The CAT hearing in Lloyds/HBOS began yesterday and is continuing today.

The Secretary of State is represented by Paul Lasok QC, Paul Harris, Gerry Facenna and Elisa Holmes all of Monckton Chambers.

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Paul Lasok QC
Paul Harris QC
Gerry Facenna
Elisa Holmes

 

 

The Competition Appeal Tribunal have dismissed the application of six individuals known as the Merger Action Group, based in Scotland, to quash the decision of the Secretary of State for Business, Enterprise and Regulatory Reform to clear a merger between Lloyds and HBOS. In arriving at its unequivocal decision, the CAT concluded that “there is simply no basis for the allegation that the issue of the continuing need for the Merger was not properly considered by the decision-maker”.

Also of note was the CAT’s decision on standing. It decided that the members of the Merger Action Group, formed for the purpose of conducting these proceedings, had standing as a result of its “specific interest and strong feeling which the Merger has aroused in Scotland”. This decision has far reaching implications for future challenges of merger decisions, potentially opening the door for any member of the public who operates as a consumer in any relevant market, together with any individual or group with “strong feelings” associated with a particular merger, to challenge such decisions.

The Merger Action Group announced its decision yesterday not to appeal the CAT’s decision.

The Secretary of State was represented by Paul Lasok QC, Paul Harris, Elisa Holmes and Gerry Facenna.

Members of Monckton Chambers have successfully acted for the Secretary of State in each of the two public interest merger challenges which have so far been brought in the CAT. Rupert Anderson QC and Elisa Holmes acted for the Secretary of State in Sky. In that case John Swift QC, Daniel beard and Rob Williams acted for the Competition Commission.

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Paul Lasok QC
Paul Harris QC
Gerry Facenna
Elisa Holmes

In light of the recent announcement by the Chancellor that from the 1st December 2008 the rate of VAT would be cut from 17.5% to 15% members of Monckton Chambers have been advising clients on the implementation of the cut and the effect it may have on the pricing of products.

As a consequence we have recognised the need to establish an advisory panel to assist clients. As the largest VAT team at the Bar and due to the urgent nature of the work required, Monckton Chambers has the capacity to assist clients at short notice and advise by telephone or email or in writing or conference if more detailed advice is required.

Chambers has a wealth of VAT experience at all levels of seniority across a broad spectrum of industry sectors.

For further information please do not hesitate to contact the clerking team on 020 7405 7211.

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