v (1) Secretary of State for Work and Pensions, (2) Department for Work and Pensions

The Court of Appeal (Coulson LJ, Fraser LJ, and Zacaroli LJ) has handed down a significant judgment in a procurement dispute, clarifying the circumstances in which a contracting authority is obliged or entitled to seek clarification of errors in a tender.

The claimant (Optima Health) had tendered for a call-off contract under a framework agreement to provide occupational health and employee assistance programme services to the Department for Work and Pensions. Under the framework agreement, suppliers could not charge prices in excess of framework prices for any call-off contract. Optima submitted a pricing schedule in which a small number of items were in excess of the framework prices. DWP considered Optima’s tender to be non-compliant and excluded it from the competition, although it had the highest score on quality and would (but for its non-compliant prices) have been the winning bidder.

Optima alleged that the pricing schedule contained obvious clerical errors and that its disqualification was in breach of the principles of transparency and equal treatment and/or disproportionate. At trial, the Court was asked to determine: (i) whether the tender documentation clearly and transparently set out the consequence of exceeding framework prices (ii) if the tender documents were clear and DWP therefore had a discretion, whether it had acted unlawfully by excluding Optima rather than taking alternative action, such as reducing the prices to the maximum framework prices, waiving the non-compliances, or seeking clarification.

The High Court found against Optima on both grounds, holding that (i) it was clear from the tender documentation (understood in its commercial context) that bids with prices in excess of framework prices would or might be excluded and (ii) DWP had lawfully excluded Optima from the competition.

Optima appealed on the basis that (i) the judge had erred in finding that the tender documentation contained a clear rule of mandatory exclusion and (ii) in the circumstances DWP ought to have permitted to Optima to correct and/or clarify the errors in its tender.

The Court of Appeal allowed the appeal, concluding that: the tender documentation did not contain a clear rule of mandatory exclusion; DWP had failed properly to exercise its discretion in relation to clarifying the errors; in the circumstances it was obliged to seek clarification of them and to do so would not have been a breach of the principle of equal treatment.

The lead judgment of Coulson LJ contains an in-depth consideration of the existing European and domestic authorities, clarifying when corrections to tenders may be permissible and the circumstances in which a contracting authority is required to seek clarification. The judgment emphasises that equal treatment is not an end in itself; rather the principle must be applied with regard to the overall purpose of public procurement, which is to ensure healthy and effective competition and to allow a proper evaluation of tenders. In those circumstances, a contracting authority is obliged is to seek clarification where it is clear that the details of a tender require clarification or where it is a question of the correction of obvious clerical errors; clarifications should then be permitted where they are not substantial and do not amount to the submission of a new bid (which will be a matter of judgment for the evaluators).

This judgment will be of widespread interest to both economic operators and contracting authorities as regards the correct treatment of non-compliant tenders and the circumstances in which exclusion of a tender is permitted.

Valentina Sloane KC acted for Optima Health (instructed by Eversheds Sutherland (International) LLP).

Azeem Suterwalla and Alfred Artley acted for DWP (instructed by the Government Legal Department).

The High Court (Jefford J) has given judgment (1) in favour of lifting the Automatic Suspension under the PCR 2015, to permit the NHS Northamptonshire Integrated Care Board (ICB) to contract with its preferred bidder, and (2) dismissing the Claimant’s application for expedition in the proceedings.

The proceedings concern a Part 7 claim brought against the procurement of a contract to provide an Urgent Care Centre in Corby.  The Claimant is the incumbent operator of the previous service. It was unsuccessful in the procurement.

The Court decided the application on the balance of convenience, finding that it was “firmly in favour” of lifting the Automatic Suspension. Notably, the Claimant declined to provide the standard cross-undertaking to the ICB or the interested party successful bidder. The Court held that this was the strongest reason not to grant the application (§82).

Following consequential matters, the Court ordered a temporary stay of execution its order, pending any application for permission appeal by the Claimant to the Court of Appeal, which it directed must be made on an expedited timetable.

