Important TCC judgment on interested parties’ costs

The comments made in this case note are wholly personal and do not reflect the views of any other members of Monckton Chambers, its tenants or clients.

Bechtel Ltd v High Speed Two (HS2) Ltd ((No.2) Costs of the interested party) [2021] EWHC 640 (TCC)

Michael Bowsher QC and Ligia Osepciu were instructed for Bechtel.

Anneliese Blackwood and Will Perry were instructed for BBVS, the interested party. Philip Moser QC was also instructed for BBVS at an earlier stage of proceedings.

In a judgment handed down on 24 March 2021, the TCC (Fraser J) has provided important guidance on the circumstances in which interested parties to public procurement litigation may recover their costs, including costs incurred to protect commercially confidential information and comply with confidentiality ring provisions.

Though the proceedings in question were brought as a Part 7 claim in the TCC, Fraser J appeared to indicate that the principles outlined apply equally when a claim is commenced in the Administrative Court by way of judicial review. The judgment also states that one of the legal principles outlined will be relevant to whether a person can be joined as an interested party to proceedings in the first place.

The TCC’s application, on the facts of the case, of the principles from the House of Lords’ judgment in Bolton MDC v Secretary of State for the Environment [1995] 1 WLR may also be of wider relevance to other areas of litigation, in particular non-procurement claims for judicial review.

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Supplying the answer: when are state-funded services “supply of services for consideration” for VAT purposes?

Melanie Hall QC and Elizabeth Kelsey acted for Colchester Institute Corporation (appellant), instructed by VATangles Consultancy.

Peter Mantle acted for HMRC (respondents), instructed by the General Counsel and Solicitor to HMRC.

In this case note, Jack Williams of Monckton Chambers analyses the recent decision of the Upper Tribunal in Colchester Institute Corporation v HMRC [2020] UKUT 0368 (“Colchester”). In summary, in overturning the First Tier Tribunal’s decision, the Upper Tribunal held that state-funding did have a sufficient link to the provision of education and vocational training provided by a college to constitute supply of services for consideration and economic activity. Nevertheless, HMRC was entitled to set-off input tax to reduce the taxpayer’s repayment claim. The implications of the case are likely to be profound: many businesses – educational and otherwise – supplying services that are funded by state agencies are now likely to argue that their provision of services does, in fact, constitute the supply of services for consideration and economic activity. That being so, there would be no need to account for output tax on those services and any accounted for with HMRC may be recoverable.

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The comments made in this case note are wholly personal and do not reflect the views of any other members of Monckton Chambers, its tenants or clients.

 

Court of Appeal delivers powerful judgment on consultation in R (Article 39) v Secretary of State for Education [2020] EWCA Civ 1577

Khatija Hafesji acted for  Article 39.

The facts

As the pandemic took hold in the early part of 2020, the Department for Education had fears for implications of widespread sickness on the ability of local authorities to provide care to vulnerable children.

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The comments made in this case note are wholly personal and do not reflect the views of any other members of Monckton Chambers, its tenants or clients.

First contested application to transfer proceedings from the CAT to the High Court

Sportradar AG and Another v Football DataCo Limited and Others [2020] CAT 25 (judgment available here).

Ronit Kreisberger QC, Alistair Lindsay and Ciar McAndrew are instructed by Sportradar.
Kassie Smith QC and Thomas Sebastian are instructed by Football DataCo.

In a judgment handed down on 2 December 2020, the President (Roth J) of the Competition Appeal Tribunal (‘CAT’) refused an application to transfer proceedings from the CAT to the High Court. This is the first time the CAT has been asked to consider a contested application to transfer a competition law claim out of the CAT.

Background to proceedings

The Claimants (‘Sportradar’) supply sports data and sports betting services to bookmakers, including live football match data. This data is used by bookmakers to offer ‘in-play’ betting (e.g. bets on who will score the next goal or win the next penalty). Sportradar competes with the Second and Third Defendants (‘Genius’) in this market.

