The Technology and Construction Court (Freedman J) has today handed down a significant judgment in a procurement dispute, dismissing a challenge to the exclusion of a tender for non-compliance following an expedited trial.

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 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.

The judgment contains an in-depth consideration of the relevant case law along with a detailed application of the principles to the instant case. It will therefore be of widespread interest to both economic operators and contracting authorities as regards the correct treatment of non-compliant tenders, the circumstances in which exclusion of a tender is permitted, and in particular the application of the principles of transparency and equal treatment in the context of errors in a pricing schedule for a call-off under a framework agreement.

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).

A copy of the judgment can be found here.

Francis has achieved a resounding success in a hearing in the Supreme Court of Gibraltar, on behalf of his client, Oldstone Cargo and its insurers QBE Europe, the insurers of the OS 35, a vessel which sank off the Gibraltar coast in August 2022. The judgment releases £14,500,000 previously paid into Court by QBE Europe.

In a 37-page judgment covering issues of both private and public international law, Restano J held that: (a) a letter of undertaking (“LOU”) was “acceptable” and “adequate” security for the purposes of Article 11(2) of the Convention on Limitation of Liability in Maritime Claims 1976 (as amended) (“the LLMC”) as applied in the leading Court of Appeal authority The Atlantik Confidence [2014] EWCA Civ 217; (b) the Defendants’ concerns about enforcement of the LOU were not “real or material”; and (c) the Gibraltar Port Authority’s blanket refusal to consider LOUs was ultra vires and put both Gibraltar and the United Kingdom in breach of their obligations under public international law.

The judgment reiterates that signatories to the LLMC, including their public representatives such as port authorities, cannot adopt blanket prohibitions on LOUs without breaching public international law.  The judgment also clarifies the relevant considerations relating to whether an LOU is “adequate”, by adopting the test advanced by Francis, providing that “issues as to enforceability” of an LOU need to be “real and material”.

The judgment underscores chambers’ strengths in technical commercial law, including the intersection of commercial, shipping, insurance, and public international law. A copy of the judgment can be found here, with the substance of the analysis being from §44 onwards.

Francis Hornyold-Strickland was instructed by Jim Cashman and Jonathan Goulding of HFW (Athens and London). Local counsel were Raymond Triay and Sebastian Triay of Triay Lawyers.

The CAT has today published two judgments in Allergan PLC & Ors V The Competition and Markets Authority concerning a CMA Decision which found an unlawful agreement in relation to 10 mg hydrocortisone tablets. The first judgment (dated 29 September 2023 and originally handed down confidentially to the parties) addresses the substantive arguments on appeal and raises certain questions of due process. Those questions of due process were considered at a further (closed) hearing in October 2023. The second judgment, dated 8 March 2024, upholds the appeals against the finding of an unlawful agreement in the CMA Decision on the basis of the CAT’s findings that the CMA did not put certain adverse findings in the Decision to witnesses called by Advanz.

Robert Palmer KC, Laura John and Jack Williams (instructed by Linklaters LLP) appeared for the Intas Appellants.

Mark Brealey KC (instructed by Morgan, Lewis & Bockius UK LLP) appeared for the Advanz Appellants.

Josh Holmes KC, Nikolaus Grubeck, Michael Armitage and Daisy Mackersie (instructed by the legal department of the Competition and Markets Authority) appeared for the Competition and Markets Authority.

The High Court has dismissed Prince Harry, the Duke of Sussex’s, claim for judicial review challenging the decision of RAVEC that he should no longer be given the same degree of publicly funded protective security, provided by the police, when in Great Britain, following his decision in early 2020 to step back from his role as a working member of the Royal Family. RAVEC is the body given responsibility by the Home Secretary for decision-making in relation to matters of protective security in Great Britain.

The Duke of Sussex advanced a significant number of challenges to the decision-making of RAVEC, alleging: failures to follow their own policies; inconsistent treatment with others; irrationality given, amongst other matters, his status from birth as a senior member of the Royal Family; and procedural unfairness in the way in which the decision was reached and information which was not provided to him at the time. The judgment of Lane J dismisses all of the grounds of challenge, both to the decision taken in 2020 and all of the challenges in relation to its application to subsequent visits of the Duke to Great Britain.

