Ocean Outdoor v London Borough of Hammersmith & Fulham [2019] EWCA Civ 1642

Philip Moser QC and Ewan West appeared on behalf of the Appellant.

A. Introduction

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.

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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.

Achilles Information Limited v Network Rail Infrastructure Limited [2019] CAT 20

Philip Woolfe and Stefan Kuppen appeared on behalf of the Claimant.

Preliminary

  1. 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.

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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.

Vodafone & Ors. v The Office of Communications

Philip Woolfe appeared on behalf of EE Limited

Preliminary

In Vodafone v Ofcom [2019] 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.

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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.

Merricks v Mastercard [2019] EWCA Civ 674: collective proceedings in competition law revitalised by the Court of Appeal

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.

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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.

Case note: SAE Education Ltd v Commissioners for Her Majesty’s Revenue and Customs

The Supreme Court’s judgment in SAE represents the end of a story that can be traced back to at least 2001, and the decision of Burton J in Customs and Excise Comrs v School of Finance and Management London Ltd [2001] STC1960 (‘SFM’). That case, like SAE, concerned whether a body making supplies of higher education was entitled to exemption from VAT under the provisions of the Value Added Tax Act 1994 (‘the VAT Act ‘) . In both cases, exemption turned on whether the supplying body could be categorised properly as a ‘college of a university’ for the purposes of the Act, under the so-called ‘education exemption’.

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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 Wellcome Trust Ltd v HMRC

In the recent case of The Wellcome Trust Ltd v HMRC [2018] UKFTT 599 the First-tier Tribunal (“FTT”) considered the interpretation of “a taxable person acting as such” in Article 44 of the Principle VAT Directive (“PVD”).

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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.

This case note was first featured in the December 2018 issue of De Voil.

Input Tax Under Post Brexit Postponed Accounting

There is some uncertainty is over the mechanism for input tax recovery on EU and non-EU imports of goods following Brexit. Although a welcome relaxation that VAT will not have to be paid at borders on EU and non-EU imports has been announced, how input tax recovery will work remains to be clarified.

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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.

This case note was first featured in the October 2018 issue of De Voil.

Zipvit v HMRC [2018] EWCA 1515

It is often easy to get VAT law wrong. Both parties to a transaction, each registered for VAT, take good advice and consider that a supply made for both sides’ business purposes is exempt. No VAT is charged or accounted for and no VAT invoice is issued. But, a year or two later, a court decides that the supply is standard-rated.

Unpicking the consequences of such mistakes has generated a rich seam of case-law, of which the Court of Appeal’s judgment in Zipvit (a single judgment given by Henderson LJ) is the latest instalment. The effect of Zipvit is that the key requirement is a VAT invoice, and without that, the purchaser is in trouble.

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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.

This case note was first featured in the August 2018 issue of De Voil.

Note on (1) Lancashire Care NHS Foundation Trust and (2) Blackpool Teaching Hospitals NHS Foundation Trust v Lancashire County Council

This case concerned the procurement by the Defendant of a public contract relating to the provision of Public Health Nursing Services for persons aged 0-19 in Lancashire. The Claimants were the incumbent providers. On the procurement (which was conducted under the light touch procedure and which therefore was required to comply with Regulations 74-76 of the PCR 2015) the contract was awarded to Virgin Care Services Ltd. In essence, the Trusts challenged the Authority’s evaluation of the bids, the scoring methodology applied, and the transparency of the award criteria. The TCC (Stuart-Smith J) found that the reasons given by the Authority for the scores awarded to the Claimants and to Virgin were insufficient in law. That finding was itself sufficient for the contract to Virgin to be set aside.

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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 right to deduct in Luxembourg – (VAT) world domination continues

Case C-159/17, Întreprinderea Individuală Dobre M. Marius, ECLI:EU:C:2018:161 (judgment of 7 March 2018)

Case C-533/16, Volkswagen AG, ECLI:EU:C:2018:204 (judgment of 21 March 2018)

Case C-8/17, Biosafe v Flexipiso, ECLI:EU:C:2018:249 (judgment of 12 April 2018)

Case C‑81/17,  Zabrus Siret SRL, ECLI:EU:C:2018:283 (judgment of 26 April 2018)

The Court of Justice (CJEU) has released four recent judgments concerning compatibility with EU law of national restrictions on the right to deduct input VAT. The judgments confirm the “dominant position” of the right to deduct in the common system of VAT.

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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.

This case note was first featured in the June 2018 issue of De Voil.