The High Court has given judgment in favour of the Home Secretary on an application for Judicial Review concerning the Posted Workers Directive (96/71/EC) and Article 49 EC (the freedom to provide services).

The case of R(Lee Ling Low, Rising Sun Catering, Hot Hot Grill and Bar Ltd and others) v Secretary of State for the Home Department [2009] EWHC 35 (Admin) was identified as the lead case for speedy determination, among 23 Judicial Review applications. A further 650 cases had been dealt with in the same manner by the Home Secretary.

The case involved an Irish company entering an agreement to supply catering services to a UK restaurant company. 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. It was also argued that the Home Secretary had no current published policy indicating in what circumstances her Department would grant “permission to work” to those persons who are subject to immigration control and who are granted temporary admission.

Article 2 of the Posted Workers Directive defines a “posted worker” as a “worker who, for a limited period, carries out his work in the territory of a member state other than the state in which he normally works”. All parties relied on a series of decisions relating to posted workers and Article 49 in the European Court of Justice, the best known of which is Case C-43/93, Vander Elst, [1994] ECR I-3803.

The Court held that none of the Claimants have any entitlement to rely on Article 49 and the posted workers cases because the third party nationals were not resident in the member state of establishment, Ireland. As the third country nationals were not lawfully resident in Ireland, the Home Secretary’s decisions not to regularise their status and to detain and remove them were lawful and not in breach of EC law. The Court also found that the Claimants’ reliance on Article 49 was an abuse of EC law. Finally, the Court held that there is a transparent and publicly available policy relating to permission to work for those granted temporary admission; and the decisions were in accordance with this policy.

The judgment contains a comprehensive analysis of the case law on posted workers and the “abuse of EC law” doctrine.

The High Court refused the Claimants’ request to refer the case to the European Court of Justice, stating that it had no doubt that the Home Secretary’s submissions were correct in law.

Ian Rogers appeared for the Home Secretary, instructed by the Treasury Solicitor

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Ian Rogers

We would like to extend our warm congratulations to the following members upon their successful applications to the Panel of Crown Counsel.

A Panel

Peter Mantle (renewed)

George Peretz (elevated)

Kassie Smith (elevated)

B Panel

Philip Moser (new appt)

Valentina Sloane (elevated)

Mario Angiolini (elevated)

Elisa Holmes (new appt)

C Panel

Alan Bates (new appt)

This takes the total of Monckton Chambers’ panellists to 22: 7 A Panel, 8 B Panel and 7 C Panel.

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Philip Moser QC
Kassie Smith QC
Peter Mantle
George Peretz
Valentina Sloane
Alan Bates
Elisa Holmes

Monckton Chambers will host  the next ICC Task Force on Public Procurement meeting on Friday 27 February 2009

The meeting will be held to discuss:

• The Task Force Programme for addressing failures in public procurement systems.
• UNCITRAL Model Law on Procurement of Goods, Constructions and Services
• ICC Model Confidentiality Clause for Public Contracting
• Other Task Force’s business

Michael Bowsher QC is a member of The International Chamber of Commerce.

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Michael Bowsher QC

Michael Bowsher QC presented his thoughts on the UK perspective on corruption at the inaugural Procurement Lawyers Association event held at Addleshaw Goddard’s last Friday.

The Association was formed with the aim of bringing together expert practitioners to discuss the increasingly litigious issues affecting the procurement environment, to develop skills and to share best practice..

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Michael Bowsher QC

Lewison J, judgment 16 January 2009

These were the first two appeals from a full Tribunal hearing to the High Court in what is known as missing trader intra-community fraud (or MTIC) fraud. The judgment helpfully sets out the ingredients of the three principal kinds of carousel-type fraud: (1) acquisition fraud; (2) “straight” MTIC fraud and (3) contra-trading. Both appeals involved whether the traders “ought to” have had knowledge of fraud for the purposes of denying input tax repayment under the ECJ’s test in Kittel, the Tribunal having found no actual knowledge. Livewire was principally concerned with the requisite ingredients for proving that the trader ought to have known about contra-trading (which was also a secondary issue in Olympia). The Tribunal had found that the Revenue had to show that the taxable person ought to have known of both the missing trader’s fraud and also the contra-trader’s involvement in that fraud. Olympia principally involved the question of whether the knowledge to be attributed to a trader company was that of the director, whom the Tribunal had found was “naïve,” or whether it was an objective test.

