R(Herron) v Parking Adjudicator (Sunderland City Council as Interested Party), 15 June 2009

“Last week, Mr Justice Keith heard a claim that the Traffic Penalty Tribunal (formerly known as the National Parking Adjudication Service) was not independent and impartial, within the meaning of Article 6 ECHR.

His Lordship refused to give permission for the ECHR claim to proceed to a full Judicial Review hearing, saying that he was entirely satisfied that the claim was not arguable. At a previous oral hearing before Mrs Justice Dobbs, the Claimant had been permitted to amend his claim to plead a failure to give adequate reasons, but Mr Justice Keith also refused permission to apply for Judicial Review on this ground. The Parking Adjudicator resisted the human rights and reasons challenges, but adopted a neutral stance at the permission stage on a point of statutory construction, involving the principles of substantial compliance and the effect of deficiencies in traffic signs and road markings in controlled parking zones. The claim will proceed to a substantive Judicial Review hearing on the statutory construction issue alone.”

Ian Rogers appeared for the Parking Adjudicator.

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Ian Rogers

National Grid brought a damages claim against a number of multinational engineering groups (ABB, Areva, Siemens and Alstom) which the EC Commission had found had participated in a cartel relating to Gas Insulated Switchgear (GIS). In bringing its damages claim National Grid relied on the Article 81 infringement decision reached by the Commission.  The engineering companies sought an immediate stay of the claim whilst appeals against the Commission’s decision were heard.  They applied for the claim to be stayed pending the outcome of the Court of First Instance Proceedings and any further European Court of Justice appeals.  National Grid said such an immediate stay should not be imposed even if the final trial could not be dealt with before the European Courts had reached their final decisions.

The Chancellor decided that there should be no immediate stay of proceedings.  Whilst the final trial would not be listed until after any EC appeals, steps towards trial could be taken including the closing of pleadings and the parties meeting with a view to considering appropriate disclosure.  A case management conference would be fixed to consider any disclosure issues arising and other matters.

To read the judgment, please click here.

Jon Turner QC and Daniel Beard represented National Grid

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Jon Turner QC
Daniel Beard QC

The High Court has upheld the bingo and casino operator Rank Group’s claim for a £62 million VAT refund from HMRC. Rank successfully argued that the UK’s different VAT treatment of different types of mechanised cash bingo games breached European fiscal neutrality rules; Rank also successfully argued that a difference in VAT treatment of different types of gaming machine also breached those rules.

Subsequent legislative changes to both gaming and tax law mean that the difference in VAT treatment dealt with in this case is no longer an issue.

To read the judgment, please click here.

Paul Lasok QC and Valentina Sloane represented the Rank Group.

Christopher Vajda QC and George Peretz represented HMRC.

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Paul Lasok QC
George Peretz
Valentina Sloane

Kassie Smith

The judgment of the ECJ in the Bouygues case

On 2 April 2009, the European Court of Justice (“ECJ”) handed down judgment in Case C-431/07 P Bouygues SA v Commission.  The ECJ upheld the judgment of the Court of First Instance (“CFI”).

Member(s) of Chambers involved in this case: Christopher Vajda QC

Both the European Commission and the Department of Justice have appointed women at their helm.  To mark that achievement, Global Competition Review has conducted a world-wide survey of 100 leading female members of the profession to discuss issues such as career progression and promotion, mentoring, discrimination and work-life balance. The 100 Respondents included female partners from leading law firms world-wide, members of the European Commission and national regulatory authorities. Anneli Howard was delighted to be selected as one of two barristers to take part.

To see the GCR guide to the world’s leading women in antitrust, please click here.

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Anneli Howard

Commissioners for Her Majesty’s Revenue and Customs v. Procter & Gamble [2009] EWCA Civ 407

The Court of Appeal has allowed an appeal by HMRC and reinstated the decision of the VAT & Duties Tribunal that Pringles were both “made from the potato, or from potato flour, or from potato starch” and were “similar products” to potato crisps. Accordingly, the Court of Appeal concluded that Pringles were properly standard rated for VAT, falling within Excepted Item 5 to the zero-rating provision (Schedule 8, Group 1, VAT Act 1994). The main message from the Court was that an appeal court should be slow to interfere with a Tribunal’s classification of a product and that this sort of question is “not one calling for or justifying over-elaborate, almost mind-numbing legal analysis.”

Christopher Vajda QC and Raymond Hill were instructed by HMRC in the Court of Appeal. Raymond had previously appeared before the Tribunal and the High Court.

For the Court of Appeal’s judgment, please click here.

For further news on this case, please click here.

