GCR Awards 2018 – Daniel Beard QC nominated for Litigator of the Year

Monckton’s Daniel Beard QC is flying the flag for the English Bar at the forthcoming GCR Awards. The only barrister to be nominated, Daniel is one of eight lawyers shortlisted for “Litigator of the Year” award. The category is described as “a competition litigator whose superior technical skill, practical judgment and excellence in serving clients in court in 2017 demonstrate that he or she is among the very best in the field.

Daniel’s nomination is supported by the following credentials: “Daniel Beard QC at Monckton Chambers was lead counsel for Intel in its successful appeal before the European Court of Justice against a decision by the General Court to uphold a €1 billion abuse of dominance fine. The judgment was arguably the most significant EU competition ruling of 2017 and the most important abuse of dominance decision for several years, requiring EU enforcers’ infringement findings to account for evidence and effects. Beard was instrumental to the success of the case and those who attended the oral hearing commented on the excellence of his advocacy. He was also lead counsel for BT in its successful appeal before the UK Competition Appeal Tribunal, challenging the UK communications regulator Ofcom’s findings of market definition and imposition of intrusive remedies. It is believed to be the first time that a UK regulator’s market definition has been successfully challenged.”

GCR are inviting readers to vote online for the cases, law firms, lawyers, economists and enforcers they believe excelled in 2017.

The winners will be announced at the GCR 8th Annual Awards Ceremony on 10 April in Washington, DC.

Melanie Hall QC in landmark case for the timeshare sector

The Upper Tribunal has allowed an appeal in Fortyseven Park Street Limited v HMRC concerning the purchase of fractional interests in a luxury property in Mayfair comprising 49 self-contained apartments. The Tribunal endorsed the First tier Tribunal’s finding that the interests fell within the land exemption. However, it overturned the Tribunal’s finding that exemption from VAT was not available because the grants of the fractional interests were made in the hotel sector.

Melanie Hall QC acted for the Appellant. Click here for a copy of the judgment.

 

High Court rules that damages are inadequate for NHS claimants

The TCC has refused an application by Lancashire County Council to lift the suspension of a procurement relating to Children’s Services in Lancashire. The procurement is challenged by two local NHS Trusts – Lancashire Care NHS Foundation Trust and Blackpool Teaching Hospitals NHS Foundation Trust – who are the incumbent providers of the services. The contract has been awarded to Virgin Care Services Limited.

The judgment is notable in a number of respects:

  • The Court held that the constraint on the availability of damages to a “sufficiently serious breach” was a factor which could be taken into account in deciding whether to lift the suspension.
  • The Court held that damages were not an adequate remedy for the claimants given that the loss of the contract would require them to restructure their operations and would affect the way in which they provided other public services
  • The Court rejected an argument that the Court should lift the suspension because a contract extension would be illegal
  • The Court made observations confirming that contracting authorities should not unreasonably resist applications for specific disclosure of core evaluation and bid material

The Court ordered an expedited trial of the claim in April 2018.

Rob Williams acted for the successful Claimants instructed by Hempsons. The judgment can be found here.

Two of The Lawyer’s Top 20 Cases for 2018 feature four Monckton Chambers’ members

The Lawyer has published the Top 20 Cases due to be heard in 2018, which this year has “public interest cases take centre stage” and is described as “a plethora of headline-grabbers.” Four members of Monckton Chambers are highlighted in this year’s list relating to two cases:

Peugeot SA & Ors v NSK Ltd & Ors

Competition Appeal Tribunal,

16 April, six weeks

Peugeot has launched a claim for damages against automotive parts supplier NSK Ltd and others that will reach court in April, following a March 2014 European Commission decision that identified cartel behaviour. The commission found the defendants guilty of collusive behaviour relating to their supply of automotive bearings to claimant the Peugeot group between 2004 and 2011. The upcoming hearing will examine the remaining technical issue surrounding the ‘overcharge’ resulting from anti-competitive behaviour.

The defendants claim this overcharge was passed onto Peugeot’s customers and, as such, it is not their responsibility to pay further damages. There is also confusion as to the extent of Peugeot’s loss resulting from the defendants’ cartel behaviour, and whether it is possible to monetise that loss.

Monckton Chambers’ Josh Holmes QC and James Bourke, instructed by Macfarlanes partner Geoff Steward is acting for the fifth defendant, AB SKF

 

Liberty v Secretary of State for the Home Department & Ors

High Court,

27 February, two days

Liberty is seeking a judicial review of the Investigatory Powers Act 2016, otherwise known as the ‘Snooper’s Charter’, which was brought into law while Theresa May was home secretary in 2015.The bill granted the security services and the police powers to hack devices such as mobile phones and computers, and to retain data that might help them combat an increased terror threat. The legislation provoked an immediate backlash from civil rights campaigners who said it compromised citizens’ right to privacy and journalists’ ability to do their job.

