Calltel Telecom Ltd and Opto Telelinks (Europe) Ltd ~ News Update

Following the ECJ’s judgment in Kittel v Belgium, the scope and application of the “means of knowledge” (“MoK”) test in cases of “Missing Trader Intra-Community” VAT fraud (“MTIC” or “carousel” fraud) has been considered twice at interim hearings in UK cases: in Dragon Futures Limited (Decision of the VAT & Duties Tribunal dated 10 October 2006) and Just Fabulous (UK) Ltd & ors [2007] EWHC 521 (Admin).

A decision in the first MoK case after a full hearing on the facts was delivered by the VAT & Duties Tribunal Calltel Telecom Limited and Opto Telelinks (Europe) Limited v HMRC on 20 July 2007.

The Tribunal approved of the application of Kittel to chains of transaction (and to so-called “contra-trading”) and found that the Appellants were not entitled to their repayment claims for VAT, despite their not having dealt directly with any defaulting trader, due to their being “connected with” MTIC fraud within the meaning of the test in Kittel.  The Tribunal found that these particular Appellants had had actual knowledge, but it found in the alternative that the same would have been the case on the basis of MoK.

The Tribunal also gave guidance on the disclosure required in cases of this type.
The Appellants have appealed to the High Court by Notice of Appeal dated 14 September 2007.

Philip Moser acted for HMRC.

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Philip Moser QC



Premier League Panel’s Ruling on Heinze Transfer

After a two-day hearing on 20th and 21st August 2007 the Premier League’s Arbitration Panel decided that Manchester United would not be forced to sell Gabriel Heinze to Liverpool.

The arbitration centred on a letter dated 13th June 2007 which according to Heinze gave him written permission to pursue a transfer to another club.

The panel decided that the disputed letter did not constitute a binding agreement for Manchester United but only an ‘agreement to agree’ and thus did not create an obligation to sell the player.  They also agreed it should be interpreted in context of verbal discussion and the club’s policy of not transferring players to Liverpool.

Heinze has now transferred to Real Madrid.

Paul Harris was instructed by Edward Canty at Brabners Chaffe Street on behalf of Manchester United.

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Paul Harris QC



Welsh Water Allowed to Appeal CAT Decision

The Court of Appeal (Rix, Thomas LJJ) has granted Dwr Cymru Cyfyngedig (Welsh Water) permission to appeal against two judgments of the Competition Appeal Tribunal (CAT) in Albion Water Ltd v Water Services Regulation Authority.

The permission is limited to two issues, namely whether:

  • the CAT applied the wrong legal test for margin squeeze in its judgments of 6 October 2006 and 18 December 2006
  • the CAT had jurisdiction under the Competition Act 1998, Schedule 8, para 3(2) to determine whether Dwr Cymru held a dominant position in a relevant market in the UK in the absence of a prior decision on that issue by Ofwat.

Welsh Water’s application for permission was refused on paper, but was granted following reconsideration of that earlier decision at a hearing end of July 2007.

Christopher Vajda QC and Meredith Pickford represented Welsh Water and Rupert Anderson QC and Valentina Sloane represented OFWAT.

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Meredith Pickford
Valentina Sloane



Successful Challenge to NICE on Access to Alzheimer’s Drugs

Today the High Court handed down judgment in the case of R (Eisai Ltd) (Alzheimer’s Society & Shire Ltd, Interested Parties) v. the National Institute for Health and Clinical Excellence.

In her judgment, Mrs Justice Dobbs ruled that NICE had failed in its duty to ensure that its guidance was not discriminatory and that there was a need for NICE to clarify its position as to the circumstances when doctors may exercise their own clinical judgment about whether a patient should have access to drug treatments, overriding NICE’s recommendations when it is appropriate to do so.

The court did not find that the NICE guidance itself (which recommends Alzheimer’s drugs only for patients in the moderate stage of Alzheimer’s disease) or the way in which NICE had calculated benefits of the drugs for carers was irrational.  The Judge also dismissed an argument by drug manufacturer Eisai that the decision-making process was unfair because NICE’s cost effectiveness model was not made public.

