Robert Palmer KC successfully defended a judicial review claim brought by the Duke of Sussex

Robert Palmer KC has successfully defended a judicial review claim brought by the Duke of Sussex concerning his security arrangements in Great Britain.

Following a one-day hearing On 16 May, Mr Justice Chamberlain has handed down judgment refusing permission to apply for judicial review.

The Duke of Sussex wished to challenge a decision on behalf of the Home Secretary to reject the principle of permitting the private funding of police protection where the provision of such protection was no longer judged to be in the public interest. 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.

This was the Duke’s second claim for judicial review of decisions made concerning his security since his stepping back as a working member of the Royal Family. The Duke’s first claim, in which Robert is also acting, challenges the decision to alter his protective security arrangements. That claim had been granted permission in July 2022 on a limited basis and will be heard in due course.

Robert was instructed by the Government Legal Department and the full judgment can be found here.

The case has been widely reported, including on the BBC which you can view here.

High Court rules on in-term modification to public contract – Azeem Suterwalla and Antonia Fitzpatrick act for the successful defendant

On Friday 19 May, the High Court handed down judgment in James Waste Management LLP v Essex County Council [2023] EWHC 1157 (TCC). The case concerned whether an in-term modification to the defendant Council’s Integrated Waste Handling Contract was permissible under the Public Contracts Regulations 2015 (“PCR”).

Waksman J’s detailed judgment, dismissing James Waste’s claim, will be of wider interest to public procurement lawyers.

It clarifies important principles regarding when an in-term modification to a contract will be “substantial”, i.e. impermissible, within the meaning of Reg 72(8) PCR, first set out in the CJEU case Pressetext, and previously considered only in part by domestic Courts, in the Edenred litigation and Gottlieb v Winchester County Council [2015] EWHC 231.

Waksman J held that:

  • The “gateways” to modification under Reg 72(1) should be interpreted narrowly, because they are derogations from the general rule that in-term modifications are impermissible (Reg72(9)).
  • The fact that those gateways are derogations does not, however, entail that the authority invoking them bears any reverse burden of proof.
  • A “considerable” extension of scope (Reg72(8)(d)) should be interpreted in a common-sense way, notwithstanding that the gateways to modification are to be interpreted narrowly. Waksman J rejected James Waste’s submission that any extension with a value more than (or not much more than) the operative threshold for the engagement of the PCR was “considerable”.
  • For Reg 72(8)(b)(ii) to be satisfied, it is sufficient for a claimant to show that there is a real (as opposed to fanciful) prospect that another tenderer would have won the modified contract, because of the conditions newly introduced. It is not necessary, however, to show that the new conditions would have entailed the acceptance of a different tender.
  • For Reg 73(8)(c), requiring a change of economic balance of the contract in favour of the contractor, to be satisfied, the appropriate yardstick by which to judge a price increase is whether it constitutes “reasonable compensation”, irrespective of any change in the contract payment mechanism.

Waksman J also provided guidance on the “clear, precise and unequivocal” review clause gateway in Reg. 72(1)(a) and held that, in respect of Reg. 102, a civil penalty could not be made against a contracting authority where a declaration of ineffectiveness could not be made.

The full judgment is available here.

Monckton’s Azeem Suterwalla and Antonia Fitzpatrick acted for the successful Council.

Heathrow launches appeal against CAA price control decision

Heathrow has launched an appeal against the recent decision of the Civil Aviation Authority (the “CAA”) to modify the price control terms of Heathrow’s economic licence.

As an airport regulated by the CAA, Heathrow is subject to a price control on the amount which it can charge users for the facilities. This charge is decided by the CAA and normally reviewed every 5 years. The latest price control, for the period known as H7, contains the decision which is subject to appeal.

Permission to appeal has been granted by the Competition and Markets Authority (the “CMA”). The CMA is required by statute to determine the appeal by 17 October 2023.

British Airways, Delta Air Lines and Virgin Airways have also been granted permission by the CMA to appeal the CAA’s price control decision.

Daniel Beard KC, Josh Holmes KC, Philip Woolfe, Stefan Kuppen and Jenn Lawrence are advising Heathrow.

