The High Court of the British Virgin Islands (“BVI”) has just handed down judgment in a claim brought by Cable & Wireless (BVI) Ltd (“LIME BVI”) for judicial review of the decision of the BVI Telecommunications Regulatory Commission (“TRC”) finding that LIME BVI had engaged in an anti-competitive margin squeeze in breach of the requirements of the BVI Telecommunications Act 2006. The TRC had received a complaint from CCT, a competitor of LIME BVI, to the effect that LIME BVI (by certain “All Talk Calling Plans”) was charging average retail prices to its mobile customers for calls to LIME affiliates in other Caribbean jurisdictions which were below the wholesale charges available to CCT from those LIME mobile network operators. The TRC investigated the complaint and issued a decision on 1 June 2012 to the effect that LIME BVI had engaged in an anti-competitive margin squeeze during the period January 2009 to August 2010 which, had it continued, would likely have had anti-competitive effects contrary to the public interest and would have been detrimental to consumers in the BVI in the long term. The TRC ordered LIME BVI not to engage in such conduct and fined it USD$493,665.

The Court held that the TRC’s decision was ultra vires the 2006 Act and that it should be set aside. The Court held that the relevant section of the Act under which the TRC proceeded against LIME BVI applied only to present and future conduct, and not to past conduct. The Court agreed with the submission of LIME BVI that the TRC’s decision could only have been limited to offending conduct which ceased before the decision was issued. It agreed with LIME BVI’s argument that “the tenor of the Act lends itself to ex ante regulation of operators” only. The Court therefore found that the TRC had acted ultra vires the Act and that this warranted the decision being set aside. The Court also agreed with LIME BVI’s argument that the TRC acted ultra vires the 2006 Act by applying it to LIME affiliates outside the jurisdiction of BVI law (i.e. those LIME affiliates responsible for the setting of prices in the wholesale or upstream markets). However, the court held that this illegality alone would not have been sufficient to set aside the TRC’s decision.

Kassie Smith QC acted for LIME BVI in the proceedings before the High Court of the BVI.

To read the judgment, please click here.

 

Stephen Cragg QC and Nikolaus Grubeck, instructed by Kate Harrison at Harrison Grant, are acting 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).

The case has been listed for a final hearing before a High Court judge in London on 4 August 2016 with judgment expected shortly afterwards.

The Claimants dispute that the Labour Party rulebook allows such a restriction, and the outcome of the case should determine rights of tens of thousands of new members to take part in the election and the nomination process to be held shortly by constituency parties.

The High Court of the British Virgin Islands (“BVI”) has just handed down judgment in a claim brought by Cable & Wireless (BVI) Ltd (“LIME BVI”) for judicial review of the decision of the BVI Telecommunications Regulatory Commission (“TRC”) finding that LIME BVI had engaged in an anti-competitive margin squeeze in breach of the requirements of the BVI Telecommunications Act 2006. The TRC had received a complaint from CCT, a competitor of LIME BVI, to the effect that LIME BVI (by certain “All Talk Calling Plans”) was charging average retail prices to its mobile customers for calls to LIME affiliates in other Caribbean jurisdictions which were below the wholesale charges available to CCT from those LIME mobile network operators. The TRC investigated the complaint and issued a decision on 1 June 2012 to the effect that LIME BVI had engaged in an anti-competitive margin squeeze during the period January 2009 to August 2010 which, had it continued, would likely have had anti-competitive effects contrary to the public interest and would have been detrimental to consumers in the BVI in the long term. The TRC ordered LIME BVI not to engage in such conduct and fined it USD$493,665.

The Court held that the TRC’s decision was ultra vires the 2006 Act and that it should be set aside. The Court held that the relevant section of the Act under which the TRC proceeded against LIME BVI applied only to present and future conduct, and not to past conduct. The Court agreed with the submission of LIME BVI that the TRC’s decision could only have been limited to offending conduct which ceased before the decision was issued. It agreed with LIME BVI’s argument that “the tenor of the Act lends itself to ex ante regulation of operators” only. The Court therefore found that the TRC had acted ultra vires the Act and that this warranted the decision being set aside. The Court also agreed with LIME BVI’s argument that the TRC acted ultra vires the 2006 Act by applying it to LIME affiliates outside the jurisdiction of BVI law (i.e. those LIME affiliates responsible for the setting of prices in the wholesale or upstream markets). However, the court held that this illegality alone would not have been sufficient to set aside the TRC’s decision.

Kassie Smith QC acted for LIME BVI in the proceedings before the High Court of the BVI.

To read the judgment, please click here.

 

The Court of Appeal handed down judgment today in the appeal brought by the Federation of Independent Practitioners (“FIPO”) from the Competition Appeal Tribunal’s (“CAT”) judgment of 29 April 2015.  FIPO had challenged the CMA’s finding that buyer power on the part of private medical insurers (“PMIs”) did not lead to an adverse effect on competition (“AEC”) in the market for private healthcare.   The CAT dismissed that appeal by a majority judgment (Sales LJ and Clare Potter) with Dermott Glynn, an economist member of the CAT, dissenting.

FIPO sought to appeal the CAT’s judgment on a number of grounds including that the CAT had reached irrational conclusions on issues such as fee capping, top-up fees and consumer choice.  FIPO also argued that the majority had wrongly rejected Mr Glynn’s dissenting judgment and/or failed to give adequate reasons for disagreeing with the dissenting judgment.  The CAT had given FIPO permission to appeal.

