The High Court delivered judgment in Greenpeace v Secretary of State for Trade and Industry on 15th February 2007.  Greenpeace sought to challenge the Government’s decision in the Energy Review Report 2006, The Energy Challenge, published on 11 July 2006, to support nuclear new build as part of the United Kingdom’s future energy-generating mix.

The submissions of Greenpeace centred on the promise by the Government in the 2003 Energy White Paper, “Our energy future – creating a low carbon economy”, to carry out full public consultation on the issue before it decided whether or not to change its declared policy position not to support nuclear new build.

The High Court gave Greenpeace declaratory relief that their legitimate expectation had been frustrated and that the procedure followed was unfair, such that the decision to support nuclear new build was unlawful.

Sullivan J held that the consultation exercise had been very seriously flawed.  The consultation document: “Our Energy Challenge. Securing clean, affordable energy for the long-term”, gave every impression of being an issues paper, rather than a consultation paper on the substantive issue, as to whether the Government should support nuclear new build in the future.  As a consultation paper, it was inadequate since it offered no proposals and there was insufficient information given to consultees to enable them to make an intelligent response.

With regard to the issue of nuclear waste arising from new build, Sullivan J found that the consultation had not merely been inadequate but had been misleading in relation to the position of the Committee on Radioactive Waste Management (CORWM). CORWM’s draft report was only published two weeks after the consultation period had closed.  Sullivan J held that fairness, in this situation, required consultees to be able to respond to this new material.

Kassie Smith was acting for Greenpeace as a junior barrister in this high profile case.

 

 

 

We extend our warmest congratulations to Paul Harris and Tim Ward who have been elevated to the A Panel of Junior Counsel to the Crown and to Ian Hutton and Meredith Pickford for their elevation to the B Panel. Similarly, we are also very pleased to announce that Ian Rogers’ application to the B Panel was successful.

 

The Court of Appeal has handed down its keenly anticipated judgment in Attheraces Limited v. The British Horseracing Board Limited [2007] EWCA Civ 38 (judgment of 2 February 2007) which raised an important question which has long been a source of considerable difficulty for competition lawyers: at what point do prices charged by a dominant undertaking cross the threshold of being so excessive as to constitute an abuse?

The question arose in a dispute between the British Horseracing Board Ltd (“the BHB”) (the administrator and governing body of British horseracing) and Attheraces Ltd (“ATR”) (a broadcaster whose output largely consisted of information concerning British races). The BHB had engaged a third party to compile and distribute certain pre-race data on the BHB’s behalf. ATR sought to negotiate with the BHB to be supplied with that data for the purposes of two relatively new broadcasted services which ATR was supplying to bookmakers outside of the UK and Republic of Ireland. The BHB refused to supply the data except in return for a 50 percent share of ATR’s profits from the two services.

ATR then commenced proceedings in the Chancery Division, alleging that the BHB had abused its dominant position in the market for supply of pre-race data in respect of British races by, inter alia, charging excessive prices. The High Court agreed, holding that the prices demanded by BHB for supplying the data to broadcasters were abusive, essentially because they yielded profits for BHB which significantly exceeded the “cost+ formula” (i.e. the BHB’s costs of compiling and distributing the pre-race data, together with a reasonable return on those costs). The BHB appealed.

The Court of Appeal has allowed BHB’s appeal, holding that the High Court had been wrong to regard the “economic value” of the pre-race data as limited to the product of the cost + formula. In a judgment which was firmly rooted in the purposes of competition law (namely, to protect competition and consumers), the CA stated that the High Court should not have found BHB’s prices to have been “excessive” despite there being no evidence that those prices were undermining competition in downstream markets. Further, even if the BHB’s prices had been “excessive”, they were arguably not “unfair”, and therefore arguably not abusive, having regard to the activities undertaken by BHB in administering and funding aspects of British racing, which activities produced benefits to ATR which were not reflected in the costs of compiling and distributing the pre-race data.

Peter Roth QC acted for the successful appellant.

On 8th January 2007, The Lawyer published The Hot 100 which identified members of the legal profession who have excelled in their chosen fields during the past year. The edition features a section for Competition law in which Ronit Kreisberger was highlighted.

“This time last year Ronit Kreisberger was a senior associate and qualified solicitor advocate at Herbert Smith. She made waves last March when she decided to make the switch to the bar and, as a competition expert, found a natural home at Monckton Chambers. Kreisberger is now one of the set’s rising stars.

Kreisberger hit the ground running in her new role by acting for the OFT when it intervened in House of Lords proceedings in Inntrepreneur Pub Company v Crehan, the first case in which a UK court awarded damages for harm suffered as a result of a competition law infringement. This brought an end to a case that had been rumbling on for 15 years.

More importantly, this case may have proved Kreisberger’s intellectual credentials with Monckton, but her ‘seven years at the coalface’ at Herbert Smith have afforded her commercial nous and an understanding of what clients and solicitors want from their barrister – a rare combination”