George Peretz KC is advising the CAA.

Rob Williams KC and Jonathan Lewis are advising the CMA.

Alfred Artley is advising British Airways.

Age Dispute JR: Jenn Lawrence succeeds in securing interim relief for unaccompanied child asylum seeker

R (on the application of BH) v LB Newham CO/804/2023

Jenn Lawrence is acting for BH, a young asylum seeker from Iranian Kurdistan. He claims to have entered the UK in September 2021 aged 16. However, in an age assessment the following year, the local authority attributed BH an age of 22. The local authority therefore decided that it owed no duties of accommodation and support to BH under the Children Act 1989 and passed him to the care of the Home Office.

This case is different from the majority of age dispute cases because, on his claimed age, BH was already 18 at the time of the interim relief hearing. However, the issue of age was of continuing relevance as it determined whether he was a “former relevant child” to whom the local authority continued to owe certain (albeit less onerous) duties under the Children Act 1989.

At the interim relief hearing in the Administrative Court, BH’s legal team was successful in securing an interim relief order which means that the local authority must continue to provide support and accommodation to BH as a “former relevant child” pending final determination of his judicial review claim.

In age disputes where the young person still claims to be a child, it is common that the local authority agrees to treat him or her as such pending final determination of the claim. It is much rarer to secure interim relief of this type in a case where the young person is already an adult.

To view a copy of the judgment, please click here.

Jenn Lawrence is instructed by Rory Matheson at Osbornes Law.

High Court allows irrationality challenge against the Secretary of State for Defence

In its judgment in R (MKA) v Secretary of State for Defence [2023] EWHC 1164 (Admin), the High Court granted an application for judicial review of a decision by the Ministry of Defence (“MoD”) on grounds or irrationality and breach of policy.

The Claimant, MKA, is an Afghan national who worked as a network engineer at British military camps and the British Embassy in Afghanistan. He applied to relocate to the UK under the Afghan Relocations and Assistance Policy (ARAP), in the light of his contribution to the British mission and the risk he now faces from the Taliban as a result. The MoD refused his application, finding that MKA was ineligible for relocation to the UK under ARAP. MKA challenged that refusal in the Administrative Court.

Allowing the claim, Foster J held that the decision “departed from an appropriate standard of public law decision-making … there is a disconnect between the materials produced on the Claimant’s behalf to the decision-maker and the reasoning of the review decision. The reasons show material errors were made and the conclusion cannot be safely justified.

She concluded that “the Claimant succeeds on the basis that the decision is not rationally defensible in that the reasons disclose material errors namely the mischaracterisation and/or ignoring of important material evidence as to the scope and importance of MKA’s contribution and the risks he was running.” The claim also succeeded on the basis that the Defendant misapplied and/or misunderstood his policy.

The MoD will now be required to reconsider the decision.

Nikolaus Grubeck and Alex Littlewood acted for the Claimant, instructed by Erin Alcock of Leigh Day.

Mercedes’ competition damages action knocked out on jurisdictional grounds

The High Court has found that Germany is the appropriate forum for Mercedes’ claim for damages relating to Hydraulic Braking Systems and after-series parts for cars.

Mercedes claimed damages against Continental and ZF in the English courts. Continental and ZF argued that Germany is the appropriate forum. Mr Justice Butcher accepted that the case should be tried in Germany.

The judgment is significant because, unlike under the Brussels Regulation, defendants in these kinds of cases are now able to make appropriate forum (“forum non conveniens”) arguments and the judgment provides insight into how the High Court will approach such issues in competition damages actions.

The judgment is available here.

Philip Woolfe appeared for Mercedes instructed by Willkie Farr & Gallagher LLP.

Josh Holmes KC and James Bourke appeared for the ZF Defendants instructed by Travers Smith LLP.

Judges’ data protection duties – High Court rules on judges’ obligations and the use of closed proceedings in subject access request claim

The High Court yesterday handed down judgment in X v. The Transcription Agency and Master Jennifer James [2023] EWHC 1092 (KB), dismissing in their entirety allegations that the Defendants had breached the claimant’s rights under the UK General Data Protection Regulation (“GDPR”) in refusing to provide personal data in response to a subject access request (“SAR”).

