Philip Moser QC and Ewan West act in first Concessions Contracts case

Ocean Outdoor v London Borough of Hammersmith & Fulham [2019] EWCA Civ 1642

The Court of Appeal has given judgment in Ocean Outdoor, the first case turning on the Concessions Contract Regulations 2016 (“the CCRs”). The lead judgment was given by Coulson LJ, formerly the presiding judge in the TCC which is the preferred jurisdiction for public procurement cases and from which this was an appeal. The judgment is remarkable in at least four principal respects: first, it delineates the ambit of the CCRs by providing a judicial definition of what constitutes a relevant ‘concession’ for these purposes; secondly, in a finding with significance for procurement cases across the board, it confirms O’Farrell J’s decision below that in order for there to be a public contract it must be one for the benefit of the contracting authority “in respect of its public obligations”; thirdly, the CofA ruled on the land transaction exemption, again for the first time in a case where it was directly in issue, giving it a fairly wide ambit, and finally the CofA gave important guidance on damages in public procurement cases, both as to the Francovich conditions (where mere breach of the Regulations, even the OJEU advertising requirement, will not suffice to render it a “sufficiently serious breach”) and on the applicability of the “loss of a chance principle” to procurement damages claims.

Read full judgment here.

Read case study by Alfred Artley.

Philip Moser QC and Ewan West appeared on behalf of the Appellant, Ocean Outdoor.

High Court dismisses challenge to BEIS’ smart meter programme

Utilita Energy Limited v Secretary of State for BEIS

Lewis J has dismissed an application for judicial review of three decisions dealing with the rollout of the Government’s smart metering programme. Since 2011, the Department for Business, Energy, Innovation and Skills (BEIS) has been progressing a flagship policy to ensure that every domestic home has a smart meter by the end of December 2020.

Smart meters are gas or electricity meters which enable two-way communication between the meter at the property where it is installed and the energy supplier. They bring significant benefits to customers and the environment by providing customers with greater transparency regarding their energy consumption in real time, facilitating switching onto cheaper tariffs and encouraging efficient energy use, with the aim of lowering carbon emissions and developing the “smart grid”.

First generation smart meters, or SMETS1 meters, can only communicate with the particular operating system used by the customer’s energy supplier. This means that when customers switch energy supplier, they may lose smart functionality. Second generation smart meters – SMETS2 – all communicate via a single operating system administered via DCC. The universal communications system means that’s SMETS2 meters will be interoperable meaning that customers can switch energy supplier without losing smart functionality and take advantage of innovative services provided by third parties.

It is a central part of BEIS’ smart meter programme to ensure a transition from SMETS1 to SMETS2 meters. Alternatively, SMETS1 meters may be “enrolled” so that they communicate via the DCC single operating system, thus functioning as if they were SMETS2.

Utilita, an energy supplier, challenged three decisions within the smart meter programme on number of grounds ranging from irrationality, breach of A1P1, and breaches of environmental impact assessment duties, the public equality duty and statutory obligations in the Electricity Act and Gas Act. The first decision was the licence obligation for energy suppliers to “enrol” their SMETS1 metres with the single operating system or else to replace them with SMETS2 meters by the end of 2020. The second decision was that any SMETS1 meters installed after 15 March 2019 would no longer count towards an energy supplier’s smart meter “roll-out” duty. The claim for judicial review of both decisions was dismissed on all grounds. Lewis J held that there was nothing irrational, illogical or otherwise unlawful in the Government’s approach, and the Secretary of State had complied with all applicable statutory obligations, including in relation to assessing environmental impact and the public sector equality duty.

Utilita sought permission to bring a third ground of challenge, relating to how BEIS performed its cost-benefit analysis when deciding that Utilita’s brand of SMETS1 meters ought to be enrolled in the DCC single operating system. Lewis J held that Utilita had “not begun to establish that the defendant had made any arguable public law error” so permission was refused.

Anneli Howard, Anneliese Blackwood and Imogen Proud acted for the Secretary of State.

To view the judgment, please click here.

Boundary Fares CPO stayed pending Mastercard in Supreme Court

Cases 1304 and 1305/7/7/19 – Gutmann v London & South Eastern Railway Limited and others

The Competition Appeal Tribunal has ordered a stay in the pending application for a Collective Proceedings Order in the “Boundary Fares” claims brought by Mr Justin Gutmann as the proposed representative of class of rail passengers against the operators of the South Eastern and Southwestern rail franchises.