The powers granted by the bill, including a requirement for telecoms operators to retain data, thematic hacking, the bulk interception of communications and the bulk acquisition of data, are (according to Liberty) incompatible with EU law and in contravention of the terms of the 1998 Human Rights Act.

Monckton Chambers’ Gerry Facenna QC and Michael Armitage, alongside Blackstone Chambers’ James Eadie QC and 11 KBW’s Julian Milford, are instructed by the Government Legal Department for the defendant, the Secretary of State for the Home Department & Ors.

Please click here to view the full article, if a subscriber of premium content.

CMA provisionally finds Fox/Sky deal not in the public interest

On 23 January 2018, the CMA published its provisional decision that Fox taking full control of Sky is not in the public interest due to media plurality concerns, but not because of a lack of a genuine commitment to meeting broadcasting standards in the UK.  The media plurality concerns identified mean that, overall, the CMA provisionally concluded that the proposed transaction is not in the public interest.  The public interest issues had been referred to the CMA by the Secretary of State for Digital, Culture, Media and Sport.  The CMA’s final view is due in summer 2018, when the matter will be referred back to the Secretary of State for a final decision on the merger.

The CMA provisionally found that if the deal went ahead, as currently proposed, it would be likely to operate against the public interest. It would lead to the Murdoch Family Trust (MFT), which controls Fox and News Corporation (News Corp), increasing its control over Sky, so that it would have too much control over news providers in the UK across all media platforms (TV, Radio, Online and Newspapers), and therefore too much influence over public opinion and the political agenda.  The MFT’s news outlets are watched, read or heard by nearly a third of the UK’s population, and have a combined share of the public’s news consumption that is significantly greater than all other news providers, except the BBC and ITN.  Due to its control of News Corp, the Murdoch family already has significant influence over public opinion and full ownership of Sky by Fox would strengthen this even further.  While there are a range of other news outlets serving UK audiences, the CMA provisionally found that they would not be sufficient to moderate or mitigate the increased influence of the MFT if the deal went ahead.

The CMA’s investigation also examined a range of evidence to understand whether Fox, Sky and the MFT have a genuine commitment to broadcasting standards in the UK. Here, it provisionally found that Fox taking full control of Sky was not likely to operate against the public interest.

Kassie Smith QC and Julian Gregory are acting for the Secretary of State in this matter.

George Peretz QC and Azeem Suterwalla are acting for Avaaz, who are objecting to the transaction.

This has been widely covered by the press: BBC, The Guardian, The Independent, The Times.

Supreme Court grants permission to appeal in SAE Education Ltd

On 22 January 2018, the Supreme Court granted permission to appeal against the Court of Appeal’s judgment in SAE Education Ltd v HMRC [2017] EWCA Civ 1116. Melanie Hall QC and Elizabeth Kelsey represent the Appellant and will argue that its supplies of university education are exempt from VAT because it is a college of a university.

To read the judgment please click here.

George Peretz QC gives evidence to the Trade Public Bill Committee

George Peretz QC will this afternoon be giving evidence to the House of Commons Public Bill Committee considering the Trade Bill.  The Trade Bill contains various measures designed to enable the UK to enter into trade agreements with third countries after Brexit, and sets up a new Trade Remedies Authority to administer an independent UK trade defence regime.  George has recently written a briefing for the UK Trade Policy Forum on the Government’s proposals for a trade defence regime.

“Threatened Lawyers: the end of the Rule of Law in Europe?” Piers Gardner speaks for CCBE in Strasbourg

On 24 January 2018 the CCBE is organising a Side Event during the Session of the Parliamentary Assembly of the Council of Europe (PACE) on: ‘Threatened Lawyers: the end of the Rule of Law in Europe?’ The Side Event is intended to draw attention to the proposed PACE Recommendation to the Committee of Ministers of the Council of Europe for a European Convention on the Profession of Lawyer. The proposal, which was adopted unanimously in December by the Legal Affairs and Human Rights Committee of PACE, will be voted on by the whole Assembly immediately after the Side Meeting. Piers Gardner will be one of the speakers, explaining why a binding Convention with an effective enforcement machinery, would be a positive step for the rule of law.

The proposed Convention has the strong support of all six of the UK’s Bar Councils and Law Societies which participate in the CCBE, together with the national Bars and Law Societies of 44 other States, together representing one million lawyers. Piers Gardner is the UK member of the CCBE’s Permanent Delegation to the European Court of Human Rights in Strasbourg.