The Second Defendant is a High Court Master and a Costs Judge who was deciding cost proceedings in which the Claimant was a party. The First Defendant is a company providing court transcripts under a framework contract with the Ministry of Justice. During the costs proceedings, the Claimant made SARs to both Defendants for disclosure of his personal data. The Defendants declined to provide data in response, relying on the “judicial exemption” under paragraph 14 of Part 2 of Schedule 2 to the Data Protection Act 2018. This exemption has never previously been considered in any High Court or appellate judgment.

The High Court held the Defendants were entitled not to disclose the Claimant’s personal data, and that the judicial exemption should be interpreted broadly to cover all judicial functions given the strong public interest in safeguarding the independence of the judiciary. In reaching this conclusion, the Court rejected the Claimant’s reliance on internal guidance to the judiciary regarding their data protection obligations, which in some cases did not correctly reflect the position under the 2018 Act. The Court held that the guidance in some respects adopted too narrow a view of the scope of judges’ functions that would fall within the judicial exemption.

The High Court’s judgment also contains an important discussion of the procedure to be adopted by the court in claims concerning SARs. It concluded that the court has an implied power under the UK GDPR and 2018 Act to hold closed sessions where it can inspect personal data withheld by a data controller in the absence of the claimant – an approach which effectively mirrors the use of closed procedures in Freedom of Information Act 2000 appeals.

Alan Bates and Will Perry appeared for Second Defendant, Judge James (instructed by the Government Legal Department). Azeem Suterwalla also represented the Second Defendant at an earlier stage of proceedings.

High Court rules on scope of EU animal testing ban – Alan Bates represented the claimant

The High Court today handed down judgment clarifying the relationship between the EU Cosmetics Regulation (which regulates the safety of cosmetic products and ingredients), and the EU Regulation known as ‘REACH’ (which regulates chemicals generally). Both of those EU Regulations have been retained, with minor adaptations, as part of UK law after Brexit.

The Court was deciding a case brought by the campaign group Cruelty Free International (‘CFI’) relating to the Home Office’s change to its long-standing policy of not granting licences for proposed animal testing projects for assessing the safety of substances used predominantly or exclusively as ingredients in cosmetics (‘the Policy’).

The Policy was publicly adopted by the Home Office in 1998 and reiterated in the years since then. In 2015 the Home Office made it clear that the Policy was ‘an absolute ban’ on animal testing relating to cosmetic products and ingredients. The Home Office described the Policy as reflecting an ethical position that the causing of pain and suffering to animals cannot be justified for purposes relating to cosmetics.

After the Home Office had already adopted the Policy, EU cosmetics legislation (including the Cosmetics Regulation 2009) was made which included EU‑wide bans on both: (a) the carrying out of animal testing of cosmetics products and ingredients within the EU (“the Testing Bans”); and (b) the marketing in the EU of cosmetic products and ingredients that had been tested on animals after a specified cut-off date (“the Marketing Bans”).

In August 2021, however, it emerged from correspondence between CFI and the Home Office that the Home Office was no longer applying the Policy when considering licence applications for animal testing projects for generating data for satisfying requirements arising under the REACH Regulation.

The REACH Regulation includes requirements for manufacturers and importers of chemical substances to register those substances the European Chemicals Agency and to provide data relating to the ‘intrinsic properties’ of the substance including in terms of toxicity and other effects on human health and the environment. (The same requirements have been retained in UK law after Brexit, but with the Health and Safety Executive, rather than the European Chemicals Agency, being the regulatory authority.)

The practical effect of the Home Office no longer applying the Policy when considering applications for licences for animal testing projects for satisfying requirements arising under the REACH Regulation was that the Home Office was now willing to licence animal testing in Great Britain for purposes relating to cosmetic products and ingredients. This willingness was incompatible with the Policy.

The Home Office argued that it had had no choice but to stop applying the Policy. According to the Home Office, it was legally obliged by the REACH Regulation to be willing to grant licences for animal testing projects for satisfying requirements arising under that Regulation.

