House of Lords Gives Judgment in Lonsdale v Howard & Hallam

The House of Lords delivered its judgment in the test case on commercial agents’ compensation under Regulation 17 of the Commercial Agents (Council Directive) Regulations 1993 on 4th July 2007.

The House of Lords (Lord Hoffmann giving the lead Opinion, with the other members concurring) upheld the Court of Appeal’s approach that compensation is to be assessed by way of a business valuation of the value of the agency to the agent at the date of termination. He clarified that courts should presume a hypothetical buyer and a hypothetical open-market sale, but that otherwise the actual value should be assessed.

The House of Lords expressly disapproved of the approach in the Scottish Outer House of the Court of Sessions case King v Tunnock and also declined to make a reference to the European Court of Justice.

Philip Moser of Monckton Chambers acted for Lonsdale on behalf of Amicus.

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Philip Moser QC



Alzheimer’s Patients Fight New Rules on Drug Availibility

At the end of June hearings took place in R(EISAI) and Alzheimer’s Society v NICE.

The case concerns a challenge to guidance issued by the National Institute for Health and Clinical Excellence (“NICE”) which restricts the availability of drugs which serve to inhibit the symptoms of Alzheimer’s Disease. This is the first time NICE is being challenged.

Previously, the drugs had been available to patients with mild or moderate Alzheimer’s Disease.  The effect of the new guidance issued by NICE was to restrict availability to patients suffering from mild Alzheimer’s Disease.  The companies which manufactured the drugs and the Alzheimer’s Society argued that the Guidance was unlawful for a range of reasons, including a breach of the requirements of the Race Relations Act 1976. Judgment is expected on 10 August.

Tim Ward and Gerry Facenna acted for the Alzheimer’s Society.

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Tim Ward QC
Gerry Facenna

ECJ Ruling in £3 billion Hutchison 3G VAT Case

C-369/04: Hutchison 3G & C-284/04: T-Mobile Austria

A ruling by the ECJ on 26th June means that Revenue and Customs will not have to pay a VAT claim for over £3 billion brought by the winners of the third generation mobile phone spectrum auction in 2000.

The mobile phone companies had claimed that the £27 billion paid by them for spectrum licences included £3 billion VAT, which they were entitled to reclaim.  However, the ECJ today ruled that the UK’s allocation of spectrum was not “economic activity” and hence was not subject to VAT.

The judgment will come as a relief not just to the UK but also to many other Member States, including Germany, the Netherlands, Ireland and Spain, where similar auctions were conducted and similar VAT claims made by the winners; a case from Austria on the same point was the subject of a parallel ECJ judgment today.

Barristers from Monckton Chambers acted on each side in this case: the mobile phone companies were represented by Paul Lasok QC, and Revenue and Customs by Christopher Vajda QC and George Peretz.

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Paul Lasok QC
George Peretz

Arriva Found Not Dominant

The High Court gave judgment in the case of Chester City Council v. Arriva plc.  Arriva was accused of predatory pricing and flooding the market for local bus services in central Chester, in breach of Chapter II of the Competition Act.

Arriva defeated Chester City Council on every point, including by demonstrating that Arriva was not dominant on the relevant market.  The Court held that the relevant geographic market was to be measured using bus drive time isochrones and that the correct metric for assessing market share was bus capacity.  Permission to appeal was denied.

Paul Harris appeared on behalf of Arriva as Junior Counsel.

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Paul Harris QC



High Court Damages Ruling in Hit-and-Run Case

The High Court has held that the United Kingdom’s arrangements for compensating the victims of untraced drivers do not comply with European Community law in requiring compensation claims made on behalf of minors to be brought within three years of injury.  The Court also found that the breach of EC law was sufficiently serious to expose the Secretary of State to a claim in damages.