Significant parts of the hearing before Lane J were necessarily held in private to ensure that details of the security arrangements of the Duke, and of third parties, were not placed in the public domain. The High Court’s public judgment is similarly heavily redacted on the same basis. That public judgment – R (Duke of Sussex) v Secretary of State for the Home Department [2024] EWHC 418 (Admin) – is available here.

Today’s decision is being widely reported, including on the BBC.

This was the second judgment dismissing a judicial review complaint that Prince Harry brought over his security arrangements. In May 2023, Robert also successfully defended a challenge brought by the Duke against RAVEC’s decision to reject in principle any ability to privately fund police protection. The decision concluded that it would be inappropriate to support or authorise the wealthy to ‘buy’ protective security services provided by specialist officers of the Metropolitan Police. The judgment in that case is available here.

Robert Palmer KC acted for the Secretary of State for the Home Department.

The Court of Appeal has today handed down judgment in DAF Trucks Limited v Royal Mail and British Telecom, dismissing DAF’s appeal against the Competition Appeal Tribunal’s judgment of 7 February 2023.

This was the first case to reach trial in the UK based on the European Commission’s 2016 Trucks decision. The Tribunal upheld Royal Mail and British Telecom’s damages claims against DAF for loss arising from the breach of competition law found by the Commission.  In dismissing DAF’s appeal, the Court of Appeal addresses the use of the “broad axe” in quantifying competition damages, and the legal test to be applied in determining whether a claimant has passed-on its losses to customers.

All parties to the proceedings were represented by leading and junior counsel from Monckton Chambers.

Tim Ward KC, Ben Lask KC, Ligia Osepciu appeared for Royal Mail and British Telecom. Clíodhna Kelleher appeared for the Claimants at first instance.

Daniel Beard KC, Daisy Mackersie and James Bourke appeared for DAF.

A copy of the judgment is here.

Francis Hornyold-Strickland has successfully defended an ex parte application for an injunction. The injunction sought to restrain Francis’ client from exchanging on the sale of a high value property overlooking Hyde Park.

On 12 February 2024, Francis appeared before Leech J, in the chancery interim applications list, acting for the receivers and the mortgagee. The applicant’s company had taken out a £6,800,000 loan, secured by charges over various properties, including the property in issue. Having defaulted on the loan, the mortgagee took possession of the property. Receivers were about to exchange contracts with a buyer, when, the day before, the ex parte application was made on the basis, inter alia, that the sale was at an undervalue.

Leech J held that while there was clearly a serious triable issue about whether there was, in fact, a sale at an undervalue, nevertheless: (a) damages would be an adequate remedy, and the receivers were highly regulated professionals who were likely to have sufficient insurance in place; and (b) the balance of convenience weighed heavily in favour of not granting the injunction.

The application underscores chambers’ strengths in commercial litigation, including in bringing and defending emergency injunctions.

Following a 4-week trial at the end of last year, the High Court has handed down judgment in a cartel follow-on claim in relation to the LCD cartel. The claim was brought by Granville and OT Computers (now insolvent former UK computer manufacturers ‘Time’ and ‘Tiny’), based on a 2010 European Commission decision. The case is only the third cartel damages claim to reach final judgment in the UK (after Britned and the Royal Mail Trucks claim).

The Court, HHJ Pelling sitting as a High Court judge in the Commercial Court, found that the cartel, which had operated from 2001 to 2006, had resulted in an overcharge of between 4% and 8% for the main product categories (with a 14% overcharge found in relation to a very small third category). The Court further held that the Claimants were likely to have passed on 65% of that overcharge to their downstream customers in the form of higher prices. The Court accepted, however, that this gave rise to a substantial secondary claim for lost profits from lost sales due to higher retail prices.

The Court rejected arguments that the claim was time barred, following the Court of Appeal’s reasoning in a separate claim brought by the same claimants (OT Computers v Infineon [2021] Q.B. 1183) as to the knowledge an insolvent claimant could with reasonable diligence be expected to have discovered. The Court also rejected arguments that substantial parts of the claim (where products had first been put onto the market outside the EEA) were either governed by foreign laws, and should therefore fail, or otherwise fell outside the territorial scope of EU law. The Court of Appeal had ruled earlier that the Claimants were not entitled to claim compound interest for the period of their insolvencies, as the requirements for awarding compound interest on an equitable basis (as opposed to as damages in a Sempra Metals sense) were not met (Granville v LG [2024] 2 W.L.R. 372).

Stefan Kuppen acted for the claimants.

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.