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.

First Pharma Pay-for-Delay Cases: General Court upholds the Commission’s Lundbeck decision

On 8 September 2016, the General Court handed down a series of six much-anticipated judgments upholding the Commission’s 2013 Lundbeck decision, ruling for the first time that pharmaceutical pay-for-delay agreements breach EU competition law (cases T-472/13, T-460/13, T-467/13, T-469/13, T-470/13 and T-471/13).  So-called “pay for delay” agreements typically involve a patent settlement agreement including a payment by the patentee to the generics in exchange for a cessation of patent infringement proceedings and an agreement by the generic companies to stay out of the market for a period of time.

George Peretz QC acted for the European Commission in T-467/13 Arrow v Commission.

Ben Rayment acted for the European Commission in T-471/13 Xellia and Alpharma v Commission.

Ronit Kreisberger and Ligia Osepciu acted for Merck in T-470/13 Merck KGaA v Commission and are acting for Merck in the Paroxetine Appeal in the CAT.

James Bourke acted for the European Commission in Case T-472/13 Lundbeck v Commission, Case T-469/13 Generics (UK) v Commission and Case T-470/13 Merck KGaA v Commission.

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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.

NO EXCLUSIVITY FOR BRIDGING DATA UNDER ARTICLE 10(3) OF THE MEDICINES DIRECTIVE: R (Napp Pharmaceuticals v The Secretary of State for Health acting as The Licensing Authority) [2016] EWHC 1982

Ronit Kreisberger is a leading senior junior who has acted for a number of leading pharmaceutical companies including: Merck, Teva, Roche and Pfizer and is currently acting in the Lundbeck and paroxetine “pay for delay” cases in the UK and Luxembourg.

The Administrative Court has rejected Napp’s claim that bridging data submitted to the MHRA for its analgesic skin patch benefits from a period of data exclusivity under the Article 10(3) hybrid-abridged procedure.

Facts

This is a case about the interpretation of Article 10(3) of the Medicines Directive 2001/83/EC which provides that:

In cases where the medicinal product does not fall within the definition of a generic medicinal product as provided in paragraph 2(b) or where the bioequivalence cannot be demonstrated through bioavailability studies or in case of changes in the active substance(s), therapeutic indications, strength, pharmaceutical form or route of administration, vis-à-vis the reference medicinal product, the results of the appropriate pre-clinical tests or clinical trials shall be provided.

George Peretz QC acted for the MHRA.

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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.

There’s a Process for excluding low Bids – use it properly or don’t do it! Another successful Challenge against Award of a substantial Government Project

Mr Justice Colton, sitting in the High Court in Belfast, concluded last week that the Department for Regional Development was in breach of the Public Contracts Regulations 2006 in respect of the award of a contract to design and construct the A8 dual carriageway between Belfast and Larne. In short, he found that the Defendant’s decision to treat the tender submitted by the Plaintiff, FP McCann Ltd (and its JV partner Balfour Beatty), as an abnormally low tender was flawed, though not necessarily manifestly unreasonable. He held that an award of damages on the basis of loss of a chance was however the appropriate remedy for the breaches of Regulation 30 and has invited the parties to make further submissions as to quantum.

Michael Bowsher QC of Monckton Chambers led David Scoffield QC of the NI Bar Library for the Plaintiff, FP McCann Ltd.

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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.