The Court of Appeal dismissed FIPO’s appeal on all grounds.  The Lord Chancellor gave the judgment of the Court.  He carefully considered the CMA’s reasoning in its Decision and determined that “the CMA’s overall conclusion, at which it was entitled to arrive, was that, despite its potential to do so, the buyer power of PMIs, and in particular Bupa and AXA PPP, had not in fact prevented, restricted or distorted competition or reduced consumer choice”.  He held that the CAT had properly considered FIPO’s criticisms of the CMA’s conclusions on appeal but that they were entitled, and indeed right, to reject them.  He also held that there was no obligation on the majority of the CAT to explain why they disagreed with Mr Glynn: “for the purposes of this appeal, it is sufficient to determine whether or not the challenges to the decision of the majority in the CAT are justified”.

Kassie Smith QC and Brendan McGurk acted for the CMA.

To read the full judgment, please click here.

The High Court has held today (22 July 2016) that the decision by West Berkshire Council to reduce funding to voluntary sector providers of short breaks to disabled children was unlawful. Steve Broach acted for the Claimants, instructed by Irwin Mitchell LLP.

The claim arose out of a decision, as part of the council’s budget setting for 2016/17, to reduce the funding given to voluntary sector organisations to provide support to families with disabled children by 52%. The Judge (Mrs Justice Elizabeth Laing DBE) held that this decision was flawed because Members were misdirected as to the requirements of the public sector equality duty and because Members failed to consider the other relevant legislation, including sufficiency duties relating to short breaks.

After permission to apply for judicial review was granted, the council took a second decision to ‘reaffirm’ the previous decision. The Judge held that this decision was ‘materially affected by apparent predetermination’ and so could not cure the flaws in the first decision.

The Judge rejected the council’s argument that relief should be refused because the Local Government Finance Act would require the full budget calculation to be quashed if relief were granted. The judgment also contains important guidance on the new requirement for permission and relief to be refused if the outcome would not have been substantially different if the conduct complained of had not occurred.

The judgment is here.

The Claims Management Regulator regulates companies providing claims management services. Such companies (who seek clients who might wish to bring personal injury claims or claims for financial mis-selling) are subject to conditions of authorisation on the same model as entities conducting regulated activity must be authorised under FSMA 2000. The CMR has been granted a new penalty jurisdiction permitting it to impose penalties on Claims Management Companies for breach of their conditions of authorisation. The jurisdiction was conferred under section 139 of the Financial Services (Banking Reform) Act 2013 which amends the Schedule to the Compensation Act 2006.

In the first reported decision on the new penalty jurisdiction, Brendan McGurk successfully defended an appeal by Complete Claims Solutions Limited.

The judgment is here.

R (Public Law Project) v Lord Chancellor [2016] UKSC 39

This week the Supreme Court handed down judgment in R (Public Law Project) v Lord Chancellor, in which it unanimously concluded that the proposed restriction of legal aid on grounds of residence under the draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2014 was ultra vires the Henry VIII clause in the enabling Legal Aid, Sentencing and Punishment of Offenders Act 2012. The judgment follows the Supreme Court’s decision on 18 April 2016 to cut short oral argument on the basis that it had already concluded that the appeal should be allowed.

Eric Metcalfe acted for the Office of the Children’s Commissioner for England, which was granted leave to intervene in the Supreme Court by way of written submissions.

Stephen Cragg QC is a trustee of PLP who brought the case.

A copy of the Supreme Court’s judgment is available here.

The Commission has issued an Article 9 commitment decision, terminating its Article 101 TFEU investigation into suspected price signalling by container liner shipping companies. The Commission opened antitrust proceedings in November 2013, claiming that the carriers’ practice of publishing their future freight increases (“GRIs”) on their websites and in the press increased transparency in the market and reduced uncertainty about the carriers’ pricing behaviour. Its case was that the announcement of non-binding percentage increases, several weeks in advance, enabled carriers to align their prices and coordinate their behaviour. That case marked a significant departure from the Woodpulp  case law, which requires evidence of collusion rather than unilateral publication of pricing intentions alone.

The carriers have been negotiating commitments since 2015 which were market tested in February 2016. Fourteen carriers have agreed to stop publishing GRIs and to ensure that any future price announcements contain a time-limited binding offer that sets out details of the maximum total price and its sub-components. The carriers are free to accept lower rates within the customary booking period for consignments or to negotiate different rates as part of long-term or bilateral agreements.

A copy of the Commission’s press release is here.

Anneli Howard acted for China Shipping Container Lines during the investigation and negotiation of commitments. In the end, following their restructuring, the Commission decided to close proceedings against China Shipping and its agencies without it having to issue commitments.

MasterCard is facing a multi-billion pound damages claim, that could reach £19 billion, for imposing illegal card charges that were ultimately borne by UK consumers. The claim, the biggest in UK legal history, will be one of the first to be filed under the Consumer Rights Act 2015, which allows a collective damages claim to be brought on behalf of a class of people who have suffered loss.

This ‘follow-on’ claim comes after a long-running legal battle with the European Commission that ended in 2014 and which found MasterCard to have infringed EU law by imposing charges (known as ‘interchange’ fees) on the use of its debit and credit cards.

Quinn Emanuel is leading the claim and the class representative is former Chief Financial Services ombudsman Walter Merricks. Quinn Emanuel partners Boris Bronfentrinker and Kate Vernon have instructed Monckton Chambers’ Paul Harris QC to lead the Counsel team.