However, ordering NICE to amend its Guidance, Mrs Justice Dobbs made strong criticisms of NICE’s failure to comply with its statutory equality duties under the Race Relations Act and the Disability Discrimination Act.  Upholding the challenge by Eisai and the Alzheimer’s Society, the Judge found that “no proper consideration was given to NICE’s duties as a public authority to promote equal opportunities and to have regard to the need to eliminate discrimination” and that, at the stage of formulating its Guidance, NICE had not considered or complied with its “due diligence” equality duties, and it did not appear that any thought was given to present or imminent obligations under anti-discrimination law.

The Alzheimer’s Society, representing the interests of people with dementia and their carers, acted as one of a number of separate interested parties in this challenge.

Tim Ward and Gerry Facenna were junior counsel to the Alzheimer’s Society.

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Tim Ward QC
Gerry Facenna



The End of the Line for the Mobile Telecoms Operators and their VAT Refund Claims?

Case C-369/04 Hutchison 3G UK Ltd & Others v CEC and Case C-284/04 T-Mobile & Others v Austria, Judgments of 26 June 2007

The ECJ has held that a Member State’s auction of 3G licences does not constitute an economic activity and so falls outside the scope of the Sixth Directive.  In finding that claims by successful bidders for recovery of allegedly-paid VAT have failed at the first hurdle, the ECJ declined to offer any observations on the other questions referred.  Issues such as when treatment of a public authority as a non-taxable person will lead to “significant distortions of competition” therefore remain shrouded in uncertainty.  There is, however, an interesting gleam of light in the short judgment. In departing from the Opinion of Advocate General Kokott, the ECJ has indicated that the door is open for the crossfertilisation of certain concepts in VAT and competition law.

CAT Dismisses Brannigan Appeal

On 26 July 2007, the Competition Appeal Tribunal unanimously dismissed an appeal brought by a local newspaper proprietor,  Mr. Brannigan, which challenged the OFT’s refusal to investigate a complaint under the Competition Act 1998.

Mr. Brannigan complained to the OFT that two rival publishers, Newsquest and Johnston Press had engaged in exclusionary practices contrary to the Chapter I and II prohibitions which had forced him out of the market in the East Sussex area.  He claimed that Newsquest had threatened litigation, cancelled the printing slot for his publication, launched a “spoiler” free newspaper and had targeted Mr. Brannigan’s customers with selective discounts conditional on them advertising exclusively in Newsquest’s papers.

The OFT rejected Mr. Brannigan’s complaint on its administrative priorities but offered to reassess the complaint at a hearing on 26 April 2006, after the CAT refused to strike the case out.  On re-assessment, the OFT rejected the complaint on the basis that there was no clear evidence of dominance or abuse.  It also refused to investigate the complaint further for reasons of administrative priority. Mr. Brannigan appealed that rejection to the CAT, which dismissed his appeal against the decision on the grounds that on the facts available there was not enough evidence to suggest that the OFT had made any material error of law, fact or appraisal.  As to the question of whether the OFT should have conducted further investigations, a decision by the OFT not to carry out an investigation under section 25 or to reject a complaint otherwise than on the grounds that there has been no infringement was a decision which could only be challenged before the Administrative Court, not the Tribunal.

Daniel Beard and Anneli Howard represented the OFT.

Jennifer Skilbeck and Ben Rayment assisted Brannigan pro bono at the preliminary stages of the appeal, who appeared in person at the hearing.

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Daniel Beard QC
Ben Rayment
Anneli Howard



Competition/EU Set of the Year Nomination

We are delighted to announce that Monckton Chambers has been nominated as “Set of the Year” for Competition and EU for the third year running as part of the Chambers Bar Awards 2007 held in recognition of the high quality work done at the Bar.  These nominations are the result of research conducted for the next edition of Chambers UK.  We also offer our congratulations to Peter Roth QC who in the same category has been shortlisted as “Silk of the Year”.

We would like to take this opportunity to thank all our clients for their continuous support.

Tour Operators Challenge Air Passenger Duty

Judgment is expected in September in R(Federation of Tour Operators) v HM Treasury.

The Federation of Tour Operators challenged the recent increase in the rate of Air Passenger Duty, a tax upon the carriage of passengers by air, which is typically passed on by airlines to their passengers.

