The Court of Appeal today dismissed a challenge by Vtesse Networks Ltd to the way its fibre-optic network is valued for the purpose of levying Business Rates.

The Valuation Office Agency had valued Vtesse’s network by reference to the valuations which had already been ascribed to comparable fibre-optic networks, but not by reference to the valuation which had been ascribed to BT’s ubiquitous national network (which includes a substantial fibre-optic component).  The Lands Tribunal decided that, under principles of UK ratings law, Vtesse’s network was not usefully comparable with that of BT, and the Valuation Officer’s valuation should therefore stand.  Vtesse appealed to the Court of Appeal, arguing that EU Telecoms Directives required that Vtesse’s network be valued in a way that took account of the valuation ascribed to BT’s network, lest competition be distorted.  In that regard, Vtesse sought to show that it was paying substantially more in rates per metre of fibre-optic strand pair than was its competitor, BT.

Dismissing the appeal, the Court of Appeal held that the UK ratings regime pursued the same object of equal treatment as lay behind the Directives.  The Lands Tribunal was applying well established UK valuation principles and, in finding that Vtesse’s network was not usefully comparable with that of BT for valuation purposes, was making a decision within the scope of its expert valuation judgement.  Against that background, Vtesse could not establish any incompatibility with the Directives, and there were therefore no good grounds for requiring the Lands Tribunal to revisit its decision.

Monckton barristers Christopher Vajda QC and Alan Bates acted for the Respondent, the Valuation Officer.

Please click below for more information on:
Alan Bates

The Competition Appeal Tribunal has decided that it will hear all appeals against the OFT’s decision in the construction investigation separately.

On 21 September 2009, following a five year investigation into the construction industry, the OFT imposed financial penalties totalling £129.2 million on 103 construction companies for having engaged in cover pricing.   Twenty five of those companies have appealed to the Tribunal.  Six of them have appealed both liability and penalty.  The remainder have appealed in relation to penalty only.

The Tribunal is faced with the largest set of appeals that it has ever had to manage.  It considered at a hearing early this week (and following written submissions from all parties to the appeals) “how to manage the appeals effectively, and by reference to what timetable”.

The Tribunal decided that “in order to ensure that the appeals can be disposed of fairly and within a reasonable time, ensuring that proper attention is paid to each of the cases”, each case will need to be heard separately.  The Tribunal will set up three panels to hear the cases in June and July of this year.

Members of Monckton Chambers are acting for a number of the appellants and for the OFT.

• Paul Lasok QC and Josh Holmes (instructed by DLA Piper UK) for ISG Pearce Limited.
• John Swift QC and Kassie Smith (instructed by Pinsent Masons) for Galliford Try Plc.
• Christopher Vajda QC and Ronit Kreisberger (instructed by CMS Cameron Mckenna) for Ballast Nedam NV.
• David Unterhalter SC, Daniel Beard and Alan Bates (instructed by the General Counsel, Office of Fair Trading) for the Office of Fair Trading.
• George Peretz (instructed by DLA Piper UK) for Renew Holdings Plc, Allenbuild Limited, Robert Woodhead (Holdings) Limited and Robert Woodhead Limited.
• Paul Harris (instructed by Nabarro) for Corringway Conclusions plc.

Please click below for more information on:
Paul Lasok QC
John Swift QC
David Unterhalter SC
Paul Harris QC
Daniel Beard QC
Kassie Smith QC
George Peretz
Josh Holmes
Alan Bates

The Court of Appeal today held that agricultural exporters that abused their rights under a CAP subsidy scheme should have to pay a substantial penalty.

The scheme in question had special provisions that helped small exporters.  In order to meet the criteria of that scheme, a large exporter decided to get seven of its subsidiaries to make separate claims rather than make one large claim itself.  Although the terms of the scheme permitted it to do that, it was held by the High Court that that tactic was an “abuse of right” and that the seven separate claims should be disallowed.  In the Court of Appeal, the exporter argued that it should not also have to pay a penalty for making a claim to which it was not entitled.   However, the Court of Appeal agreed with DEFRA’s submissions that there was nothing in the EU case-law on “abuse of right” that stopped a penalty being imposed in this case: the relevant EU Regulation made it clear that a penalty was payable whenever it made a claim to which it was not entitled, even where there was no fault on the part of the exporter and even where the claim complied with the strict terms of the scheme.

The case is an interesting contribution to the developing EU principle of “abuse of right”, which has recently become particularly important in the VAT field as well as in other areas of EU law.

George Peretz represented DEFRA in the Court of Appeal.

To view the judgment, please click here.

Please click below for more information on:
George Peretz

The Court of Appeal has today handed down its judgment in the BSkyB/ITV litigation,  The outcome is is that the Competition Commission and the Secretary of State for Business Enterprise and Regulatory Reform (both represented by teams from Monckton Chambers) have succeeded on all of the various appeals and cross appeals which were live before the Court.

The case arose from the acquisition by British Sky Broadcasting plc (Sky) in November 2006 of 17.9% of the issued share capital of ITV plc.

The acquisition was referred to the Competition Commission by the Secretary of State under the public interest provisions of the Enterprise Act (the first reference of its kind),  A Competition Commission investigation concluded that a relevant merger situation had been created leading to a substantial lessening of competition.  The Commission recommended that Sky be required to divest itself of enough shares to reduce its holding to below 7.5%.  The Commission however concluded that the merger was not likely to operate against the public interest on grounds relating to media plurality.  The Secretary of State agreed with the Commission’s conclusions on media plurality.

