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.
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 .
Will Hooper of Monckton Chambers appeared on behalf of Gregor Fisken Limited.
The widely reported case of Gregor Fisken Limited v Mr Bernard Carl  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.
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.
Peter Mantle acted for Royal Opera House, instructed by Crowe UK LLP
Supplies of theatre and museum tickets fall within the ‘cultural exemption’ under Schedule 9 of the VAT Act 1994. However, the business model of many cultural venues does not rely solely on income from ticket sales. As well as funds from public grants and endowments, many venues also make taxable supplies of food and drink at on-site bars and restaurants, or sell other merchandise too. On the input side, venues will have paid VAT on the costs of staging productions or putting on exhibitions. The present appeal concerned whether the Royal Opera House’s production costs fell to be attributed solely to its exempt sales of tickets and taxable sales of programmes, or alternatively to a wider range of taxable supplies, principally its bar and restaurant offerings.
The opera house (“ROH”) relied on recent European caselaw to argue that in economic terms there was a direct and immediate link between its production costs and catering supplies. ROH succeeded before the First-Tier Tribunal on that basis (see  UKFTT 329 (TC)), but the Upper Tribunal (Morgan J and Judge Timothy Herrington) have now overturned that decision.
On 5 May 2020, the German Federal Constitutional Court (BVerfG) held that the European Court of Justice (ECJ) had exceeded its jurisdiction by handing down the 2018 judgment in Case C-493/17 Weiss. As the ECJ judgment was ultra vires, the German Court concluded that it was not binding in Germany. This is the first time that a German court refuses to apply the principle of supremacy of EU law.
Unlike indirect taxation, direct taxation is not harmonised at EU level and in principle Member States are free to administer their direct tax systems as they wish. However, under EU law this freedom is not unlimited. Fifteen years ago, the judgment in Marks & Spencer Plc v Halsey (Inspector of Taxes) (C-446/03) EU:C:2005:763 held that tax rules preventing a company claiming relief for losses incurred by a non-resident subsidiary contravened Article 49 TFEU and the right to freedom of establishment where equivalent losses would have been deductible if incurred by a resident subsidiary. Although the Court had accepted that a restriction of this kind could be objectively justified in some circumstances to maintain fiscal autonomy, avoid double counting of losses and prevent tax avoidance, it found on the facts the measures there were disproportionate. Unsurprisingly, multinational companies have subsequently sought to extend the Marks & Spencer principle to other situations so as to benefit from cross-border group relief more generally; the present case represents the latest (unsuccessful) attempt to do so.
The Queen on the application of Harry Miller v (1) The College of Policing and (2) The Chief Constable of Humberside
Ian Wise QC acted for Mr Miller throughout the proceedings, instructed by Sinclairslaw. Michael Armitage assisted Ian in preparing the detailed legal submissions for the hearing.
On 14 February 2020, the High Court (Mr Justice Julian Knowles) held that Humberside Police had disproportionately interfered with the rights of free speech of the Claimant, Harry Miller, under Article 10 of the European Convention on Human Rights (“ECHR”).
Mr Miller had posted a number of tweets which a member of the public had complained were “transphobic”. Humberside Police recorded this as a “non-crime hate incident” and warned Mr Miller that he may face criminal prosecution if he continued to post similar tweets. The High Court, in an emphatic defence of freedom of expression in a democracy, ruled that the Claimant’s tweets formed part of a legitimate public debate about proposed reforms to the Gender Recognition Act 2004.
In a major judgment handed down by the Court of Appeal last week, Coulson LJ has given important guidance on the scope of the Concessions Contract Regulations 2016 (“the CCRs”), the extent of the land transaction exemption, and the requirements for claimants to show ‘sufficiently serious breach’ in procurement claims more generally. This was the first case to consider the CCRs in such a level of detail, and – in a ruling likely to be welcomed by public authorities – the meaning of ‘concession contract’ for the purposes of the Regulations is construed relatively narrowly, with the land transaction exemption given a conversely generous interpretation. The judge’s comments on the hurdles which a claimant must surmount to be awarded Francovich damages for breaches of procurement law also have a notably pro-defendant slant.
Achilles Information, a provider of ‘supplier assurance’ to the rail sector and other industries, successfully challenged Network Rail for breaches of both Chapter I and Chapter II of the Competition Act 1998. The Claim related to the terms of certain authorisation schemes operated by Network Rail, which authorised suppliers providing services on Network Rail infrastructure. The terms required, as a condition of authorisation,that suppliers obtained assurance from Network Rail’s chosen provider,RISQS. The decision underlines that public-sector entities need to be alert to the potential application of competition law even where they are pursuing public interest objectives.
In Vodafone v Ofcom  EWHC 1234 (Comm), the Commercial Court dealt, for the first time, with an important point in the law of unjust enrichment concerning the counterfactual yardstick against which restitution should be measured.
On 16 April 2019, the Court of Appeal allowed Mr Merrick’s appeal from the Competition Appeal Tribunal’s (“CAT”) refusal to grant a collective proceedings order (“CPO”). The CAT’s order is, accordingly, set aside and the application for certification is remitted to the CAT for a re-hearing.
Given the infancy of the collective actions regime, the Court of Appeal’s judgment is of significant importance. This case note discusses the judgment and summarises its implications for those bringing and defending collective proceedings.