CFI brought a judicial review claim challenging the Home Office’s interpretation of the REACH Regulation and its legal effects. CFI also challenged the lawfulness of the Home Office’s conduct in ceasing to adhere to the Policy without modifying its published guidance or otherwise publicly announcing the change.

It emerged from disclosure and evidence provided by the Home Office during the court proceedings that the Home Office’s decision to resume granting licences for animal testing relating to cosmetic ingredients was taken in February 2019. There was thus a period of around 2½ years during which animal protection campaign groups and the public understood that the Policy remained in place (and, therefore, that animal testing for purposes relating to cosmetics was not being permitted in Great Britain), but the Home Office was in fact no longer applying the Policy.

In its judgment handed down today, the High Court (Mr Justice Linden) decided that the Home Office’s case that it was legally obliged to stop applying the Policy was wrong in law. The fact that an animal testing project was for generating data for satisfying a requirement arising under the REACH Regulation did not mean that the Home Office was legally required to grant – or even to be willing in principle to grant – licences permitting such testing. In other words, the Home Office could have chosen to maintain the Policy. It would therefore be lawful for the Home Secretary now to resume applying the Policy.

The Court also held, however, that the EU Testing Bans imposed by the Cosmetics Regulation do not prohibit animal testing carried out for the purpose of satisfying requirements arising under the REACH Regulation. Therefore, it was not unlawful for the Home Office to, in its discretion, choose to grant licences for such animal testing to take place. Further, the Home Office was not obliged by public law principles to inform CFI or the public that the Policy was no longer being applied. Therefore, CFI’s judicial review claim was dismissed.

A news article in the cosmetics industry journal Cosmetics Business reporting on the judgment (“UK government can reinstate policy ban on the animal testing of cosmetics, rules High Court judge”) is available here.

The full judgment is available here.

The Court has granted CFI permission to appeal to the Court of Appeal in respect of the interpretation of the REACH Regulation and its relationship with the Cosmetics Regulation.

Monckton barrister Alan Bates represented the claimant, CFI.

ICO fines TikTok for misusing children’s data

The Information Commissioner’s Office (“ICO”) has imposed a £12.7 million fine on TikTok for a number of breaches of data protection law, including failing to use children’s personal data lawfully.

The ICO estimates that TikTok allowed up to 1.4 million UK children under 13 to use its platform in 2020, despite TikTok’s own rules not allowing children of that age to create an account. The ICO found that TikTok had failed to obtain the requisite parental consent under Article 8 UK GDPR. It also fined TikTok for breaches of Articles 12 and 13 GDPR, for failing to provide appropriate information to people using the platform about how their data is collected, used, and shared in a way that is easy to understand. Without that information, users of the platform, in particular children, were unlikely to be able to make informed choices about whether and how to engage with it. The ICO further found that TikTok had breached Article 5 UK GDPR, by failing to ensure that the personal data belonging to its UK users was processed lawfully, fairly and in a transparent manner.

The ICO’s announcement is available here.

The decision has been widely reported on, including by CNN, NBC, the Financial Times, the BBC, CNBC, the Guardian, the Telegraph and the Daily Mail.

Nikolaus Grubeck and Jenn Lawrence have been advising the ICO.

Gerry Facenna KC, Nikolaus Grubeck and Alison Berridge instructed in multi-billion-pound ad tech lawsuit against Google

Gerry Facenna KC, Nikolaus Grubeck, and Alison Berridge, instructed by Hausfeld LLP, are representing technology journalist and campaigner Charles Arthur in proposed collective proceedings against Google.

Mr. Arthur has filed a claim in the Competition Appeal Tribunal, seeking an estimated £3.4bn in damages on behalf of over 200,000 publishers of websites and apps who were deprived of ad revenue as a result of abuses of dominance by Google.

Display ads are a form of advertising that are shown when a user visits a website or app. Google holds a dominant position in a number of markets for services which intermediate between publishers offering online display advertising and advertisers. Mr Arthur alleges that Google foreclosed those markets, excluding rivals and raising the costs to publishers.

Mr Arthur has secured third-party litigation funding, meaning affected UK publishers will not pay costs to participate in this legal action or have any financial risk in relation to Google’s costs.

The case has been covered in the media, including The BBC and The Global Competition Review. The claim website can be found here.