Before the CAT, Sky challenged the Commission’s findings on the competition issues and remedies, and Virgin challenged the findings of the Commission and the Secretary of State on media plurality, focussing on a question of statutory interpretation under the new regime for media mergers. The Competition Appeal Tribunal rejected Sky’s challenge but upheld that of Virgin.

The Court of Appeal has considered the findings of the CAT on both sets of issues with Sky appealing on both competition and plurality grounds, and the Commission and the Secretary of State also appealing on the plurality issue.

In a judgment given by Lloyd LJ, Sky’s appeal against the CAT’s judgment on competition issues was rejected, but the appeals of the Commission, the Secretary of State and Sky on the media plurality issue were upheld.  The result is that the decisions of the Commission and the Secretary of State on competition issues have been upheld and their decisions on plurality have been reinstated.

Paul Lasok QC and Elisa Holmes represented the Secretary of State (now, for Business Innovation and Skills)

John Swift QC, Daniel Beard and Rob Williams represented the Competition Commission

Please click below for more information on:
Paul Lasok QC
John Swift QC
Daniel Beard QC
Rob Williams
Elisa Holmes

The Defendant, Buying Solutions commenced a competitive public procurement to establish a framework agreement for the provision of IT goods and services. The Claimant B2Net Limited, an IT storage company providing companies with hardware and software to improve IT performance, submitted its response with a view to being selected for an invitation to tender (“ITT”).

B2Net Limited was informed that they had been unsuccessful but argued that they had unfairly lost marks because not all their reference contracts involved their acting as prime contractor.

The Judge, Tugendhat J., reviewed the evidence as to the losses that would be suffered if he were to grant of an interim injunction and decided that on balance no interim injunction should be granted.

The Claimant’s application was dismissed.

Michael Bowsher QC and Robert Palmer represented the Defendant, HM Treasury

Please click below for more information on:
Michael Bowsher QC
Robert Palmer

Anneliese Blackwood has just returned to chambers after completing a Pegasus scholarship to Australia.  Anneliese spent the first few weeks in Sydney where she worked with Nicholas Owens, a barrister at Seven Wentworth Barristers’ Chambers. She then spent several weeks with the law firm Mallesons Stephen Jaques in their Melbourne office.  Whilst she was there she worked with partner Natalie Hickey and her team on the Telstra v PDC case which raised the question of whether copyright could subsist in telephone directories.  As some novel legal points emerged in this case Anneliese conducted a considerable amount of research into copyright law across multiple jurisdictions and she attended the hearing of this matter in the Federal Court. Anneliese also assisted partner Chris Fox with work he was doing in connection with the 2009 Victorian Bushfires Royal Commission.

Finally Anneliese spent nearly a month working in the chambers of Chief Justice Black of the Federal Court of Australia.  During this time she was also able to participate in the work of the Australian Competition Tribunal, headed by Justice Finkelstein.

Please click below for more information on:
Anneliese Blackwood

The Claimant, European Dynamics SA, specialises in the delivery of consultancy services for the design, development, maintenance and support of IT applications and software products and it had failed in its attempt to win a place on some framework agreements being set up by Buying Solutions (part of HM Treasury).  It obtained an initial injunction against Buying Solutions, when it appeared on its own just before the end of the “Alcatel” standstill period.  Buying Solutions was successful today in having that injunction discharged when the matter returned to court for a hearing with both parties involved.

Michael Bowsher QC and Elisa Holmes represented the Defendant, HM Treasury.

Please click below for more information on:
Michael Bowsher QC
Elisa Holmes

The hearing in this appeal began to day.  Earlier in the year the Court of Appeal granted permission to Emerald Supplies Limited to appeal against the decision of the Chancellor striking out the representative element of its cartel damages claim against British Airways plc (BA).   In its representative claim Emerald purported to represent all those purchasers of airfreight services who had paid inflated prices as a result of the alleged cartel.

The claim arises in connection with BA’s alleged participation in a cartel in relation to the fixing of fuel surcharges in connection with airfreight services in breach of Article 81 EC.

Ben Rayment is junior counsel to Emerald instructed by Hausfeld LLP.

Please click below for more information on:
Ben Rayment

Monckton Chambers are pleased to announce that a further three tenants have been appointed to the FoI Panel. Ian Rogers, Ben Lask and Alan Bates join George Peretz and Gerry Facenna.  The Treasury Solicitor’s Department set up the specialist panel to act in appeals under the Freedom of Information Act 2000 (FOIA) on behalf of government departments in the summer of 2008.

In addition to their new appointments, all members remain free to act in FOIA appeals for private and other public bodies or interest groups seeking access to information.

Please click below for more information on:
Ian Rogers
Alan Bates
Ben Lask

The Court of Appeal (Criminal Division) has given judgment on the first contested criminal proceedings under the ‘cartel’ offence in section 188 of the Enterprise Act 2002.  The defendant, with others, were senior executives in a major company charged with dishonestly agreeing to effect a price fixing arrangement between their company and a competitor.

The issues in the appeal were whether the cartel offence amounted to a “national competition law” within the meaning of Council Regulation (EC) No 1/2003 (“the Modernisation Regulation”), and, if so, whether the Modernisation Regulation prevents the Crown Court from trying an indictment alleging the cartel offence, or imposing a punishment if it is proved to have been committed, when the Crown Court has not been designated as a National Competition Authority under the Regulation.  The Court of Appeal answered both questions in the negative, and dismissed the appeal by the defendant.

Jon Turner QC and Anneli Howard represented the OFT, together with Richard Latham QC, Mark Lucraft QC and Thomas Payne.

Please click below for more information on:
Jon Turner QC
Anneli Howard