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.

For details of this story, click here.

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Michael Bowsher QC

The Legal 500 2008 UK edition was published on 9 September and for the sixth year running lists Monckton Chambers as one of the leading sets at the London Bar.

In addition to this accolade, we are also delighted to see that our individual recommendations have gone up by a further 12% to a total of 43.

 

The shortlists for these prestigious awards are now online and we are pleased to feature four times in the listings.

Chambers is particularly well represented this year in the Competition and EU category, where we are listed not only for ‘Set of the Year’, but have also scooped two of the three ‘Junior of the Year’ nominations for Daniel Beard and Meredith Pickford. Our fourth nomination is for ‘Set of the Year’ for Tax.

The results will be announced at The Grosvenor House Hotel, Park Lane, on 25 September 2007.

We are delighted to confirm that competition and mergers specialist Alistair Lindsay will be joining Chambers as a tenant next year.

Alistair, who originally started his legal career with Monckton Chambers as a pupil, has decided to rejoin our set, citing our thriving competition practice and the work-life balance opportunities moving to the Bar will bring as the main reasons for his decision to leave his current firm. Senior Clerk David Hockney welcomes the move: “It shows that, as a set, we’re able to attract stellar lawyers within competition circles to complement Chambers.”

Alistair will take up tenancy in September 2009.

More coverage appeared in The Lawyer today, for the full article, please click here.

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The Lawyer’s UK Annual Report revealed Monckton Chambers as a new entry at number 29 this morning.

We are delighted to be listed in the annual countdown, which is worked out primarily by turnover. Our growth over the last financial year was covered in The Lawyer in July and it is our dramatic 26% increase which has returned Chambers to the rankings.

We are also proud to be recognised as the top ranking Chambers for appearances in the ECJ, with twenty-one in the last year, and as eighth in the tables for appearances in the House of Lords, with nine.

 

The presentation of Monckton Chambers’ annual prize for Competition Law took place last week. The prize is awarded each year to the University of Oxford student who has demonstrated the best performance of the year in this area of study.

This year, the University announced joint winners of the prize; Ms Ella Liang and Mr Morris S Schonberg, both of Brasenose College.

Professor Endicott of the Law Faculty Office conveyed his appreciation for our continued support of the prize, adding that it is appreciated by the students “as much for the prestige as for the monetary value…”

The High Court has dismissed a challenge to Ofcom’s powers to represent British Overseas Territories in respect of satellite filings in R(Government of Bermuda) v Ofcom [2008] EWHC 2009 (Admin).

The right to broadcast via a satellite into any particular territory is governed by the rules of the International Telecommunications Union (“ITU”). Those rules have the status of an international treaty. Under the Communications Act 2003, and directions made by the Secretary of State, Ofcom represents the United Kingdom, the Isle of Man and Bermuda (together with a number of other territories) before the ITU. Bermuda challenged a decision by Ofcom to make a filing on behalf of the Isle of Man that Bermuda argued would cause “harmful interference” within its territory. Ofcom rejected that contention by application of the standards that the ITU itself applies.

The central legal issue raised by Bermuda was whether Ofcom’s duty to “represent” Bermuda permitted it to make a filing on behalf of the Isle of Man that was contrary to Bermuda’s wishes, and accordingly, whether Ofcom had power to adjudicate in the dispute between Bermuda and the Isle of Man. Bermuda contended that Ofcom was obliged to refer its concerns to the ITU. Goldring J rejected the claim. His Lordship concluded that Ofcom was required to resolve a conflict between the Isle of Man and Bermuda, both of which it represented. It was necessary or incidental to Ofcom’s duty to represent both territories that it had the power to resolve the dispute between Bermuda and the Isle of Man, and that its approach to that dispute was lawful.

Christopher Vajda QC and Tim Ward acted for Ofcom.

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Tim Ward QC

Judgment was given on 8 August 2008 in British Afternoon Greyhound Racing Services (and others) v Amalgamated Racing Ltd (and others). The case concerned a challenge under Article 81/Chapter I to the lawfulness of licensing arrangements for the supply of a new televised service, known as Turf TV, which shows live horseracing in licensed betting offices (“LBOs”).

Until the advent of Turf TV, there was a single monopoly supplier of live televised horseracing in LBOs known as SIS. In order to introduce competition into the market, 31 British racecourses entered into a joint venture with Alphameric to create a new distributor, AMRAC, with the racecourses licensing their exclusive LBO rights to AMRAC. The claimants, which included three of the four largest bookmakers in the UK, alleged that the courses had licensed their LBO rights on a collective, exclusive and closed basis in breach of Article 81/Chapter I. During the course of the trial, it was also alleged that the racecourses and AMRAC had engaged in price fixing.

The claim was comprehensively dismissed by Mr Justice Morgan who found that there had been no price fixing and that the licensing arrangements did not infringe Article 81(1) or Chapter I. Judgment on a counterclaim alleging collusion by some of the claimants in collectively refusing to take the new Turf TV service and denying sponsorship to courses that had joined in the new venture will be given separately next term.

The defendants were represented by Peter Roth QC, Paul Harris, Ronit Kreisberger and Ewan West instructed by Wiggin LLP.

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Paul Harris QC
Ronit Kreisberger
Ewan West