This week the High Court is considering an application by Stuart Wheeler for judicial review brought against the Prime Minister and Foreign Secretary. Mr Wheeler challenges their decision not to hold a referendum on whether the United Kingdom should ratify the Treaty of Lisbon. He argues that the Government made unequivocal promises that a referendum would be held to allow the electorate to vote on whether the now defunct Constitutional Treaty should be ratified, and that the refusal to hold a referendum in respect of the Treaty of Lisbon is unlawful as being in breach of his legitimate expectation.

Ian Rogers is appearing as junior counsel on behalf of the Prime Minister and Foreign Secretary.

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Ian Rogers

On Wednesday 4 June, Jeremy McBride was appointed a member of the new Scientific Committee of the European Union’s Fundamental Rights Agency.

The Agency is an independent body of the European Union, established to provide assistance and expertise to the European Union and its Member States when they are implementing Community law, on fundamental rights matters. The aim is to support them to respect fully fundamental rights when they take measures or formulate courses of action. The Scientific Committee is intended to serve as guarantor of the scientific quality of the Agency’s work.

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Jeremy McBride

 

The CAT handed down judgment in two major appeals on 20 May (the appeals having been heard together in January and February):

(1) Mobile Call Termination – in which the CAT upheld Ofcom’s finding that H3G had significant market power in the market for mobile call termination on H3G’s network, and its related decision to impose a price cap on H3G’s termination charges (i.e. the charges imposed by H3G on other mobile network operators for connecting calls to H3G subscribers).  Ofcom is empowered to impose “SMP Conditions” by Part 2 of the Communications Act 2003, which gives effect to a raft of EC communications directives.  Ofcom made similar findings in relation to the other mobile network operators, but there were not appealed.  H3G’s appeal against the level of the price cap (together with a similar appeal by BT) is currently before the Competition Commission – as the first price control reference under s.193 of the Communications Act 2003.

(2) Termination Rate Disputes – in which the CAT upheld appeals by T-Mobile, BT, H3G and the FNOs (a group of fixed network operators led by Cable & Wireless) against Ofcom’s resolution of a number of disputes between (a) BT and each of the MNOs; and (b) H3G and each of O2 and Orange.  Ofcom is empowered to resolve disputes between communications providers under s.185 of the Communications Act 2003, which also gives effect to the EC communications directives.  In this case, each dispute concerned the prices charged by the MNOs for mobile call termination, and in each case Ofcom had upheld rates that were said by the appellants to be too high.  The Tribunal is currently considering the level at which Ofcom should have fixed the rates in dispute, and intends to remit the matter to Ofcom with an appropriate direction.

Peter Roth QC, Josh Holmes and Ben Lask represented OFCOM

Jon Turner QC and Meredith Pickford represented T-Mobile whilst Anneli Howard appeared for BT.

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Jon Turner QC
Josh Holmes
Meredith Pickford
Anneli Howard
Ben Lask

On Tuesday 3 June the hearing resumed at the High Court in the matter of British Afternoon Greyhound Racing Services (and others) v Amalgamated Racing Ltd (and others).  The case concerns a challenge to the lawfulness of arrangements for the licensing of picture rights by 30 British racecourses for broadcast to licensed betting offices by the new entrant Turf TV (a joint venture between the racecourses and Alphameric plc), and a counterclaim against 3 of the largest British bookmakers, Ladbrokes, William Hill and BetFred.

The defendants are represented by Peter Roth QC, Paul Harris, Ronit Kreisberger and Ewan West, together with Brian Doctor QC (Fountain Court Chambers), instructed by Wiggin LLP.

