The Supreme Court (Lord Rodger, Lady Hale, Lord Mance) has rejected an application for permission to appeal which sought a reference to the European Court of Justice on the scope of Article 49 EC (the freedom to provide services, now Article 56 of the Treaty on the Functioning of the European Union).

The Court of Appeal (Rix LJ, Lloyd LJ, Sir David Keene) [2010] EWCA Civ 4 had dismissed an appeal against the decision of the Administrative Court refusing Judicial Review of various decisions of the Home Secretary concerning the application of Article 49 EC and the case law relating to “posted workers”.

The decision under appeal (R(Lee Ling Low and others) v Secretary of State for the Home Department [2009] 2 C.M.L.R. 22) was the lead case among 23 Judicial Review applications. A further 650 cases had been dealt with in the same manner by the Home Secretary.

The Court of Appeal decided against the Appellants both on the basis that Article 49 and the case law on posted workers could not be extended to cover the Appellants’ case and because the scheme which had been devised was an abuse of EC law. The scheme involved an Irish company entering into agreements to supply catering services to UK restaurant companies. The services were to be provided by third country nationals who were illegally present in the UK and had no right to reside in Ireland. An application was made on behalf of the Irish company, UK company and the third country nationals in this and hundreds of other cases, seeking confirmation of the workers’ status as “posted workers” of the Irish company under Article 49 EC and the principle of derivative rights. On the application of the “abuse” doctrine of EC law, the Court held,

“When it commenced its operations [the Irish appellant company] had no business in Ireland or the UK involving employees who were lawfully present or employed in either country. On its own evidence it has targeted the UK because of recent immigration law changes which have made it harder for Chinese restaurants here to comply with the law in their employment practices. It has therefore sought to put between the UK restaurant and its staff the fiction of an undertaking established in another EU member state of establishment purportedly using its article 49 freedom to bring or “post” its lawful employees to the UK for the purpose of its operations here. This is solely in order to attempt to translate those unlawfully present and illegally working in the UK into workers protected under Community law. The truth, however, is that the Irish company has no employees lawfully present as such in Ireland and has posted none to the UK. The whole thing is a charade…”

Ian Rogers appeared for the Home Secretary in all stages of the proceedings.

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Ian Rogers

Elisa Holmes successfully represented the OFT in persuading a reluctant court to grant an enforcement order preventing Peter Hall from using his consumer credit licence obtained from the OFT on the basis of a contravention of the Consumer Credit Act and the Regulations.

This landmark case concerned the first attempt by the OFT to use enforcement powers under Part 8 of the Enterprise Act 2002 (which implement the EU Injunctions Directive) in relation to contraventions of the Consumer Credit Act 1974 together with the Consumer Protection from Unfair Trading Regulations (“the Regulations”).

This is a historical and crucial decision for the OFT in relation to the enforcement powers available to it.

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Elisa Holmes

The nominations for these awards have been published, and we are pleased to announce that Valentina Sloane has been shortlisted for ‘Rising Star’ at the Taxation Awards 2010.

The winner will be announced on 20 May at the London Hilton Hotel, Park Lane.

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Valentina Sloane

The High Court has granted Sita leave to appeal to the Court of Appeal following their case against Greater Manchester Waste Disposal Authority (GMWDA) in which GMWDA were successful in striking-out Sita’s claim on the grounds that it brought was out of time.

The case arises out of the tendering process for a PFI project to provide waste disposal facilities for Greater Manchester.  The project, the largest of its kind to have been awarded in the UK, attracted a number of tenders, which were eventually reduced to two.  GMWDA selected Viridor Laing ahead of Sita.  The final contracts between GMWDA and Viridor Laing were delayed due to changes in the specification an due the credit crunch, but were finally agreed upon.  Sita argued that following this interruption, it should have been allowed, under statutory procedures to return to the tender process.  Sita also argued that GMWDA’s decision to select the most economic tender was flawed as Viridor, unlike Sita, was offered an opportunity to amend their bid.

GMWDA sought to strike out Sita’s case as the proceedings had been commenced outside the limitation period.

Sita have been awarded leave to appeal.

