The OFT has decided not to refer the anticipated acquisition of Ocean Park Limited by Orbital Marketing Services Group Limited to the Competition Commission. The OFT found that it would be under a duty to refer the merger as it would combine the only two bulk distributors of tour operators travel brochures to travel agencies and other retail outlets in Great Britain. However, given the size of the market and the limited impact of the merger, the OFT exercised its de-minimis discretion, deciding that a detailed investigation by the Competition Commission would be disproportionate to the competition concerns.

To date the de-minimis exception to the duty to refer has only been applied in a limited number of cases mostly arising in the transport sector. In the one case to date not in the transport sector in which the exception was applied, the turnover in the affected market was very low (less than £1 million). The case shows that larger markets below the £10 million threshold may benefit from the exception depending on the circumstances. Although a “2 to 1” merger would normally justify a reference even for fairly small markets, the OFT was prepared to accept the arguments of the parties regarding the lessened impact of the merger in the future due to the expected decline in size of the market.

Ben Rayment advised Orbital Marketing Services Group Limited as to the applicability of the “de minimis” exception.

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Ben Rayment

Chambers UK, 2009 edition was published on 6 November and continues to list Monckton Chambers as one of the leading sets at the London Bar. We are also delighted to see that our individual recommendations have gone up by over 10% to a total of 47 spread across 10 fields. For the full list of practice areas in which we are highlighted, including the details of those individual members of Chambers who received special mention, please visit our ‘Directories’ section of this website.

The Secretary of State and the Competition Commission successfully resisted attempts by Virgin Media and BSkyB to persuade the Competition Appeal Tribunal to order that aspects of the acquisition by BSkyB of 17.9% of ITV’s shareholding be remitted to the Commisison and ultimately the Secretary of State for reconsideration. Virgin and Sky’s application followed the recent decision of the Tribunal to uphold the the Secretary of State’s decision ordering Sky to divest its shareholding in ITV down to a level below 7.5%. Virgin and Sky argued, on separate grounds, that the matter should be remitted for reconsideration following the CAT’s finding that the Commission and the Secretary of State had erred in aspects of their determinations that Sky’s acquisition did not impact upon the sufficiency of media plurality. The CAT, in refusing the applications, accepted the Secretary of State and Competition Commission’s arguments that any such remital would be otiose, since any reconsideration would not impact upon the appropriate remedy ordered by the Secretary of State to address the substantial lessening of competition, which remedy the CAT had already upheld.

The Secretary of State was represented by Elisa Holmes

The Competition Commission was represented by John Swift QC and Rob Williams.

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John Swift QC
Rob Williams
Elisa Holmes

On 21 October 2008, the OFT issued a Statement of Objections alleging infringements of the Chapter I prohibition of the Competition Act 1998 against eight recruitment agencies: A Warwick Associates, Beresford Blake Thomas, CDI AndersElite, Eden Brown, Fusion People, Hays Specialist Recruitment, Henry Recruitment and Hill McGlynn Associates.
The OFT alleges that these companies agencies engaged in, first, a collective boycott of a particular intermediary for the supply of candidates to construction companies in the UK, and, secondly, an agreement and/or concerted practice to fix target fee rates for the supply of candidates to intermediaries and certain construction companies in the UK.
At this stage, it should not be assumed that the parties involved have broken the law. The OFT will decide if the law has been breached after it has reviewed any responses to the Statement of Objections.

Kassie Smith has been advising the OFT on this matter.

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Kassie Smith QC

The Court of Arbitration for Sport has upheld the convictions of two British weightlifters convicted of doping offences at the British Weight Lifting Championships. In the proceedings, the weightlifters mounted a wholesale attack on the sample collection procedures undertaken by UK Sport and testing procedures carried out by the Drug Control Centre, which, if successful, would have threatened the standing of countless positive drug tests across the country. Mr Michael Beloff QC, sitting as a sole arbitrator, found, in refusing the appeal, that “BWLA fairly submits that the Appellants have not succeeded in establishing a violation in relation to any of the litany of complains made in the two notices of appeal … the charges were properly brought, properly proved and there are no grounds for allowing either appeal”.

Elisa Holmes represented the British Amateur Weightlifting Association at first instance and in the appeal.

In an important case on financial remedies for victims of competition infringements, the Court of Appeal has held that a restitutionary award is not available either as a matter of English or European law. A restitutionary award is a remedy which is based on stripping a wrongdoer of the profit he has made from an unlawful act rather than compensating the victim for the loss that he has suffered. Such an award has been granted in limited circumstances by the English courts in circumstances where a compensatory award would be inadequate. Devenish purchased vitamins from a number of vitamin producers that were found by the European Commission to have engaged in a cartel. Devenish then incorporated those vitamins into feedstuff which it sold on. It argued that compensatory damages would be inadequate since it would be met by the defence that it had passed on the overcharge to its customers. The Court of Appeal (by a majority) held that it was precluded by a binding Court of Appeal judgment from granting a restitutionary award in this situation. The Court added that, even it was not so precluded, this was not an appropriate case for such an award. While the Court rejected an argument that EC law precluded a restitutionary award, it also found that EC law did not require a restitutionary award to be made available.

Christopher Vajda, instructed by Irwin Mitchell, acted for Devenish.

We are delighted that Tim Ward has been shortlisted in the category of ‘Barrister of the Year’ at the Law Society Excellence Awards 2008. Representatives for the annual ceremony revealed their shortlists of successful nominees on Tuesday 30th September. This nomination is a real testament to the calibre and quality of Tim’s advocacy and litigation experience. The actual results will be announced at the award ceremony on 23 October 2008

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Tim Ward QC

BSkyB has lost its appeal at the Competition Appeal Tribunal in regard to the Competition Commission’s decision to force the broadcaster to reduce its shareholding in ITV to less than 7.5%.

In a report published last December, the Competition Commission concluded that Sky’s shareholding in ITV may be expected to give rise to a substantial lessening of competition, and recommended that Sky’s holding should be reduced to a level below 7.5%. The Secretary of State was responsible for the eventual decision on remedial action, but agreed with the Commission’s recommendation. BSkyB challenged the Commission’s conclusions on jurisdiction, competition and remedial action, and also challenged the Secretary of State’s decision on remedies.

The Tribunal also rejected an appeal by Virgin Media against the remedy imposed, but allowed Virgin Media’s appeal in relation to the interpretation of the media plurality regime.

Rupert Anderson QC and Elisa Holmes acted for the Secretary of State.

John Swift QC, Daniel Beard and Rob Williams were counsel for The Competition Commission.

For more information on the case, click here.

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John Swift QC
Daniel Beard QC
Rob Williams
Elisa Holmes

The International Court of Appeal of the FIA has dismissed an appeal by Team McLaren Mercedes in which it sought to overturn a penalty imposed on Lewis Hamilton at the recent Belgian Spa Grand Prix. The appeal attracted considerable interest because, if it had succeeded, Mr. Hamilton would have gone into the forthcoming Singapore Grand Prix with a clear lead in the drivers’ championship.

After a day of argument before the Court in Paris, however, the appeal was declared inadmissible.

Paul Harris represented the FIA.

We are delighted to confirm that international and human rights law specialist Drew Holiner has joined Chambers as a new tenant.

Drew is unique to Monckton Chambers in that he is an English-Russian qualified barrister, who had a prolific litigation practice in Russia prior to obtaining pupillage in the UK.

The Lawyer published a full profile of Drew; click here for the article

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Drew Holiner