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Paul Harris QC
Ronit Kreisberger
Ewan West

The Competition Appeal Tribunal has dismissed an appeal by Independent Media Support (IMS) against Ofcom’s decision that Red Bee Media had not infringed the Chapter I or Chapter II prohibitions in the Competition Act 1998.  Both IMS and Red Bee are providers to UK broadcasters of TV ‘access services’ (such as subtitling, signing and audio description).  IMS had complained to Ofcom that Red Bee had, in 2004, tendered a below cost price for a long-term exclusive contract to supply such services to Channel 4 and that this was a breach of the Chapter II prohibition.  IMS also alleged that the length and exclusive nature of the contract infringed Chapter I. In a decision issued in 2007, Ofcom rejected these complaints on the basis that: (a) the proper time for assessing the alleged infringement of the Chapter II prohibition was limited to 2004 (the time when Red Bee bid for, and won, the Channel 4 contract), and Red Bee was not dominant at that time, with the consequence that no infringement of Chapter II could be established; and (b) given that there remained at least three credible bidders able to bid for contracts to provide such services to UK broadcasters whenever bids were called for, the duration of the exclusive agreement was not such as to infringe the Chapter I prohibition either. IMS appealed to the Tribunal.

In dismissing the appeal, the Tribunal upheld Ofcom’s reasoning, and confirmed that the proper time for assessing whether Red Bee was dominant for the purposes of investigating the Chapter II complaint was 2004.  Thus, even if Red Bee had become dominant after 2004, that would not have given rise to an infringement of Chapter II as, once the Channel 4 contract had been signed, Red Bee had no choice as to the prices which it could charge Channel 4.  Accordingly, even if those prices were below cost, the contract could continue to operate according to its terms and did not have to be re-tendered. A source quoted in Global Competition Review described the Tribunal’s judgment as a “full tick” for Ofcom which was represented by Rupert Anderson QC and Alan Bates.

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Alan Bates

 

The appointment was confirmed on Monday 12 May and we congratulate Peter on such a great achievement.

Head of Chambers, Paul Lasok QC, said, “Peter Roth QC’s appointment as a Deputy High Court Judge shows that his qualities as a successful practitioner mark him out as having the intellectual calibre and judgment to make a successful High Court judge.”

We are delighted that Tim Ward has been shortlisted in the category of ‘Barrister of the Year’ at the Lawyer Awards 2008. Representatives for the annual ceremony announced their shortlists of successful nominees on Monday 12 May. Tim is the only Junior barrister on the shortlist this year which is a real testament to the calibre and quality of his advocacy and litigation experience. The results will be announced on 24 June 2008 at the award ceremony at the Grosvenor House Hotel.

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Tim Ward QC

Christopher Vajda QC spoke at the Lawyer Conference held on 7 May 2008 on the EC White Paper on damages actions for breach of EC antitrust rules. He spoke on the subject of access to evidence and what, if any, changes the White Paper would herald for the disclosure regime in England and Wales

The Competition Appeal Tribunal (‘CAT’) has refused permission to bring claims for damages said to arise from the EC Commission’s decision finding an infringement of Article 81(1) EC in relation to electrical and mechanical carbon and graphite products against a number of proposed defendants, including Le Carbone Lorraine SA, while their appeals to the Court of First Instance against that decision are pending. The CAT held in an earlier judgment that the two year time limit for bringing a follow on claim for damages in the CAT does not begin to run until any appeals against that decision have been determined and that permission is required to bring a claim at any time before that date. The CAT distinguished the position of Le Carbone and others from the claims against Morgan Crucible plc, in respect of which it granted permission in an earlier judgment. Morgan has not appealed the Commission’s decision. The CAT’s decision to refuse permission means that it was not necessary for it to deal with various detailed arguments advanced by the proposed defendants regarding the Tribunal’s jurisdiction under the Brussels Regulation.

Daniel Beard was instructed on behalf of Le Carbone Lorraine by Ross & Co on the application for permission.

Ben Rayment was instructed by Sullivan & Cromwell LLP on behalf of Morgan Crucible plc.

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Daniel Beard QC
Ben Rayment

On Wednesday 30 April 2008, the Appeal Panel of the ECB unanimously allowed appeals by three South African cricketers against the decision of the ECB to refuse to register them as Qualified Cricketers for the English 2008 season. The ECB had refused to register them because they had played cricket for the Indian Cricket League. The Appeal Panel directed the ECB to register the cricketers forthwith. In view of the urgency of the situation the Appeal Panel gave its decision today and will provide its reasons later.

Christopher Vajda QC, Paul Harris, Josh Holmes and Ewan West acted for one of the cricketers, Johannes Van Der Wath, instructed by Sheridans.

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Paul Harris QC
Josh Holmes
Ewan West