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The comments made in this case note are wholly personal and do not reflect the views of any other members of Monckton Chambers, its tenants or clients.

Mastercard Incorporated and others v Walter Hugh Merricks CBE [2020] UKSC 51: a priceless victory for UK consumers in the Supreme Court

Paul Harris QC leads on behalf of the claimants in Walter Hugh Merricks CBE v Mastercard Inc.

Introduction

The UK’s current regime for collective competition law proceedings was introduced on 1 October 2015 by way of amendments to the Competition Act 1998 made by the Consumer Rights Act 2015. The reforms arose out of an April 2012 government consultation and a recognition that it was “rare for consumers and SMEs to obtain redress from those who have breached competition law” (see the extract at §20 of the Supreme Court’s judgment). Given that a key driver of the reforms was a desire to improve access to redress for consumers and small businesses, it may be regarded as a matter of some disappointment that not a single application for a collective proceedings order has yet been granted. Against that background, there can be little doubt that the long-awaited Supreme Court judgment in Merricks will reinvigorate the UK’s collective proceedings regime.

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The comments made in this case note are wholly personal and do not reflect the views of any other members of Monckton Chambers, its tenants or clients.

 

 

Rugby discipline in the time of coronavirus – a note on RFU v Barbarian FC players

Paul Harris QC and Michael Armitage, of Monckton Chambers, acted for the 8 Saracens players who faced charges, as well as former England international Richard Wigglesworth.

An Independent Disciplinary Panel appointed by the Rugby Football Union (RFU) has today given judgment in a high-profile case concerning breaches of COVID-19 protocols by 13 professional rugby players which led to the recent cancellation of the Quilter cup match between Barbarian FC and England. The Panel’s lengthy and detailed reasons address a number of matters of principle, and are therefore required reading for all those with a professional interest in sporting disciplinary matters.

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The comments made in this case note are wholly personal and do not reflect the views of any other members of Monckton Chambers, its tenants or clients.

Supreme Court: EU law principle of absolute res judicata declared acte clair

Secretary of State for Health and Others (Respondents) v Servier Laboratories Ltd and others (Appellants) [2020] UKSC 44

Jon Turner QC and Philip Woolfe acted for the Secretery of State for Health and Anor.

Daniel Beard QCJulian Gregory and Alexandra Littlewood acted for the Scottish Ministers and ors.

Laura Elizabeth John acted for the Welsh Ministers and ors.

In the proceedings below, in the Court of Appeal Robert Palmer QC also acted for the English, Welsh, Scottish and Northern Ireland health authorities, and at the first instance Josh Holmes QC acted for the Welsh health authorities.

In this important and unanimous judgment, the Supreme Court provides guidance on the EU law principle of absolute res judicata, namely the circumstances in which a European judicial decision is given dispositive effect which is binding not simply on the parties to the decision but on the world.

Background to the appeal

The appellant, Servier, is a pharmaceutical company which developed and manufactured a medicinal product called Perindopril that is used to treat cardiovascular diseases [2]. The appeal arises out of a long-running set of proceedings presently before the High Court, which concern whether Servier breached articles 101 and 102 TFEU / Chapter 1 and Chapter 2 of the Competition Act 1998 [4]. By these claims, the respondents (who are the claimants in the proceedings before the court) claim that Servier’s breaches of competition law delayed the entry of generic Perindopril onto the UK market which in turn caused the price of Perindopril to be higher than it would otherwise have been, and caused them financial loss [6].

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The comments made in this case note are wholly personal and do not reflect the views of any other members of Monckton Chambers, its tenants or clients.

The public/private divide in the Environmental Information Regulations 2004

Laura Elizabeth John appeared for the Information Commissioner

The laws are no longer fit for purpose”, reported the Information Commissioner to Parliament last year – “In the modern age, public services are delivered in many ways by many organisations. Yet not all of these organisations are subject to access to information laws.”