In a ruling on 23 September 2019 the CAT concluded that this was sensible and practicable in light of the pending appeal to the Supreme Court in Merricks v Mastercard, which will consider various points, including the appropriate test for certification and whether or not it ought to be equivalent to that applicable in a strike-out application, as the Court of Appeal has held in Merricks.

The CAT did however agree with the parties that the issues in Gutmann concerning only the funding arrangements supporting the proposed class representative should continue to a one-day hearing on 7 November 2019. The Tribunal was satisfied that these issues were sufficiently distinct and would not be affected by the pending appeal in Merricks. This mirrors the approach taken by the Tribunal in the Trucks collective proceedings.

Philip Moser QC, Stefan Kuppen and Alexandra Littlewood of Monckton Chambers act for the proposed class representative Mr Gutmann.

Tim Ward QC and James Bourke of Monckton Chambers act for First MTR Southwestern Trains

Paul Harris QC, Laura Elizabeth John and Michael Armitage of Monckton Chambers act for London & South Eastern Railway

Members of Monckton Chambers are also involved in both the Trucks and Merricks cases.

European General Court upholds Commission’s finding that HSBC violated competition law – Commission represented by Ben Lask

HSBC vs European Commission

On a day of important judgements, the EU General Court delivered another one in the first of three appeals concerning the manipulation of the “Euribor” inter-bank lending rate. Back in 2007, HSBC had colluded with a number of other banks to fix the Euribor – a benchmark rate on which the prices of high-value financial products know as “Euro Interest Rate Derivatives” are based. The European Commission found that this scheme, together with a number of related exchanges of confidential information, constituted a breach of European competition law, and issued multi-million Euro fines against the banks concerned. Whilst a number of the banks settled with the Commission, HSBC and two others (Credit Agricole and JPMorgan) appealed to the General Court.

HSBC’s appeal was the first to be heard and, in an important judgment issued yesterday (24 September), the Court dismissed the appeal on liability. Upholding the Commission’s decision, the Court found that HSBC’s conduct had as its purpose the restriction of competition so as to constitute an “object” infringement of Article 101 of the Treaty. The Court also dismissed HSBC’s argument that the Commission had adopted an unfair procedure. Finally the Court found that, in imposing a fine of 34 million Euros of HSBC, the Commission had failed to provide a sufficient explanation of its calculations. It therefore annulled the fine for insufficient reasoning. It will now be for the Commission to decide whether to readopt the fine, having regard to the Court’s judgment.

Ben Lask acted for the European Commission before the General Court. A link to the judgment is here.

Philip Woolfe and Stefan Kuppen acted for Achilles in successful CAT claim against Network Rail

1298/5/7/18 Achilles Information Limited v Network Rail Infrastructure Limited

The Competition Appeal Tribunal has found that Network Rail had acted unlawfully in accepting only supplier assurance provided by the Rail Safety Standard Board’s RISQS scheme for the purposes of its Sentinel and On Track Plant Operating Schemes which govern physical access to its infrastructure by providers of infrastructure maintenance and construction services.

In a judgment handed down in July, the Tribunal found that relevant terms in the scheme rules constituted both an anticompetitive agreement and an abuse of Network Rail’s dominant position. As the trial had proceeded as a trial of liability as a preliminary issue, the latter finding was based on an assumption of dominance yet to established at a later hearing.

The Tribunal held that it was only legitimate for Network Rail to impose a requirement of a specific assurance provider in relation to suppliers it contracted with directly, not in relation to the wider supply chain of sub-contractors which equally required access to its infrastructure.

The Tribunal this week ordered that Network Rail cease to impose the offending requirement and put in place as soon as practicable arrangements for the acceptance of supplier assurance provided through alternative schemes, including that provided by Achilles. The Tribunal refused Network Rail’s application for permission to appeal, but suspended the effect of its order pending a renewal of that application to the Court of Appeal.

Proceedings in front of the Tribunal had been expedited following a successful application by Achilles, and the matter had proceeded to a trial of the preliminary issue of liability within 4 months from the application for expedition. A trial of the issue of dominance and of a claim for damages is to follow.

Read a case note about the judgment by Alfred Artley.

Philip Woolfe and Stefan Kuppen acted for Achilles Information Limited.

Google v CNIL: Court of Justice limits territorial scope of the Right to be Forgotten

Google vs Commission nationale de l’informatique et des libertés (CNIL)

In a landmark judgment for freedom of expression and access to information, the Court of Justice of the European Union has today held that the ‘Right to be Forgotten’ under EU law does not require search engines to de-list search results on a global basis.

