The FIA International Court of Appeal has dismissed the appeals brought by Ferrari, Red Bull and Renault against the aerodynamic device fitted to the back of Brawn GP’s car. A five judge FIA panel ruled that Brawn GP’s designs did “comply with the applicable regulations”.
Paul Harris successfully represented Brawn GP.
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Paul Harris QC
R (on the application of Sovio Wines Ltd) v Food Standards Agency [2009] EWHC 382 (Admin)
The High Court case has recently been reported in The Times Online. The case concerns the decision of the Food Standards Agency to seize a consignment of partially de-alcoholised wine which was manufactured using an unauthorised oenological process and was labelled as Spanish semi-sparkling wine. Rebecca Haynes successfully acted for the Food Standards Agency.
For the High Court judgment, please click here.
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Rebecca Haynes
Bouygues & Bouygues Telecom v Commission (State aid) [2009] EUECJ C-431/07
The European Court of Justice has dismissed an appeal by Bouygues (Case C-431/07P) against a judgment by the Court of First Instance (“the CFI”) in Case T-475/04, where the CFI found that the grant of 3G mobile licences by France to Orange and SFR, the two largest mobile phone operators in France did not involve the grant of state aid. Christopher Vajda QC who was instructed by the Paris office of Denton Wilde Sapte, acted on behalf of SFR, both before the CFI and ECJ (addressing the Court in French).
For the ECJ judgment, please click here.
R (on the application of Partridge Farms LTD) v Secretary of State For Environment Food & Rural Affairs [2009] EWCA Civ 284
Christopher Vajda QC (who did not appear in the High Court) successfully represented the Secretary of State for Environment Food & Rural Affairs in his appeal against a judgment of the Administrative Court. which had held that the payments provided for under the Cattle Compensation (England) Order 2006 breached the EC law principle of equality. The principal means of ascertaining the amount of compensation payable under the Order was by means of a tabular valuation, which defined categories of bovine animals and required the average market price for each category to be calculated. For pedigree cattle, the compensation payable was the average market price during the period of six months preceding their slaughter. The judge found that Order discriminated as it did not provide for payment of anything like a reasonable approximation of the true healthy market value of pedigree cows and that the Secretary of State had failed to objectively justify the differential treatment satisfying the requirement of proportionality.
The Court of Appeal held that, although the principle of non-discrimination, applied to prohibit indirect discrimination, it did not preclude legislation of general application from affecting different persons in different ways provided it was determined on the basis of objective criteria formulated to meet the relevant objective. The fact that one particular group was affected to a greater extent than another by a legislative measure did not necessarily mean that the measure was disproportionate or discriminatory inasmuch as it sought a comprehensive solution to a problem of general public importance. In the instant case, there was no discrimination. The true value of any animal once it had tested positive for tuberculosis was the salvage value of its carcass, so the true value of so called “high value” cattle was not materially different from any other cattle which had been diagnosed with tuberculosis. The Order provided for compensation in excess of salvage value of the cattle, which applied to all owners of pedigree cattle. The whole purpose of the Order was to depart so far as possible from individual valuation. The fact that there was no discrimination was also reinforced by the difficulty in determining what were “high value” cattle.
For the Court of Appeal judgment, please click here.
Judgment was delivered on 26 March 2009 in JML Direct Ltd v Freesat UK Ltd [2009] EWHC 616. The case concerned the allocation of Electronic Programme Guide (“EPG”) numbers by Freesat, a new multi-channel TV service owned jointly by the BBC and ITV (an EPG is an on screen television programme guide used by digital TV systems)
JML (a provider of TV shopping channels) claimed that Freesat had, in breach of contract, failed to comply with its own EPG Listing Policy and the Ofcom EPG Code in allocating numbers to the channels broadcasting on its platform. As a result, JML’s channels had been listed lower down the EPG than they should have been. Dismissing JML’s claim, Mr Justice Blackburne held that Freesat’s Listing Policy was an “objectively justifiable method” for the purposes of the Ofcom Code and that, in applying the Policy, Freesat had acted within the margin of discretion afforded to it under its contract with JML. The judgment confirms that, in order successfully to challenge the exercise of contractual discretion, a claimant must show that the party exercising that discretion acted dishonestly, in bad faith or “irrationally” in a sense analogous to the pubic law concept of Wednesbury unreasonableness.
