Supreme Court rules no requirement to issue claim within standstill period, but damages only available for “sufficiently serious” breach

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.

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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.

Ewan West acted for ATK Energy EU Ltd throughout the Magnox Contract litigation and appeared for ATK before the Supreme Court.

Philip Moser QC acted for the NDA in the Court of Appeal in respect of the Liability judgment  and the Sufficiently Serious judgment.

Michael Bowsher QC and Ligia Osepciu acted for Bechtel Management Company Limited and Philip Moser QC acted for the NDA in the Bechtel claim.

Microsoft Mobile (OY) Ltd – v – Sony Europe Limited & Others

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.

Ms. Laura Elizabeth John (instructed by Mishcon de Reya LLP) for Microsoft Mobile OY (Ltd).

Mr. Daniel Beard QC (instructed by Allen & Overy LLP) for Samsung SDI Co Ltd.

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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.

R (on the application of Turley) v Wandsworth LBC & The Secretary of State for Communities and Local Government

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.

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BVI: Court of Appeal confirms foreign lawyer fees are unrecoverable

John Shrimpton et al v. Dominic Scriven et al, BVIHCMAP2016/0031

Summary

The Court of Appeal of the Eastern Caribbean Supreme Court (the ‘Court’) has upheld a recent ruling that the common law right to claim the fees of foreign lawyers as a disbursement of BVI counsel was abrogated by s. 18(3) of the Legal Profession Act 2015 (‘LPA’). As a consequence, the current position is that the fees of foreign lawyers are no longer recoverable in proceedings conducted in the BVI, regardless of whether the foreign lawyer’s activities were ‘reasonable and necessary’ for a foreign lawyer to carry out in relation to the BVI case.

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Passports, the prerogative, and process rights: XH & AI v Secretary of State for the Home Department [2017] EWCA Civ 41

Summary: The appellants’ British passports were cancelled on the grounds that they were suspected of intending to travel abroad in order to get involved with terrorism-related activity. The Court of Appeal dismissed the appellants’ argument that the Secretary of State’s exercise of purported power under the Royal Prerogative to cancel their passports was unlawful as the power had, in their submission, been excluded or limited by the Terrorism Prevention and Investigation Measures Act 2011. Instead, the Court held that such a prerogative power continues to exist. The Court of Appeal also dismissed arguments made on behalf of XH that the exercise of such power was, in any event, unlawful on the basis of EU law norms of procedural fairness. This case note discusses the first ground of appeal relating to the Royal Prerogative.

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Daniel Beard QC, Nikolaus Grubeck and Julianne Kerr Morrison were instructed by Hickman and Rose and acted on behalf of AI.

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 (on the application of Miller and others) v Secretary of State for Exiting the European Union

In its landmark ruling, going to the heart of the United Kingdom’s unwritten constitution, the Supreme Court has upheld the decision of the Divisional Court and held, by a majority of 8:3, that a formal notice of withdrawal pursuant to Article 50(2) of the TEU can only lawfully be given with Parliament’s prior authorisation: ministers do not have the power to give such a notice unilaterally through the exercise of prerogative power without primary legislation.  The Court also ruled that the consent of the Northern Ireland Assembly is not a legal requirement before the relevant Act of the UK Parliament is passed.

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Anneli Howard was instructed by Mischcon de Reya to represent Mrs Gina Miller, the First Respondent.

Gerry Facenna QC, David Gregory, and Jack Williams were instructed by Bindmans LLP on behalf of the Pigney Respondents/Interested Parties (known as “The People’s Challenge”).

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.

 

No to Bulk Data Retention: The Watson Case in the CJEU

Days before Christmas, the Court of Justice of the European Union (‘CJEU’) clarified EU law on the bulk retention by governments of communications data. Communications data does not include the content of a communication but does reveal the other information including the sender, recipient, time, place and method of communication. The Grand Chamber ruled that “general and indiscriminate” retention of electronic communications data for the purpose of fighting crime is unlawful. National legislation is also precluded which governs the protection of and access to stored communications data where (i) the objective pursued is fighting crime but is not restricted solely to fighting serious crime, (ii) access is not subject to prior review by a court or independent administrative authority and (iii) there is no requirement that the data be retained within the EU.

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Daniel Beard QC and Gerry Facenna QC acted for the United Kingdom Government.

Azeem Suterwalla (instructed by Bhatia Best Solicitors) acted for Mr Brice and Mr Lewis.

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 first interim relief application under new CAT Rules: Flynn Pharma Limited v Competition and Markets Authority [2017] CAT 1 (19 January 2017)

By its Decision of 7 December 2016 the Competition and Markets Authority (“CMA”) found that Flynn Pharma’s prices (and those of its supplier Pfizer) for phenytoin sodium capsules in the UK were excessive and therefore an abuse of a dominant position contrary to section 18 of the Competition Act 1998 (“CA98”). Phenytoin is an off-patent drug used to treat epilepsy. Phenytoin capsules were marketed by Pfizer under the brand name Epanutin until 2012. In 2012 Pfizer transferred its marketing authorisations to Flynn as part of new arrangements for the distribution of the drug. Flynn then ‘de-branded’ the product the effect of which was to remove it from price regulation under the Pharmaceutical Price Regulation Scheme (“PPRS”). Once outside the PPRS the cost of the drug to the NHS increased eye-catchingly from approximately £2 million in 2012 to £50 million in 2013, £42 million in 2014 and £37 million in 2015, a period during which the number of users was declining. The Decision contained directions that that Flynn (and Pfizer) should reduce their prices of Phenytoin capsules with effect from 23 January 2017.

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Ronit Kreisberger acted for Flynn Pharma.

Rob Williams acted for the Competition and Markets Authority.

Brendan McGurk acted for the Department of Health.

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.

 

FISHER DIES ON THE THAMES: THE COURT OF APPEAL’S JUDGMENT IN LONGRIDGE ON THE THAMES v. HMRC [2016] EWCA Civ 930

On 1 September, the Court of Appeal (Arden and Tomlinson LJJ and Morgan J) handed down its judgment in Longridge on the Thames.  The judgment overturns a series of cases on the meaning of “economic activity” and “taxable person” dating back to CEC v. Lord Fisher [1981] STC 238, and significantly narrows the ability of charities and other third-sector bodies to claim that their supplies fall outside the scope of VAT as not representing economic activity.

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This case note was written by George Peretz QC and first published in De Voil.

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.

ARTICLE 50 JUDGMENT: KEY POINTS

” The High Court’s ruling in R(Miller and others) v Secretary of State for Exiting the EU (the judgment) is, without doubt, the most important constitutional law judgment for many years. The following are the key points.”

Gerry Facenna QC and Jack Williams acted for Grahame Pigney & Others. Anneli Howard acted for Gina Miller.

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The Comment 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.