The case, C-507/17 Google Inc v Commission nationale de l’informatique et des libertes (CNIL), concerned a complaint brought by Google against CNIL, the French data protection regulator, in relation to a number of de-referencing requests made in the wake of the CJEU’s decision in Case C-131/12 Google Spain – the so-called ‘Right to be Forgotten’. CNIL had ordered Google to de-index links to news reports by reference to certain named individuals in order to protect their personal data, not only on the domain name extension but also worldwide. Google challenged the scope of the de-referencing orders, following which the Conseil d’État made a preliminary reference to the CJEU.

In today’s judgment, the CJEU held that the Right to be Forgotten – now enshrined in article 17 of the GDPR – did not require a search engine to carry out a request for de-referencing on a global basis but only within the territory of the EU itself. Among other things, the Court observed that “the balance between the right to privacy and the protection of personal data, on the one hand, and the freedom of information of internet users, on the other, is likely to vary significantly around the world” (para 60) and that EU law did not provide any mechanism for balancing those interests outside its territory. The right to personal data, the Court held, was “not an absolute right, but must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality”.

Gerry Facenna QC, Eric Metcalfe and Guillaume Tapie of the French Bar acted for ARTICLE 19, Human Rights Watch, the Electronic Frontier Foundation, Derechos Digitales, the Centre for Democracy and Technology, the Clinique d’intérêt public et de politique d’Internet du Canada, Open Net Korea and Pen International – a coalition of 7 international digital rights organisations who were granted permission to intervene in the proceedings, arguing that global de-referencing orders were an inherently disproportionate interference with the rights to freedom of expression and access to information.

The CJEU judgment is available here and ARTICLE 19’s press release can be read here. The judgment has already received considerable media attention, including from the Wall Street Journal, the New York Times, the Los Angeles Times, the Daily Telegraph, the Financial Times, and the BBC.

Alan Bates instructed on behalf of Tafida Raqeeb as EU law challenge begins to hospital’s refusal to transfer her to Italy

The High Court has today begun hearing a judicial review challenge brought on behalf of 5-year-old Tafida Raqeeb in reliance on EU free movement law.

Tafida is a patient at a London NHS hospital. She is in what is described by the hospital as a “minimally conscious state” after suffering serious injury to her brain injury in February as a result of a rare condition, arteriovenous malformation, where a tangle of blood vessels causes blood to bypass the brain tissue.

The doctors treating Tafida in London believe that there is no hope for improvement in Tafida’s condition and that life-sustaining ventilation should be withdrawn. Tafida’s parents disagree: their fervent wish, informed by their Muslim faith, is that ventilation be maintained. They wish to move Tafida to a specialist paediatric hospital in Italy which is willing to continue life-sustaining treatment. In Italy, life-sustaining treatment is normally maintained for patients who have not suffered brain stem death. The medical consensus is that Tafida’s life expectancy, if ventilation is maintained, could be 10-20 years.

The London hospital refused to co operate with arranging the transfer to Italy. It did so pending its own application to the High Court under the Children Act seeking a declaration that Tafida’s best interests would be for ventilation to be withdrawn, leading to her death. The hospital did not obtain an interim injunction or care order to prohibit the transfer. As a result of the hospital’s refusal to co operate with the transfer, Tafida remains in London and has not been transferred to Italy to receive treatment there in accordance with her parents’ wishes.

In the judicial review claim being heard from today, the legal team instructed by Tafida’s litigation friend to represent Tafida contend that the hospital’s refusal to transfer her to Italy was an unlawful infringement of her EU right to travel within the EU to receive services (Article 56 of the Treaty on the Functioning of the EU). They further argue that, insofar as the hospital trust’s reasons for refusal to co operate with the transfer was that Italy has different laws, and a different medico-ethical culture, in relation to the continuation of life-sustaining treatment, such reasons involve impermissible discrimination. As Italy is an EU country, Tafida’s human rights would not be jeopardised by transferring her to a specialist hospital in Italy, albeit that the Italian legal and medical systems are not identical to their UK counterparts in relation to their approach to ‘best interests’.

The judicial review claim will be heard on the first two days of a 5 day hearing, with the remaining days being reserved for the hearing of the hospital trust’s application for a determination as to Tafida’s best interests. The judge, Mr Justice MacDonald, is sitting as a judge of both the Administrative Court and the Family Division.