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Michael Bowsher QC
Philip Woolfe

Monckton barristers Peter Mantle and Philip Woolfe acted for HMRC in their successful defence of the first group litigation in VAT to reach trial.  This should end a group of claims valued at around £136 million. The Court of Appeal upheld HMRC’s arguments that the test claims should be dismissed in their entirety. Further, the court accepted submissions on behalf of HMRC that, although unnecessary to decide this appeal, the question of whether Community law requires compound interest to be paid in respect of overpaid VAT was important and difficult enough that a reference should be made to the Court of Justice of the European Union when a proper opportunity arises. The claimants have not sought permission to appeal.

This appeal determined the test claims in “VAT Interest Cars” Group Litigation. They concerned HMRC’s alleged liability to pay compound  interest on overpayments of VAT levied in breach of Community law from motor vehicle dealers in connection with “manufacturers’ bonuses” and the second-hand car margin scheme.  HMRC had already repaid the principal amount of the overpaid VAT together with simple interest.  The issue in these proceedings was whether the claimants were entitled to compound interest, rather than just simple interest, on the overpayments, first, as a matter of principle as a Community law right, and, second, in the light of the lapse of time since payment of the overpaid amounts. At first instance, the Claimants succeeded in persuading Henderson J. that Community law required the payment of compound interest in such circumstances. However, HMRC defeated the claims by successfully arguing that the claims were time-barred, and that the application of the limitation defences did not contravene Community law.

On appeal, the Court of Appeal upheld HMRC’s case on time-limits. In particular they rejected the Claimants’ arguments that Community law required the Limitation Act 1980 time limits to be disapplied or extended. The Court of Appeal was also persuaded by HMRC’s submissions that the question of compound interest was not clear as a matter of Community law, taking a more favourable view than the judge below, and considering a reference desirable..

Peter Mantle and Philip Woolfe represented the respondents, HMRC, alongside Jonathan Swift QC, First Treasury Counsel

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Peter Mantle
Philip Woolfe

The Court of Appeal has granted the Competition Commission permission to appeal against the Competition Appeal Tribunal’s findings that the participation in the market investigation into BAA’s supply of airport services in the UK of one member of the inquiry panel gave rise to apparent bias.

Ben Rayment is Junior Counsel to the Commission.

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Ben Rayment

The Court of Appeal has allowed an appeal by importers of sea fish and sea fish products into the UK against a levy imposed on their importations.  The Court held that the Sea Fish Industry Authority (Levy) Regulations 1995 were ultra vires the Fisheries Act 1981 in so far as they imposed a levy on sea fish and sea fish products which were landed outside the UK and then imported into the UK.  In addition, the Court held that the levy was contrary  to the Treaty on the Functioning of the European Union as a charge having effect equivalent to a customs duty, in breach of Articles 28 and 30.

Valentina Sloane was junior Counsel for the Appellants.

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Valentina Sloane

Monckton Chambers is pleased to announce that Nicholas Paines QC has been appointed a Deputy High Court Judge.

This appointment will enable Nicholas to sit in the Administrative Court as well as the Upper Tier of the Tax and Social Security Tribunals.

Nicholas Paines QC was called to the Bar by Gray’s Inn in 1978 and took Silk in 1997.  He is a member of the Bar of Northern Ireland and sits as a Recorder in the Crown Court and as a Deputy Judge of the Upper Tribunal.

Members and staff warmly congratulate Nicholas on this prestigious appointment.

 

Piers Gardner of Monckton Chambers represented Yukos Oil Company in the hearing on the merits of its application  to the European Court of Human Rights held in Strasbourg on 4 March 2010.  The Application concerns the lawfulness under the European Convention on Human Rights of the additional taxation of Yukos in Russia and the enforcement of the resulting liabilities of over €19.6Bn  and of the freezing of all Yukos’ assets, leading to its bankruptcy.  The enforcement involved the seizure and auction sale of Yuganskneftegaz, Yukos’ largest production subsidiary, which produced as much oil annually as Libya.  Yukos’ claim to just satisfaction exceeds $98 Bn, the largest claim by value before any court or tribunal.

The hearing can be viewed in the RSS feed from the website of the European Court of Human Rights.  Alternatively, please click here.

For further news relating to this case, please click here.

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Piers Gardner

Monckton Chambers warmly congratulates Andrew Macnab who has been elevated to the Attorney General’s A Panel of Treasury Counsel, along with Gerry Facenna and Anneli Howard, who have both been elevated to the B panel.  These elevations continue to illustrate our expertise in VAT/indirect tax litigation and water regulation, public, civil and European Community law litigation.  Chambers has a total of 19 panellists.

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Andrew Macnab
Gerry Facenna
Anneli Howard