The court held:

Where it was ascertained, having regard to objective factors, that the supply was to a taxable person who knew or should have known that, by his purchase, he was participating in a transaction connected with fraudulent evasion of value added tax, it was for the national court to refuse that taxable person entitlement to the right to deduct. In both cases, the Tribunal had applied too high a test to contra-trading. In the case where the contra-trader had himself been a dishonest co-conspirator it was sufficient if the trader knew or ought to have known of the contra-trader’s dishonesty. In a case where the contra-trader had not been dishonest, it was sufficient if the taxable person knew or ought to have known of the missing trader’s default. However, on the facts as found, the Tribunal’s error of law did not affect the eventual result in relation to the contra-trades in either of these appeals. In relation to Olympia, the Tribunal was wrong to adopt a legal test for knowledge that required fewer precautions (or a lower level of understanding) than would have been required of a director of ordinary competence. Olympia was accordingly remitted for a rehearing.

Rupert Anderson QC and Philip Moser (instructed by Solicitors for Revenue and Customs and Howes Percival LLP) appeared for the Revenue.

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Philip Moser QC

It was announced today that John Swift QC has been appointed to the new Co-operation and Competition Panel, chaired by Lord Carter of Coles

The Panel has been established to help ensure NHS-funded services deliver high quality care for patients and value for money for taxpayers. It will start its work later this week on Friday 30 January.

The Panel will investigate potential breaches of the Principles and Rules of Co-operation and Competition (PRCC), and make independent recommendations to Strategic Health Authorities, the Department of Health and, in relation to NHS Foundation Trusts, Monitor on how such breaches should be resolved.

It will also review proposed mergers, and advise on the wider development of co-operation, patient choice and competition within the NHS.

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John Swift QC

On Thursday 15 January, the Competition Appeal Tribunal commenced its hearing of National Grid’s appeal against Ofgem’s finding that it had breached the Chapter II Prohibition under the Competition Act 1998 and Article 82 of the EC Treaty by abusing its dominant position in the domestic gas metering market. National Grid entered into agreements with gas suppliers whereby the gas suppliers agreed to pay early replacement charges if they replaced more than a certain number of National Grid’s installed meters each year with new meters supplied inter alia by competing meter operators. Ofgem imposed a fine of â£41.6 million on National Grid. National Grid challenges Ofgem’s market definition, its finding of dominance and its finding of abuse. The Tribunal will be determining the appeal on the merits, hearing evidence from witnesses of fact and expert economists during the ten day hearing. A number of the competing meter operators – Siemens, Capital Meters Ltd and Meter Fit – are intervening in the proceedings in support of Ofgem.

Jon Turner QC, Meredith Pickford, Josh Holmes and Laura Elizabeth John are acting for National Grid.

Christopher Vajda QC and Kassie Smith are acting for Siemens.

Christopher Vajda QC and Ben Rayment are acting for Capital Meters Limited.

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

Monckton Chambers is pleased to announce that Robert Palmer has accepted tenancy with immediate effect.

Robert, previously of 4-5 Gray’s Inn Square, has a well established practice in general public law and human rights work, with an emphasis on issues of European Community law. He was appointed to the Attorney General’s B panel of Counsel in February 2007.

Recent examples of his European law based practice in the Court of Appeal include: Romantiek Transport BVBA v VOSA (concerning Community rules on goods vehicle operators licensing), English v Thomas Sanderson Ltd (concerning the implementation of the equal treatment directive on sexual orientation discrimination) and KG and AK (Sri Lanka) v Secretary of State for the Home Department (concerning the rights of family members of EU nationals under the European Citizens’ Directive to enter and reside in the UK).

Robert said, “Monckton Chambers is the perfect place for me to develop my existing practice into the fields of commercial and regulatory judicial review. Monckton Chambers’ clients have expanding levels of demand for commercial and regulatory public law expertise. My skills and experience in public law will lend themselves readily to Monckton’s core areas of strength, and enhance Monckton’s ability to supply the growing demand for its services in public and administrative law.”

Paul Lasok QC, Head of Chambers said, “I am delighted Robert has chosen to join Monckton Chambers at this time. His presence will undoubtedly increase our capabilities as we continue to expand.”

David Hockney, Senior Clerk, commented, “Robert has a proven track record of appearing at the Administrative Court and Court of Appeal and will add further strength to our growing reputation in the fields of public law and human rights.”

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Robert Palmer

 

 

Monckton Chambers is pleased to announce that Paul Harris has been listed as an outstanding litigator in The Lawyer’s Hot 100 2009 published today.

With regard to Paul they say:

“A rising star in the competition world, Harris has appeared in almost every abuse of dominance case in the past few years. In 2008 he continued his ascent with a slew of sports cases, representing the Fédération Internationale de l’Automobile in the appeal hearing concerning Lewis Hamilton, representing West Ham United FC in its dispute with Sheffield United FC, as well as taking a role in the Carlos Tevez litigation.”

The annual supplement identifies members of the legal profession who have excelled in their chosen fields during the past year.

Paul is delighted to be listed in this year’s edition of the Hot 100.

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Paul Harris QC