The judgment arose out of a claim brought on behalf of Ben Byrne, who was injured by an untraced driver when he was three years old.  Later, his parents learnt of the possibility of claiming compensation, and made a claim to the Motor Insurers Bureau,which provides compensation to the victims of untraced drivers under the terms of an agreement with the Department of Transport.  But the MIB refused to process Ben’s application because of a rule in the agreement requiring all claims to be brought within three years of the injury.  This rule was harsher than the provisions of the Limitation Act governing claims against traced drivers; under the Limitation Act, the three year time limit only starts to run when a minor reaches 18.

In legal proceedings brought on Ben’s behalf against the MIB and the Secretary of State for Transport, the High Court found that this was contrary to the EC Directive governing claims by victims of untraced drivers because it did not protect claims by minors against the MIB as effectively as the Limitation Act rules applicable to actions in court by minors who are the victims of traced drivers.

The High Court rejected Ben’s claim against the MIB, holding that the MIB was not an emanation of the State and that the Directive was therefore not directly effective against it; and that the agreement between the MIB and the Secretary of State could not be construed so as to comply with the Directive.

However, the High Court held that the United Kingdom was in sufficiently serious breach of the Directive to expose it to a claim for damages under the principle laid down in the Francovich line of case-law.  Ben can therefore proceed with his claim against the Secretary of State for Transport, seeking damages for the loss he has suffered in being deprived of the possibility of obtaining compensation from the MIB.

Nicholas Paines QC and Josh Holmes represented Ben Byrne.

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Josh Holmes

Judicial Review of the Coal Authority Fails

The Administrative Court has rejected a claim by Abbey Mine to quash a decision of the Coal Authority to grant a licence to Corus, the steel maker, to mine coal in the Margam area of South Wales.  The Court had to consider how to apply the public law principle of fairness in the context of a comparative evaluation of competing bids.  Among the arguments it rejected was that fairness dictated that the decision maker should disclose a number of documents to Abbey Mine.  A competition law attack was also made on the Coal Authority.  This also failed.  Of particular interest was the Court’s rejection of an argument that, because of the royalty payments received from its licensing functions, the Coal Authority was an undertaking for the purposes of competition law.

Christopher Vajda QC and Josh Holmes, instructed by Nabarro, acted for the Coal Authority.

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Josh Holmes

“Best Chambers” and “Best Barrister” Finalist at the Lawyer Awards 2007

We are delighted that Monckton Chambers has been nominated as ‘Chambers of the Year’ and Peter Roth QC has been shortlisted as ‘Barrister of the Year’ as part of The Lawyer Awards 2007.  It is great to have been chosen among hundreds of entries.  The winners will be announced on 26th June 2007 at an award ceremony at The Grosvenor House Hotel.

Paul Lasok QC, Head of Chambers says: “We are very pleased with this news, especially as this year saw a tough panel of judges including some of the biggest names in the City.”

We would like to take this opportunity to thank our clients for their continuous support.

Just Fabulous (UK) Ltd v HM Revenue and Customs [2007] EWHC 521 (Admin)

First published by De Voil Indirect Tax Intelligence, Issue 131, April 2007

Just Fabulous (UK) Ltd v HM Revenue and Customs was one of three cases which were not consolidated but were effectively heard together by the Administrative Court (Burton J), each relating to the powers of HM Revenue and Customs (“HMRC”) in relation to so-called “contra-trading” fraud, a variation of MTIC or carousel fraud.

Georgia v Russian Federation ~ First Inter-State Case Application at ECHR Since 1998

On 26 March 2007 the Georgian Government lodged an inter-State case with the European Court of Human Rights (ECHR) against the Russian Federation.  The Monckton Chambers team was chosen to represent Georgia because of their ability to offer the expertise needed in this international case.

The case is the first inter-State case brought using the special procedure of Article 33 of the Convention (ie one brought by one Member State of the Council of Europe against another) since the ECHR became a full time institution in 1998 and only the fourth such case ever to be brought before the Court.

Georgia is represented before the ECHR by its Agent.  Piers Gardner and Jeremy McBride of Monckton Chambers have been instructed by the Georgian Ministry of Justice to act in relation to the case.