Judgment is available here.

Jen Coyne acted for the NHS Northamptonshire Integrated Care Board, instructed by James Barry and Libby McKane at Mills & Reeve LLP.

Vauxhall Motors Limited and others v Denso Automotive UK Ltd and others [2025] EWHC 213 (Ch), judgment 5 February 2025, Bacon J

Philip Moser KC, Alan Bates and Jack Williams of Monckton Chambers have acted successfully for the First Defendant (an alleged “anchor” defendant) and others who challenged the jurisdiction of the English courts in claims concerning their alleged participation in a worldwide car-cooling parts cartel.

The application was a forum non conveniens jurisdictional challenge, once again made possible since Brexit and the UK withdrawal from the Brussels Regulation regime. The underlying action was for competition law damages brought by a group of car manufacturers, including the French Stellantis group and others, against certain suppliers of car-cooling components.

The Court accepted the defendants’ arguments that the appropriate forum for the proceedings was France, and not England and Wales, Mrs Justice Bacon concluding that that was the jurisdiction with which they had the closest connection. The claims against the UK-based defendants were stayed generally, the orders permitting service out on the remaining defendants were set aside, and the claims against those defendants were dismissed.

This is now the second reported forum non conveniens challenge to jurisdiction in a competition law context since Brexit, following Mercedes-Benz v Continental Teves [2023] EWHC 1143 (Comm). Both have succeeded.

Philip Moser KC, Alan Bates and Jack Williams of Monckton Chambers, instructed by Linklaters, acted for the successful DENSO group of Defendants

 

The FTT has released its decision rejecting Lloyds Asset Leasing Limited’s (LAL) appeal by which it claimed to be entitled to claim cross border group relief (CBGR) in the UK for losses suffered in Ireland. LAL was one of 100 subsidiaries of the Lloyd’s Banking Group (LBG) to whom Bank of Scotland Ireland (BOSI) sought to surrender losses it incurred in relation to its banking business in Ireland following the financial crisis of 2008.

HMRC disallowed LAL’s claim for CBGR on the basis that the qualifying loss conditions in s119 CTA 2010 were not satisfied and, in the alternative, s127 CTA should apply as the “main purpose or one of the main purposes” of the arrangements by which BOSI’s losses were sought to be surrendered was to secure that the amount in question may be surrendered for the purposes of group relief.

The FTT found that LBG satisfied the qualifying loss condition in s119 and the precedence condition in s121 but that s127 applied to exclude group relief as the main purpose or one of the main purposes of the arrangements put in place by LBG to exit Ireland was to secure CBGR for BOSI’s accumulated losses.

The Decision can be accessed here.

Brendan McGurk KC acted for HMRC along with Akash Nawbatt KC and Kate Blamer of Devereux Chambers.

Airwave Solutions Ltd v Competition and Markets Authority

The Court of Appeal has today dismissed an appeal brought by Motorola against the CMA’s decision to impose a price cap on its Airwave telecoms network. Airwave is used by police, fire, ambulance and other emergency services. The CMA’s charge control, made under powers in the Enterprise Act 2002, prevents Motorola from overcharging the Government around £200m each year.

Last year, Motorola brought judicial proceedings against the CMA’s decision in the Competition Appeal Tribunal on grounds that the CMA had misunderstood the relevant competitive constraints and wrongly assessed the profitability of the Airwave network. The CAT rejected those arguments in a judgment handed down in December 2023. Motorola sought to revive those arguments before the Court of Appeal, which ordered a “rolled up” hearing.

Today’s judgment rejects Motorola’s arguments and refuses permission to appeal (as a result preventing Motorola from taking its case to the Supreme Court). Subject to a review in 2026, the cap will continue in place in 2029.

Josh Holmes KC and Will Perry acted for the CMA.

Anneli Howard KC acted for the Home Office, intervening in support of the CMA. Jack Williams also acted for the Home Office at first instance.

The case has been reported in the press, for example in City AM.