In a judgment that will be of interest to a number of entities, particularly in the transport and utilities sectors, the Upper Tribunal in IC v Poplar Housing Association [2020] UKUT 182 (AAC) has provided a boost to this analysis, upholding a narrow definition of “public authority” under Regulation 2(2)(c) of the Environmental Information Regulations (“EIR”) that will exclude many organisations from the scope of the regime.

Background

The case concerned whether a housing association, Poplar, was a “public authority” within the meaning of Article 2(2)(c) of the EIR. Poplar was a community benefit society set up with the transfer of some of the London Borough of Tower Hamlet’s housing stock. Poplar was registered with the Regulator of Social Housing as a private registered provider of social housing, and owned approximately 13% of the social housing in Tower Hamlets. As a private registered provider, Poplar had certain statutory powers not available to non-registered landlords, designed to allow it to manage tenants without the need to resort to evictions, for example through seeking injunctions against anti-social behaviour or seeking parenting orders or the grant of a family intervention tenancy.

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The comments made in this case note are wholly personal and do not reflect the views of any other members of Monckton Chambers, its tenants or clients.

Landmark Supreme Court Judgment on Interchange Fees

Sainsbury’s Supermarkets Ltd v Visa Europe; Sainsbury’s Supermarkets Ltd v Mastercard; and Asda, Argos & Morrisons (‘AAM’) v Mastercard

Mark Brealey QC appeared for Sainsbury’s, instructed by Mishcon de Reya and Morgan, Lewis & Bockius.
Jon Turner QCMeredith Pickford QC and Laura Elizabeth John appeared for Asda, Argos and Morrisons, instructed by Stewarts.
Tom Sebastian appeared for the European Commission.

On 17 June 2020, the Supreme Court (Lords Reed, Hodge, Lloyd-Jones, Sales and Hamblen) handed down a landmark judgment on whether certain fees which are paid by merchants to banks under the Visa and Mastercard payment card schemes breach competition law. The judgment finally settles years of litigation in the UK courts, and deep divisions in the rulings which had been given in the lower courts and tribunals. It is also the first judgment of the Supreme Court dealing with the Court of Appeal’s powers of remittal.

Background

Visa and Mastercard operate payment card schemes which enable consumers to pay retailers for their purchases using credit or debit cards. Under these schemes, there are four parties: card issuers; cardholders; merchants; and merchant acquirers (generally, these are the merchants’ banks). The card issuers issue payment cards to cardholders. Cardholders use the cards to purchase items from merchants. The merchants rely upon acquirers (usually banks) to provide them with a service which allows them to accept the card payment [9].

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The comments made in this case note are wholly personal and do not reflect the views of any other members of Monckton Chambers, its tenants or clients.

Gregor Fisken Limited v Mr Bernard Carl

Will Hooper of Monckton Chambers appeared on behalf of Gregor Fisken Limited.

The widely reported case of Gregor Fisken Limited v Mr Bernard Carl [2020] EWHC 1385 (Comm) involved one of the world’s rarest and most expensive cars, a $44m Ferrari 250 GTO Series 1 coupé, and its lost (and found) original gearbox. After a week-long trial in the High Court, it was held that the defendant seller was acting in breach of contract in failing to deliver the GTO’s original gearbox to the claimant buyer. The Court made an order for specific performance, requiring the seller to secure the delivery of the original gearbox to the buyer.

Factual background

The dispute concerned a contract for the sale of a rare Ferrari 250 GTO Series 1 coupé (“the Agreement”, “the GTO”). The Agreement defined the contracting parties as being, (1) as “seller”, Mr Bernard Carl (“the Defendant”), and, (2) as “buyer”, Gregor Fisken Limited (“the Claimant”) “as agent for an undisclosed principal”. However, the Claimant’s signature did not indicate that the Claimant was signing as agent.

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The comments made in this case note are wholly personal and do not reflect the views of any other members of Monckton Chambers, its tenants or clients.