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

Our flagship VAT event took place on Tuesday 29 April at the Kingsway Hall Hotel. Once again in association with Lexis Nexis, the event brought together some of the leading practitioners in VAT to discuss updates in the principles of EU law which underpin the VAT system.

Seven speakers from Monckton Chambers, along with special guests from the European Commission, HMRC, Eversheds and BT, all shared their expertise with the delegates.

Topics included:

• The Relationship Between VAT and Customs Duties
• Fiscal Neutrality and Competition
• VAT Avoidance and the Follow-Up from Halifax
• Developments from the ECJ
• Loyalty Schemes
• Maximising Input Tax Recovery Whilst Minimising Output Tax Liability.

The OFT announced today (23 April) that it had settled the judicial review and defamation actions brought against it by Morrisons.

In September last year, the OFT issued a press release with a Statement of Objections against a number of large supermarkets and dairy processors. Morrisons was one of the supermarkets included in the Statement of Objections.

Today’s statement said, “The OFT regrets that the press release contained these serious errors, and wishes to apologise sincerely to Morrisons for their publication.”

To read the statement in full, please click here.

Meredith Pickford acted for Morrisons, instructed by Wilmer Hale.

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Meredith Pickford

The Court of Appeal gave judgment on Wednesday 16 April in an appeal brought by Abbey Mine Limited (“AML”), the disappointed applicant for a coal mining licence at the Margam site in South Wales.

Margam has large reserves of high quality coal, and once it is operational, will supply virtually all the coking grade coal mined underground in the United Kingdom. The Coal Authority awarded the licence to Corus, the steel producer, instead of to AML.

AML brought judicial review proceedings to challenge the Authority’s decision, alleging procedural unfairness. At first instance, Mrs Justice Dobbs rejected AML’s complaints. On appeal, the Court of Appeal has once again found for the Authority.

The Court of Appeal’s judgment, delivered by Lord Justice Laws, contains important guidance as to what constitutes a fair procedure in competitive licensing cases. The Court held that “in a competition case like this. fairness imposes two broad requirements: (1) that an applicant by told the substance of the decision-maker’s concerns about his own case, and (2) that each applicant be treated like every other: there should, to use the hackneyed phrase, be a level playing-field. the applicant is entitled to be told of the decision-maker’s concerns about his own case, but not the details of his rival’s case”.

Christopher Vajda QC and Josh Holmes acted for the Coal Authority, instructed by Nabarro.

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Josh Holmes