In a much-anticipated decision, the High Court (Phillips J.) has delivered judgment in Sainsbury’s Supermarkets Ltd v. (1) Visa Europe Services LLC and ors. The Court dismissed Sainsbury’s Claim. This case follows two earlier conflicting decisions of the High Court and Competition Appeals Tribunal in respect of the same subject-matter: Asda Stores Ltd v. Mastercard Inc  4 C.M.L.R. 32 and Sainsbury’s v. MasterCard  CAT 11.
Littlewoods Limited & others v Commissioners for Her Majesty’s Revenue and Customs  UKSC 70
The Supreme Court has decisively and unanimously concluded that s78 Value Added Tax Act 1994 (“VATA 1994”) provides complete and adequate compensation for being kept out of the money by providing for simple interest on overpaid VAT. The words “if and to the extent that they would not be entitled to do so apart from this section” in s78(1) did not preserve common law rights to compound interest alongside s78, otherwise s78 “would effectively become a dead letter”. Those words only preserve other statutory rights to interest. Further, s78 does not violate EU law by denying taxpayers “an adequate indemnity”.
The Competition Appeal Tribunal’s decision in Balmoral Tanks v CMA could almost have been conceived as a case study. It contrasts an old fashioned cartel, involving organised price fixing and customer allocation, with “loose pricing talk” among competitors, and reminds us that modern competition law is well equipped to deal with both. The decision also takes a robust approach to the calculation of fines, declining to interfere with the CMA’s calculations, despite some apparently anomalous results.
This case note was first featured in the August 2017 issue of De Voil.
The Upper Tribunal’s decision in Revenue and Customs Commissioners v J3 Building Solutions Ltd  UKUT 253 (TCC) (“J3 BS”) perhaps belatedly seeks to clarify the law in relation to the zero rating of construction works to existing buildings although relevant statutory provisions changed in 1995. Rather than clarifying the law, it exposes a conflict in authorities which needs resolving.
Secretary of State for Work and Pensions v HY (RP)  UKUT 303 (AAC) (“HY”)
Alexandra Littlewood, Pupil Barrister, Monckton Chambers
In the latest round of judicial scrutiny of the legislation governing gender reassignment, the Upper Tribunal (“UT”) has held that the Gender Recognition Act 2004 is compatible with EU anti-discrimination law. Next up, the Court of Justice of the European Union (“CJEU”) will consider a similar question on a reference from the Supreme Court in MB v Secretary of State for Work and Pensions  UKSC 53.
HY concerned the rights of male-to-female transgender people to claim a state retirement pension at the lower pensionable age applicable to women. The UT held that the UK legislative scheme, which requires a male-to-female transgender person to hold a gender recognition certificate before claiming retirement pension on the basis that they are a woman, was compatible with EU law. Its conclusions turned on its interpretation of the equal treatment principle in Council Directive 79/7/EEC on equal treatment for men and women in matters of social security, and on the CJEU’s seminal judgment in Case C-423/04 Richards v Secretary of State of Work and Pensions.
Ben Lask was instructed by the Government Legal Department for the Secretary of State for Work and Pensions. Brendan McGurk was instructed by Arnold & Porter Kaye Scholer LLP for the claimants.
R (DA and others) v Secretary of State for Work and Pensions
References to paragraph numbers are references to the DA judgment.
On 22 June 2017, the High Court (Collins J) ruled that the application of the ‘Benefit Cap’ to lone parents with children under two years old is unlawful because it discriminates, without justification, against both those parents and their children.
Ian Wise QC and Michael Armitage were instructed (along with Caoilfhionn Gallagher QC of Doughty Street Chambers) by Hopkin Murray Beskine for the Claimants.
Hot on the heels of its first decision under the new collective proceedings regime, the Competition Appeal Tribunal has just handed down judgment following the first trial held under the “fast-track” procedure introduced as part of the Competition Appeal Tribunal Rules 2015: Socrates Training Limited –v- The Law Society of England and Wales  CAT 10. Whereas, in 399 BC, the City of Athens found the philosopher guilty of “failing to acknowledge the gods that the city acknowledges”, the Tribunal in this case held that the Law Society had, for part of the period covered by the claim, offended against the twin deities of UK competition law -the Chapter I and Chapter II prohibitions – by requiring law firms to purchase certain training courses exclusively from the Law Society, as a condition of membership of an accreditation scheme.
The Judgment will be of interest to all competition law practitioners, but especially to those advising SMEs. And not a hemlock in sight…
On 11 April 2017, the Supreme Court handed down its judgment on certain preliminary issues in the long-running challenge by ATK Energy EU Ltd (formerly, Energysolutions EU Limited) to the Nuclear Decommissioning Authority’s (“NDA“) award of a 14-year contract for the decommissioning of 12 Magnox power stations and two others (the “Magnox Contract“) to a consortium known as CFP. ATK was a member of the Reactor Site Solutions (“RSS“) consortium that made an unsuccessful bid for the Contract.
The High Court’s detailed judgment in Microsoft contains a number of points of real practical significance for competition practitioners that merit close consideration, particularly when considering the myriad of jurisdictional issues that can arise at the outset of claims for damages against multiple defendants allegedly involved in international cartels.
The Appellant, Susan Turley, was the long-term partner of the sole tenant of a four-bedroom house in Battersea Park. The tenancy was a secure tenancy under the Housing Act 1985 (‘the Act’), and the landlord was the London Borough of Wandsworth, the First Respondent. In 2010 there was a breakdown in the relationship between the Appellant and the tenant, and in December of that year he moved out of the property. He returned in January 2012 but by then he was seriously ill, and he died in March 2012. In his absence from the property the tenant did not give up the tenancy, leaving the Appellant and their younger children living there.
Ben Lask represented the Secretary of State for Communities and Local Government.
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.