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

Case C-288/07 Isle of Wight District Council and others v Her Majesty’s Revenue and Customs

Local authorities acting as public authorities are outside the scope of VAT unless not to tax their activities “would lead to significant distortions of competition” with private sector operators. Off street car parking in the UK is provided both by local authorities and private companies. In this context HMRC considered that the “competition” test was satisfied and that Local Authorities were subject to VAT in providing off street car parking. The correct interpretation of the competition test raised a series of legal questions that were ultimately referred by the Chancery Division to the ECJ for clarification.

Before the VAT Tribunal HMRC contended that an “activities” approach should be adopted. In other words, whether there was an effect on competition should be assessed on a broad brush basis across the UK rather than on a local authority by local authority basis. They further argued that “significant” meant more than “de minimis” and that “would lead to” included an assessment of potential competition, of which there only needed to be a possibility. Those arguments did not find favour with the Tribunal. HMRC appealed to the Chancery Division (Rimer J.) who decided to stay the case and make a reference on the issues raised by HMRC’s arguments.

In its Judgment the ECJ concluded that the activities approach was the correct approach, that future competition was relevant provided it was a real possibility, and that “significant” meant more than “egligible”.

HMRC were represented by Christopher Vajda QC, Paul Harris and Ben Rayment.

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Paul Harris QC
Ben Rayment

 

The Competition Appeal Tribunal has allowed an appeal by Vodafone against Ofcom’s decision to change the system of number portability: Vodafone v Ofcom [2008] CAT 22. Number portability is the process which enables a subscriber to a fixed or mobile network to retain their telephone number when they change network operator. Ofcom’s decision proposed technical changes to the mechanism by which portability takes place and a speeding up of the process of portability in the case of mobile numbers. The Tribunal held that the cost benefit analysis conducted by Ofcom in support of its decision could not withstand the “profound and rigorous scrutiny” of the Tribunal on “an appeal on the merits” pursuant to s.195 of the Communications Act 2008. It has remitted the matter to Ofcom for reconsideration.

Tim Ward acted for Vodafone

Alan Bates acted for Ofcom, whilst Meredith Pickford  and acted for T-mobile.

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Tim Ward QC
Meredith Pickford
Alan Bates

Michael Bowsher QC successfully represented McLaughlin and Harvey Ltd this week in the High Court of Northern Ireland. The firm had been excluded from bidding for government contracts, put at £800m.

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Michael Bowsher QC