Welcome clarification on emergency procurement powers

Michael Bowsher QC, Ewan West, and Anneliese Blackwood (with Sir James Eadie QC) acted for the Minister for the Cabinet Office, instructed by the Treasury Solicitor. Alfred Artley was also instructed on the Minister’s behalf at an earlier stage in the proceedings.

The facts

The facts of this case may be familiar. In late February 2020, the need for the Government to respond to the coronavirus pandemic was becoming ever more urgent and apparent, which required – in particular – accurate information on the public’s understanding of Covid-19 at the time. On 27 February 2020, Mr Alex Aiken, Executive Director for Government Communication, raised with his team the need for urgent focus group testing of Covid-19 issues, the results of which could be provided to No. 10 at 15.00 the following day. Public First – the interested party in this case – was already scheduled to conduct focus groups on the evening of the 27th, and it was suggested that these focus groups be re-tasked to conduct the necessary Covid-19 research.

Please click here to read the case note.

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 Miller’s Tale continues: A second victory for freedom of expression

The Queen on the application of Harry Miller (Appellant) v The College of Policing (Respondent)

Ian Wise QC and Michael Armitage acted for Mr Miller, instructed by Sinclairslaw. 

Overview

On 20 December 2021, the Court of Appeal (Dame Victoria Sharp P giving the judgment of the Court) held that certain parts of the College of Policing’s ‘Hate Crime Operational Guidance’ (“HCOG”) were contrary to Article 10 of the European Convention on Human Rights (“ECHR”).

The policy in question was that non-crime hate incidents were required to be recorded by police as such (against the named person allegedly responsible)  if the incident is subjectively perceived by the “victim or any other person to be motivated by a hostility or prejudice against a person who is transgender or perceived to be transgender” and irrespective of any evidence of the “hate” element.

Please click here to read the case note.

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.

A blow for collective redress in the UK? Lloyd v Google [2021] UKSC 50

Gerry Facenna QC and Nikolaus Grubeck appeared for the Information Commissioner, Robert Palmer QC and Julianne Kerr Morrison appeared for the Open Rights Group.

Those familiar with Competition law will be aware that collective proceedings before the Competition Appeal Tribunal are burgeoning. And it might have been hoped that the Consumer Rights Act 2015, and the recent flurry of collective proceedings that have been certified by the Tribunal following the Supreme Court judgment in Mastercard v Merricks [2020] UKSC 51, would have blazed a trail for collective redress in the United Kingdom – that where the Consumer Rights Act led, CPR Rule 19 might follow. There is a sore need in the UK for an effective mechanism for collective redress:

“…The mass production of goods and mass provision of services have had the result that, when legally culpable conduct occurs, a very large group of people, sometimes numbering in the millions, may be affected. As the present case illustrates, the development of digital technologies has added to the potential for mass harm for which legal redress may be sought.”
Lloyd v Google [2021] UKSC 50, para 67

The Supreme Court’s judgment in Lloyd v Google [2021] UKSC 50 has provided much needed clarification of the scope of the representative action procedure in CPR Rule 19.6, and for some types of claim the way is now clear for claimants to seek collective redress in the High Court. For other types of claim, however, and for data protection claims in particular the judgment has severely curtailed the prospect of the common law providing a solution.

Please click here to read the full case note.

See news post from 10th November here.

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.

It’s good to talk (about collective proceedings): the Competition Appeal Tribunal’s judgment in Le Patourel v BT

Ronit Kreisberger QC, Nikolaus Grubeck, and Jack Williams represent the successful class representative, Justin Le Patourel. The counsel team are instructed by Mishcon de Reya.

The judgment is available here.

Hot on the heels of the Competition Appeal Tribunal’s decision to certify most aspects of the collective proceedings in Merricks (a practical inevitability after the Supreme Court’s judgment in that case), the Tribunal has recently handed down its judgment on the contested application for a collective proceedings order (“CPO”) in Justin Le Patourel v BT Group Plc & British Telecommunications Plc. It becomes only the second competition law claim – and the first stand-alone claim – to be certified for pursuit by way collective proceedings.