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Raymond Hill

 

The Queen has been pleased to approve the appointment of former Head of Monckton Chambers, Kenneth Blades Parker, Esq., Q.C., to be a Justice of the High Court with effect from 2 October 2009 on the retirement of Mr. Justice McKinnon.

The Lord Chief Justice will assign Mr. Parker to the Queen’s Bench Division. He will be known as Mr. Justice Kenneth Parker.

Head of Chambers, Paul Lasok QC said, “all members of Chambers are delighted to see that Ken has been appointed to the High Court and wish him well in his judicial career”.

Mr. Parker was called to the Bar by Gray’s Inn in 1975 and took Silk in 1992. He was appointed a Recorder in 2000, a Law Commissioner in 2006 and was approved to sit as a deputy High Court Judge.

Members and staff warmly congratulate Kenneth on this prestigious appointment.

In J B Leadbitter & Co Limited v Devon County Council [2009] EWHC 930 (Ch), the High Court confirmed the right of public contracting authorities subject to the Public Contracts Regulations strictly to apply time limits imposed for the receipt of compliant tenders. In this important decision, Mr Justice Richards held that, provided rules regarding compliant tenders have been drawn and applied in ways which are transparent, ensure equal and non-discriminatory treatment and which are proportionate, contracting authorities are entitled to insist on strict compliance.

Mr Justice Richards, considering the application of the principle of proportionality to the terms of a procurement process, held that the general EU law principle of proportionality is capable of applying in these circumstances, so that a court will intervene if the decision of the contracting authority is unjustifiable. According to Mr Justice Richards, this is the proper meaning of “manifest error” in this context, a term used by the courts in several previous decisions, including Lion Apparel Systems Ltd v Firebuy Ltd [2007] EWHC 2179 (Ch). Only in extreme circumstances, however, such as fault on the part of the contracting authority, will the application of the principle of proportionality require contracting authorities to consider tenders received after the deadline.

Michael Bowsher QC, Elisa holmes and Ligia Ospeciu represented Devon County Council.

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Michael Bowsher QC
Elisa Holmes

On 8 May The High Court gave judgment in the first ever VAT Group Litigation test claims, in the VAT Interest Cars Group Litigation. The test claims against HMRC were dismissed in their entirety. As a result of the judgment it appears that all of the claims in the group litigation, valued at about £150 million will be successfully defended by HMRC. Peter Mantle and Philip Woolfe of Monckton represented HMRC, along with first Treasury Counsel (Chancery). The judge upheld HMRC’s argument that, generally, common law claims for interest were excluded by VATA 94. In a headline ruling he decided that where the overpayment of VAT was caused by breach of directly effective provisions of EU law, EU law required HMRC to pay compound interest. This creates conflicting High Court decisions, the judge refusing to follow Lawrence Collins L.J. in ToTel. HMRC succeeded on limitation and causation points. Henderson J. also held that the introduction of the 3 year cap was not a sufficiently serious breach of EU law to give a right to claim damages. The claimants are not appealing the dismissal of their damages claim, but obtained permission to appeal against the successful limitation defence to their restitution claims. Thus the Court of Appeal should hear the compound interest issue. Related Tribunal claims by car dealers are to be heard in June with Peter Mantle and Philip Woolfe again representing HMRC.

For the High Court judgment, please click here.

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Peter Mantle
Philip Woolfe

Following a hearing lasting 11 days at which the Tribunal received extensive evidence from witnesses of fact and expert economists the Competition Appeal Tribunal (CAT) has delivered its judgment on an appeal by National Grid plc against a decision of the Gas and Electricity Markets Authority (the Authority) published on 21 February 2008.

In the Decision the Authority found that National Grid had abused its dominant position in the market in Great Britain for the provision of domestic-sized gas meters, contrary to section 18 of the Competition Act 1998 Act and Article 82 of the EC Treaty. The Decision imposed a fine of £41.6 million on National Grid and ordered National Grid to put an end to the infringement. A number of the competing meter operators – Capital Meters Ltd, Siemens plc and Meter Fit Ltd – intervened in the proceedings in support of the Authority. This was the first significant decision for a number of years by a UK competition authority under section 18/Article 82.

In its judgment the Tribunal dismissed National Grid’s appeal against the finding of infringement but allowed it in other respects, including in reducing the fine imposed on National Grid to £30 million.

Jon Turner QC, Meredith Pickford, Josh Holmes and Laura Elizabeth John were instructed by Pinsent Masons for National Grid plc.

Christopher Vajda QC and Kassie Smith were instructed by Hill Hofstetter for Siemens plc.

Christopher Vajda QC and Ben Rayment were instructed by Slaughter & May for Capital Meters Limited.

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Jon Turner QC
Kassie Smith QC
Ben Rayment
Meredith Pickford
Laura Elizabeth John