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.

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.

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.

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.

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.

 

 

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.

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.