It is perhaps apposite to say for a decision given on the first day of the Ashes Test cricket match, that the Supreme Court has bowled a googly in the Rank litigation. The outcome was determined by an argument neither party ran at any stage nor was picked up in the lower courts.
Edenred (UK Group) Limited (Appellants) and another v Her Majesty’s Treasury and others (Respondents)  UKSC 45, on appeal from  EWCA Civ 236: the Appellants unsuccessfully sought to prevent the modification of a public contract on the basis that it was in breach of EU procurement law
This appeal concerned a challenge to the decision by HM Treasury (‘HMT’) to use National Savings and Investments (‘NS&I’) to provide the necessary accounts services for HMRC to deliver the new government policy of tax-free childcare (‘TFC’). This required an amendment to a contract between NS&I and Atos IT Services Ltd (‘Atos’), NS&I having entered into an outsourcing contract for its own services with Atos in 2013. The Appellants argued that the proposed amendment of the contract between NS&I and Atos would involve the direct award of a public contract without a tender procedure contrary to EU and UK public procurement law. Each of the High Court, the Court of Appeal and the Supreme Court have held that there is no material variation of the existing public contract and no need for a further procurement process.
The concept of an “enterprise” has been at the heart of the UK’s idiosyncratic system of merger control from the passage of the Fair Trading Act in 1973 through to the present regime set out in the Enterprise Act 2002 (“EA02”). A consistent feature of the regime has been that it catches a transaction only if it involves two (or more) “enterprises” ceasing to be distinct. Leaving aside for present purposes the complexities of the notion of “ceasing to be distinct”, when a purchaser buys a collection of assets previously used to carry on a business, has it bought just a collection of assets, or has it bought an “enterprise”? If it has bought only assets, but not an “enterprise”, then the transaction lies outside the scope of UK merger control. So the question of what “enterprise” means is, often, a critical one on which turns the regulation of very major transactions.
In this article for the Bloomberg BNA’s Viewpoint series, Raymond Hill examines the Court of Justice’s line of case law on single/multiple supplies following on from the Tellmer decision – and particularly the recent judgment in Wojskowa.
Raymond Hill is a barrister at Monckton Chambers in the U.K. and may be contacted by email at email@example.com. He was counsel for the U.K. before the Court of Justice in the Purple Parking, Field Fisher and Wojskowa cases. The views he expresses are his own and not necessarily those of the U.K. tax authorities or members of Monckton Chambers.
The Court of Appeal has upheld Littlewoods’ claim for adequate indemnity by way of compound interest. HMRC however succeeded on Littlewoods’ appeal against Vos J’s earlier decision1 that restitution claims are excluded by sections 78 and 80 Value Added Tax Act 1994 (“VATA”). This may be relevant to other claims for compound interest where High Court proceedings have not been issued.
Lady Justice Arden DBE, who gave judgment for their lordships dealt with a series of issue. The following is a summary of each of the issues and the Court’s conclusion on each.
Mr Justice Newey, sitting in the Upper Tribunal, dismissed HMRC’s appeal against Southern Cross Employment Agency Limited’s victory in the First-tier Tribunal that HMRC could not resile from an agreement to repay VAT. Mr Justice Newey held that:
Section 80(7) Value Added Tax Act 1994 did not bar HMRC from entering into a binding agreement with Southern Cross. HMRC could enter into such an agreement under their care and management power.
The agreement HMRC entered into was not ultra vires and was not void.
The FtT was entitled to find that a compromise agreement had been formed between Southern Cross and HMRC on the facts and that such finding could not be disturbed.
Both the FtT and the Upper Tribunal have in essence held that although the initial claim for repayment was made under s80 VATA, HMRC had power to enter into a compromise agreement of that claim and the compromise meant that s80(4A) could not bite.
Peter Mantle acted for Southern Cross Employment Agency Limited.
The Administrative Court’s decision last month in R (on the application of Mahoney) v Secretary of State for Communities and Local Government  EWHC 589 (Admin) considered whether the system of ‘home loss payments’ in the Land Compensation Act 1973 discriminates against gypsies and Irish travellers. Lindblom J found for the Secretary of State, holding that, while the act treats those who live in ‘bricks and mortar’ houses differently from those who live in caravans, this does not amount to discrimination under article 14 of the European Convention on Human Rights when read with article 8 and article 1 of the First Protocol.
On 12 February 2015 the Court of Appeal handed down his Judgment in Investment Trust Companies (in liquidation) v HMRC  EWCA Civ 82. The Court delivered a unanimous judgment upholding the March 2012 decision of Henderson J in some respects and overturning it in others.
The High Court’s decision last month in R (Gallaher and Somerfield) v Competition and Markets Authority  EWHC 84 (Admin) considered the way in which the OFT conducted its ‘Early Resolution’ settlement negotiations with parties who were subject to its tobacco investigation. The judgment of Collins J (and the outcome of the appeal to the Court of Appeal) may have important implications for the approach of regulators including the CMA to settlement negotiations with regulated entities.
The First-tier Tribunal’s decision in Rio Tinto London Ltd v The Commissioners for Her Majesty’s Revenue & Customs  FTT 1059 (TC) is principally concerned with VAT repayments and the inter-relation between claims under s80 Value Added Tax Act 1994 (“VATA”) and adjustments under regulation 38 of the Value Added Tax Regulations 1995 (“reg 38”). It contains useful commentary on the circumstances in which credit notes can be issued. Perhaps most interestingly it illustrates how economic reality – which determined the VAT outcome – was established in the face of provisions in documents, actual payment of a significant amount and recognition of the payment in the accounts, all of which were essentially disregarded in determining the VAT result. The case is not concerned with the abuse of rights doctrine.
This case note was first featured in the February 2015 issue of De Voil.