Tour Operators sell flights as part of package holidays but are prevented by the Package Travel Regulations from passing on the increase in the tax to customers who had already made bookings, but not yet travelled, at the time this increase took effect.  They argued that the Treasury overlooked this difficulty and that as a result a burden of £45 – £50m of the tax has unintentionally stuck with them, giving rise to a breach of their “right to property” protected by Article 1 of the First Protocol to the ECHR.  They further argued that the entire tax was contrary to the Chicago Convention on aviation, and Community law.

Tim Ward acted as junior counsel for the tour operators.

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Tim Ward QC

Lords Rewrite the Law on Debt Repayment

On 18 July 2007 the House of Lords gave judgment in Sempra Metals Ltd v. HMRC [2007] UKHL 34, the latest instalment in the long running Advance Corporation Tax (‘ACT’) group litigation.  The decision has already been described as having rewritten the law on debt repayment (The Times, 18 July 2007).

Sempra, formerly Metallgesellschaft Ltd., was one of the original claimants in the EC challenge to the UK’s ACT regime, part of which the ECJ held to be contrary to the right of establishment under Article 43 EC.  After the ECJ decision in 2001, five test cases proceeded, in order to resolve various issues arising out of the numerous claims for compensation by foreign companies and UK subsidiaries in respect of premature payments of ACT made between 1973 and 1999.  Four of the test cases have now progressed through the domestic courts and been decided by the House of Lords (Pirelli [2006] UKHL 4; Deutsche Morgan Grenfell [2006] UKHL 49; Boake Allen [2007] UKHL 25 and Sempra).  The fifth case, Test Claimants in Class IV, was referred by the High Court back to the ECJ, which delivered judgment in December 2006.

The appeal in Sempra raised two issues.  The first was the effect of the ECJ’s decision in Metallgesellschaft, on which the Court of Appeal had taken the view that the ECJ decision required the English courts to award compound interest to Sempra, regardless of the position in national law.  The House of Lords unanimously rejected that view, agreeing with the Revenue that the appropriate remedy was a question to be determined by national law, subject only to EC principles of ‘equivalence’ and ‘effectiveness’.

Secondly, the Revenue contended that Sempra had no cause of action in English law by which it could recover compound interest.  On this point, their Lordships sided with Sempra: Lords Hope and Nicholls concluded that there is a right at common law to recover compound interest representing the objective ‘time value of money’ as personal restitutionary relief in a claim for money paid under a mistake of law.  Lords Mance and Walker agreed that compound interest was available, but as an equitable discretionary remedy, rather than as of right at common law.  Lord Scott dissented, taking the view that compound interest could be claimed as damages but that Sempra had no restitutionary claim for interest based on a breach of EC law.  Lord Scott agreed with Lords Hope and Nicholls, however, that such a claim, if it existed, should be as of right at common law, and not available purely as a discretionary equitable remedy.

Their Lordships also disagreed on the appropriate measure of recovery: Lords Mance and Scott dissented from the majority view that recovery should reflect the objective ‘time value of money’, reasoning that Sempra could only recover the interest the Revenue actually earned in the relevant period.  All agreed, however, that a claimant may recover compound interest as damages, and the majority took the view that such a claim is available in all cases of late payment of debts.  On the particular facts of this case, their Lordships also agreed that recovery should be calculated by reference to the government borrowing rate, rather than the higher market borrowing rate contended for by Sempra.

Gerry Facenna is acting as junior counsel for HM Revenue & Customs in two of the five ACT group litigation test cases, Sempra and Pirelli.

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Gerry Facenna



£30m Damages against the Commission

On 12 July the Court of First Instance in Luxembourg awarded over 100 individuals, largely from Britain, substantial damages against the European Commission.  It ordered the Commission to pay almost £30m in relation to two linked sets of claims.

The individual claimants all worked at the EU’s nuclear fusion project (JET) based at Culham in Oxfordshire but they were not given the status of European employees.  Therefore they were denied the pay, pension rights and other benefits of the EU employees who worked alongside them carrying out the same functions on one of the largest scientific projects in Europe.  After a 7 year legal battle, involving three hearings in Luxembourg, the Court of First Instance first found that the Commission had committed “serious misconduct” by practising “long-term discrimination” against the claimants, and then fixed the amount of damages that each claimant can recover.

Two group actions were brought on behalf of over 100 contractors.  One group was represented by Peter Roth QC, Ian Hutton and Ben Lask, the other by Daniel Beard, all of Monckton Chambers.

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Daniel Beard QC
Ben Lask