Monckton barrister Alan Bates is instructed on behalf of Tafida (acting through her litigation friend).

The case is attracting widespread media attention. See BBC News; Sky News; The Guardian.

Bridges v South Wales Police: High Court upholds Police use of Automated Facial Recognition

In what is described as the first time any court in the world has considered the use of Automatic Facial Recognition (AFR), the Divisional Court in Cardiff has today dismissed an application for judicial review brought by a civil liberties campaigner against South Wales Police’s use of AFR.

In 2017, South Wales Police began a trial of AFR, deploying cameras at a range of public events including shopping centres, football matches and an arms fair exhibition. The trial involved capturing the facial biometric data of thousands of members of the public and using AFR software to match the captured data against police watchlists in order to identify persons of interest.

The Claimant, supported by the human rights group Liberty, was granted permission to judicially review the use of AFR on the basis that it was a breach of his rights under the Data Protection Act 1998 and article 8 of the European Convention on Human Rights. The Claimant also argued that the use of AFR was contrary to the police’s Public Sector Equality Duty under the Equality Act 2010.

The Divisional Court held that, although the police’s use of AFR engaged the right to privacy under article 8 and amounted to the processing of sensitive personal data, its use was nonetheless lawful on the basis that the interference struck a fair balance and was not disproportionate.

The judgment has attracted widespread media coverage, including the Financial Times, the Guardian, the BBC and the New York Times.

Gerry Facenna QC and Eric Metcalfe acted for the Information Commissioner who was granted permission to intervene in the proceedings.

George Peretz QC and Alan Bates represent HMRC in defeat of State Aid claim by Credit Suisse

In a judgment released earlier today, the High Court dismissed Credit Suisse’s claim that the UK infringed EU State aid rules when it implemented Bank Payroll Tax (the “bankers’ bonus tax”) in 2009-2010.

Bank Payroll Tax was a tax paid by banks on non-contractual bonuses paid to their employees during the period that the tax applied. Credit Suisse argued that, because the tax took effect from December 2009 and ceased to have effect in April 2010, there was a State aid to banks that generally paid their bonuses at other times of the year. It further argued that, if it was right about that, it was entitled to damages including all the Bank Payroll Tax that it had paid (an amount of over £200 million) as well as other alleged losses.

Dismissing the claim, Falk J held that there was no State aid. Banks that paid bonuses during the period of application of the tax were not in a legally or factually comparable situation to that of banks who paid bonuses at other times of the year: the tax was intended to operate only during a short period, pending the coming into force of regulatory measures designed to reduce the risk of bank failures. There was therefore no element of selectivity and hence no State aid. The Judge also noted that Credit Suisse had failed to adduce any evidence as to the effect of the measure on competition or effect on trade.

The Judge also held that, even if she had been wrong about the existence of State aid, any breach of the State aid rules would not have been manifest or serious, and therefore would not have given rise to a claim for damages: moreover, Credit Suisse was not entitled under the State aid rules to claim as damages the amount paid by it in tax. She did not need to decide a further defence by HMRC based on a statutory time-bar.

George Peretz QC and Alan Bates represented HMRC

Promotion of LGBT rights could not be a ground for refusing to register associations – Jeremy McBride intervenes on behalf of the EHRAC, ILGA-Europe and ICJ

Zhdanov and Others v. Russia (application nos. 12200/08, 35949/11 and 58282/12)

The European Court of Human Rights has found in Zhdanov and Others v. Russia (application nos. 12200/08, 35949/11 and 58282/12) to register the applicant organisations – and thereby obtain legal-entity status – because they promoted LGBT rights had been in violation of Articles 11 (freedom of assembly and association) and 14 (prohibition of discrimination) of the European Convention on Human Rights. In the Court’s view this decisive ground for the refusals could not be reasonably or objectively justified and had, moreover, amounted to discrimination on the grounds of sexualorientation.

In reaching this conclusion, the Court took account of the third party intervention prepared by Jeremy McBride on behalf of the European Human Rights Advocacy Centre (EHRAC), the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe) and the International Commission of Jurists (ICJ).

The judgment is also interesting for the ruling decided, by a majority of the Court, to declare inadmissible the complaints lodged by one of the applicants, namely the well-known LGBT activist Nikolay Alekseyev, as an abuse of the right of application because of his offensive and threatening statements about the Court and its judges on social networking accounts

To view the judgment, please click here.