Please click here to read the full case note.

See news post from 27th September here.

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.

 

R (Mathew Richards): Fordham J gives judgment on state authorities’ combined Article 2 and Article 8 operational obligations in a pollution context

R (Mathew Richards) v the Environment Agency (Walleys Quarry Limited, Interested Party) [2021] EWHC 2501 (Admin)

Ian Wise QC, Michael Armitage and Will Perry acted for Mathew Richards, instructed by Hopkin Murray Beskine. Antonia Fitzpatrick assisted on the case as a pupil.

References in square brackets are to paragraphs of the judgment.

The judgment is available here.

Overview

Fordham J handed down judgment in R (Mathew Richards) v the Environment Agency [2021] EWHC 2501 (Admin) on 16 September 2021, following an expedited, rolled up hearing on 18-20 August 2021. Richards is a landmark human rights case, concerning a vulnerable five-year-old boy’s Article 2 (right to life) and Article 8 (right to respect for private and family life) rights under the European Convention on Human Rights (“ECHR”), and his successful challenge to the Environment Agency (“EA”)’s failure to protect his respiratory health from being harmed by dangerous hydrogen sulphide emissions from a landfill, Walleys Quarry Landfill Site (“WQLS”), next to where he lives in Silverdale, Staffordshire.

Please click here to read the full case note.

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.

Service of the Claim Form: A Cautionary Tale

R (Good Law Project) v Secretary of State for Health and Social Care
(Pharmaceuticals Direct, Interested Party)
[2021] EWHC 1782 (TCC)

Ewan West acted for the Secretary of State, instructed by the Government Legal Department.

Imogen Proud is instructed by the Secretary of State for Health and Social Care in R (Good Law Project) v Secretary of State for Health and Social Care HT-2020-0002226/291/292/419, referred to in this case note.

The judgment is available here.

Overview

This judgment will be of interest to all public law and procurement practitioners, as it is concerned with valid service of the claim form in a judicial review context.

The High Court has ruled that when a claimant sends an unsealed claim form to a defendant prior to the court issuing the claim form, that defect (the fact that the claim form was unsealed) cannot be cured under CPR 3.10 so as to render service valid. CPR 3.10 applies only to “steps taken in the proceedings” and there are no extant proceedings prior to the issue of the claim form (see [45]).

Please click here to read the full case note.

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.

Direct award of Covid-related contract to Public First gave rise to apparent bias

R (Good Law Project) v Minister for the Cabinet Office [2021] EWHC 1569 (TCC)

Michael Bowsher QC, Ewan West and Anneliese Blackwood acted for the Minister for the Cabinet Office, instructed by the Government Legal Department.

Imogen Proud is instructed by the Secretary of State for Health and Social Care in R (Good Law Project) v Secretary of State for Health and Social Care HT-2020-0002226/291/292/419, referred to in this case note.

Overview

On 9 June 2021, the High Court (Mrs Justice O’Farrell) held that the decision of 5 June 2020 of the Minister for the Cabinet Office (Michael Gove MP) to award a contract for the provision of focus group and communications support during the Covid-19 pandemic (the “Contract”) to Public First Limited (“Public First”) gave rise to apparent bias. O’Farrell J held that the Claimant was entitled to a declaration that the award of the Contract was unlawful.

There are longstanding and personal and professional connections between Public First’s directors and owners and Dominic Cummings, who was then Chief Adviser to the Prime Minister and on whose recommendation the contract was awarded. The appearance of bias arose because of the Defendant’s “failure to consider any other research agency, by reference to experience, expertise, availability or capacity” [168].

Two further grounds of challenge did not succeed, namely (1) that there was no basis for making a direct award under an emergency procedure and (2) that the award of the contract for a period of six months was disproportionate.

Please click here to read the full case note.

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.

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.

Please click here to read the full case note.

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.

Please click here to read the case note.

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.

Please click here to read the case note.

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.