HM Revenue & Customs v Sonder Europe Ltd [2025] UKUT 00014 (TCC), 14 January 2025

The Upper Tribunal (Tax and Chancery Chamber, Mr Justice Trower and Judge Jonathan Cannan) has allowed HMRC’s appeal from Sonder Europe Ltd v HMRC [2023] UKFTT 610 (TC). The UT has held that Sonder’s supplies of short-term travel accommodation did not fall within the scope of the Tour Operators’ Margin Scheme (“TOMS”) for the purposes of VAT.

Sonder leased self-contained apartments (furnished and unfurnished) from third party landlords for terms of between two and ten years. The landlords’ supplies were exempt supplies of land, not taxable supplies of travel accommodation. Sonder granted licences to occupy the apartments for periods ranging from a single night to a month. During the relevant VAT periods, the average stay was five nights. Sonder accounted for VAT under the TOMS on its margin, namely the difference between the total amount, exclusive of VAT, payable by the customer and the cost to Sonder payable to the landlord. HMRC contended that Sonder’s supplies did not fall within the TOMS and that Sonder was required to account for VAT under the ordinary rules at the standard rate on the full value of the consideration received.

The FTT held that the TOMS applied and allowed Sonder’s appeal. The UT held that the FTT erred in law in failing to have regard to the requirement under the PVD that the bought-in supply be for the “direct benefit” of the traveller when interpreting and applying Article 3(1)(b) of the UK TOMS Order. The UT also held that the FTT mischaracterised the precise nature of the supplies to which the test is to be applied: although the FTT (correctly) compared the nature and extent of the physical changes made to the actual apartments, it did not compare the alterations to the full bundle of rights and interests supplied to Sonder with those which were supplied by Sonder to its customers.

Andrew Macnab acted for HMRC.

Read the Upper Tribunal’s decision here.

Read the FTT’s decision here.

On 14 January 2025, the UK’s Competition Appeal Tribunal (CAT) handed down its Judgment (available here) in Riefa v Apple & Amazon with a landmark victory for Amazon, represented by Meredith Pickford KC and David Gregory of Monckton Chambers, and Apple.

The proposed class representative, Professor Riefa, sought a collective proceedings order on behalf of consumers against Amazon and Apple. The claim involved allegations that Amazon and Apple had coordinated so as to distort the price of Apple products online. It was strongly resisted by Amazon and Apple, and after two contested hearings, certification was refused by the CAT.

The CAT has never before refused certification with no second chance being given.

The Tribunal found that Professor Riefa failed to satisfy the “authorisation condition” – that is, to show that it was “just and reasonable” for her to act as a representative in the proceedings. This stemmed in large part from concerns that the Tribunal had about the ability of Professor Riefa to protect the interests of the class robustly and independently. A contributing factor to the Tribunal’s assessment was the evidence of Professor Riefa in cross-examination by Meredith Pickford KC. Cross examination of the proposed class representative, which  Amazon and Apple had applied to do in relation to the proposed funding arrangements, and Professor Riefa’s understanding of them, was another legal first before the CAT in applications for collective proceedings.

The lesson here for those wishing to bring collective proceedings is found in the Judgment at [115]: “A class representative is not, and cannot be, merely a figurehead for a set of proceedings being conducted by their legal representatives, but must act as the independent advocate for the class. Someone who chooses to act as a class representative therefore carries a heavy responsibility to ensure that the proceedings are conducted, in all respects, in the best interests of the class. The Tribunal will accordingly hold them to a high standard.”

Barristers at Monckton Chambers have unrivalled breadth and depth of experience in competition law collective proceedings.  They are adept in advising potential class representatives and defendants alike on how to maximise their chances of success before the Tribunal in the light of the developing jurisprudence in this fast-moving area of law.

Meredith Pickford KC and David Gregory, instructed by James Norris-Jones and Paul Stuart of Cleary Gottlieb Steen and Hamilton LLP acted for Amazon.