The case concerns the arrest, detention and collective expulsion of thousands of Georgians from Russia since September 2006 and the Russian imposition of an economic embargo on Georgia, by closing the border, forbidding maritime and air movements and cancelling all postal communications.  It asserts that Russia has established an administrative practice causing systemic breaches of the European Convention on Human Rights, including the:

  • Right to liberty and security of person (Article 5)
  • Prohibition of inhuman and degrading treatment, involving the conditions in detention and deaths in detention of deportees (Article 3)
  • Collective expulsion of aliens (article 4 of Protocol 4 and Article 1 of Protocol 7)
  • Rights to respect for home, family life and correspondence (Article 8), the peaceful enjoyment of possessions (Article 1 of Protocol No 1), the right to education (Article 2 of Protocol No 1)
  • Prohibition on discrimination(Article 14), as well as
  • Ineffectiveness of national remedies for those affected (Article 13) and the implementation of measures for an impermissible purpose (Article 18)

Our team combines enormous experience in advising and bringing proceedings in commercial and property-related human rights cases.  Their expertise includes both advising on the UK’s Human Rights Act and ECHR and appearing in the European Court of Human Rights. Unusually they have handled European human rights cases concerning not only the UK, but many other European countries, including Spain.  They are also regularly involved in advising and bringing proceedings under other human rights instruments such as the United Nations’ International Covenant on Civil and Political Rights as well as EU law.




Latest Chapter in Advanced Corporation Tax Group Litigation

On 23 March 2007 Mr Justice Rimer gave judgment in Pirelli Cable Holding NV and others v. Commissioners for HM Revenue and Customs [2007] EWHC 583 (Ch.), the latest chapter in the long-running Advance Corporation Tax (‘ACT’) group litigation.

The five test cases in the ACT group litigation (of which Pirelli is one) result from the 2001 decision of the ECJ in Metallgesellschaft v. IRC and Hoechst v. IRC [2001] Ch. 620. They are aimed at resolving the issues arising out of a large number of claims for compensation by foreign companies and their UK subsidiaries in respect of payments of ACT made between 1973 and 1999, which the ECJ held in Metallgesellschaft/Hoechst to be contrary to the right of establishment under Article 43 EC.

Two of the five test cases have progressed through the domestic courts and were decided by the House of Lords in 2006 (Pirelli and Deutsche Morgan Grenfell); two are currently being heard by the House of Lords (Sempra Metals and Boake Allen / NEC Semiconductors); while the last case, “Test Claimants in Class IV” was referred back to the ECJ, which delivered judgment on 12 December 2006.

The central issue in Pirelli was whether the payment of a tax credit to a parent company resident in another EU Member State should have any bearing on the compensation now payable to its UK subsidiary in respect of unlawful ACT payments. Having lost the argument in the House of Lords, Pirelli sought to argue before Rimer J. (to whom the matter was remitted) that the Claimants were nevertheless entitled under EC law to a separate tax credit that they had not yet received and which now had to be brought into account in assessing the compensation due in line with the ECJ’s judgment in Metallgesellschaft.

Rimer J. rejected the argument, finding that neither domestic law nor Community law provided Pirelli with a right to any such tax credit. The Judge held that the Claimants should have raised the point before the House of Lords but that, on balance, it was not an abuse of process for them to do so now.

It is now expected that there will be a further hearing to deal with factual issues and the method of assessing the relevant amount of compensation in line with the decision of the House of Lords.

Meanwhile, the House of Lords has set down a further day in May 2007 for argument in Sempra Metals, another of the ACT test cases, to deal with issues relating to the restitutionary claims by the ACT Claimants and the issue of whether compensation should be calculated using compound interest.

The original High Court actions in Metallgesellschaft and Hoechst were commenced in 1995 before Neuberger J., sufficiently long ago that the same Judge is now sitting in the House of Lords in one of the test cases (Boake Allen / NEC Semiconductors). Increasingly, it looks like what Lord Hoffman has referred to as ‘the forensic fall-out’ from Metallgesellschaft will see out another decade.

Gerry Facenna is instructed as junior counsel to HM Revenue & Customs in two of the five ACT group litigation test cases, Sempra Metals and Pirelli.