Tim Ward and Ben Lask were instructed by the BBC on behalf of the successful Defendant.
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Tim Ward QC
Ben Lask
Regina (Oriel Support Ltd) v Commissioners for Revenue and Customs
Peter Mantle has, along with other members, been successfully expanding his practice into direct taxes, adding to his reputation as an indirect tax practioner. The case of Oriel Support Limited was recently decided by the Court of Appeal and has been reported in the Times. Peter succeeded at first instance and before the CA in this test case on when liability for PAYE could be removed from an employer to the person who in fact paid the employees’ wages.
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Peter Mantle
Milk Supplies Limited v Department of Environment Food and Rural Affairs [2009] EWHC 503 QB
The High Court has held that a company that used multiple subsidiaries to claim export refunds set aside for small exporters, in circumstances where it had exhausted its own entitlement to refunds, had abused its rights under Community law and was subject to the strict penalties under the Regulation governing the system of export refunds for agricultural products (Regulation (EC) No 800/1999). DEFRA, represented by Rebecca Haynes, successfully opposed the company’s contentions that the artificial practice of diverting exports through subsidiaries was not contrary to the overall objectives of the relevant Community law which, it claimed, was to enable as many exports as possible to be covered by refunds, subject only to the Community’s international obligations under the WTO agreements to cap export aid at an agreed limit. The company further argued that following such cases as Halifax and Weald Leasing there was no basis for applying penalties in cases of abuse of rights and that it was not sufficiently clear that the relevant penalty provisions were intended to apply to abusive practices. DEFRA successfully argued that since the consequence of the application of the abuse of rights doctrine was that there was never any entitlement to the export refunds, it followed that the subsidiaries had over-claimed and that the penalty provisions of the refund system applied. The Court held that as the beneficiary of the money claimed by way of refunds, the company was liable to repay the refunds claimed through its subsidiaries, together with penalties totalling 50% of the amounts claimed and interest.
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Rebecca Haynes
R (on the application of Sovio Wines Ltd) v Food Standards Agency [2009] EWHC 382 (Admin)
The High Court recently upheld the decision of the Food Standards Agency to seize a consignment of partially de-alcoholised wine which was manufactured using an unauthorised oenological process and was labelled as Spanish semi-sparkling wine. Rebecca Haynes, acting for the Agency, successfully defended a judicial review brought on the principal ground that since the Sovio product did not satisfy the definition of semi-sparkling wine contained in the Community Wine Regulation (having an alcohol content of less than 8%), the Agency had no jurisdiction to take action in respect of it. The Court held that the Wine Regulation clearly applied to goods purporting to be wine products and applied a prohibition of the use of the “wine” or “semi-sparkling wine” denomination to any product which failed to meet the Community definition of wine terms. The Claimant also failed to persuade the Court that the Agency was bound by a statement of another public body, Cheshire Trading Standards, erroneously indicating that the labelling was fully compliant with relevant labelling legislation.
For the High Court judgment, please click here.
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Rebecca Haynes
On 4 March, the Competition Appeal Tribunal (CAT) handed down judgment in Tesco’s application for review of one of the Competition Commission’s (CC) remedies in its Groceries Report.
Following a two-year inquiry into the grocery sector, the CC had recommended to central government that a ‘competition test’ should be introduced into the planning system. The CAT held that the CC had failed properly to consider certain relevant considerations relating to the costs and benefits of the competition test. The CAT clarified, however, that it had not concluded that the competition test was unreasonable, disproportionate or otherwise inappropriate or unlawful.
The parties have been invited to address the CAT on the question of specific relief at a hearing on 16 March 2009.
Several barristers from Monckton Chambers were involved in the case. Julian Gregory acted for Tesco.
Peter Roth QC, Daniel Beard, Valentina Sloane and Ewan West acted for the Competition Commission.
Tim Ward and Kassie Smith acted for the interveners, Asda and Waitrose respectively.
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Tim Ward QC
Kassie Smith QC
Julian Gregory
Michael Bowsher QC is set to speak at the 15th Annual Federal Procurement Institute in conjunction with the American Bar Association in Chicago on Wednesday 5th March 2009.
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Michael Bowsher QC
