TCC Guidance Note on Public Procurement Cases: NOW IN FORCE

As of today, 17 July 2017, the new TCC Guidance Note on Procedures for Public Procurement Cases is in force.

A copy of the Guidance Note is here.

Speaking at the launch of the Guidance Note at the Rolls Building Mr Justice Coulson confirmed that parties would be expected to have regard to the guidance contained in the Note from today. The Guidance Note was approved by the Master of the Rolls and will form Appendix H to the TCC Guide, to be published in the next supplement to the White Book.

The TCC Guidance Note on Procedures for Public Procurement Cases was drafted by a working group of TCC judges and practitioners.

Philip Moser QC and Rob Williams of Monckton Chambers were members of the TCC Working Group.

 

5th edition of ‘EU Merger Regulation: Substantive Issues’ published

The 5th edition of ‘EU Merger Regulation: Substantive Issues’ by Alistair Lindsay and Alison Berridge, both of Monckton Chambers, has been published.

The new edition examines recent developments in EU merger control law and practice, covering for example the Commission’s increasing use of quantitative analysis, recent cases on loss of innovation competition and new practice in “failing division” cases.

For more information, or to purchase the book, please click here.

Groundbreaking Administrative Court judgment finds that young child is entitled to damages following absence from education

In  R (E) v London Borough of Islington [2017] EWHC 1440 (Admin) the Administrative Court has held that a local authority is liable in damages to a young child (E) for breach of her human right to education under Article 2 of the First Protocol to the European Convention on Human Rights (A2P1). The Court (Ben Emmerson QC, sitting as a Deputy High Court Judge) also found that the local authority’s assessment of E’s care needs was vitiated by misguided reasoning and therefore unlawful.

The successful education claim marks the first occasion on which the English Courts have upheld a damages claim based on a breach of A2P1, after two Supreme Court judgments as a result of which such claims had failed (A v Head Teacher and Governors of Lord Grey School [2006] 2 AC 363 and A v Essex County Council (National Autistic Society intervening) [2011] AC 280; [2010] UKSC 33).  In the present case, E’s claim concerned three separate periods during which (the Court held) Islington was responsible for providing her with full-time education but – for one reason or another – failed to secure it. Notably, during one of those periods, Islington had accommodated E and her family in temporary homelessness accommodation in another London borough, and yet the Court was satisfied that Islington bore primary responsibility for the breach of E’s A2P1 rights during that period also.  The case will therefore be of interest not only because it is the first example of a successful damages claim based on A2P1 in this jurisdiction, but also because of its implications for local authority’s duties towards homeless children of compulsory school age, including those that they elect to accommodate in a different local authority district.

Following a contested hearing on consequential matters, E was also awarded 100% of her costs, and successfully opposed the local authority’s application for permission to appeal. Having found that E is entitled to damages by way of just satisfaction under section 8 of the Human Rights Act 1998, the Court has also set down a procedure for the determination of quantum.

Monckton’s Ian Wise QC and Michael Armitage acted for the successful Claimant throughout the proceedings, instructed by Rebekah Carrier of Hopkin Murray Beskine solicitors.

Attorney General’s Panels Appointments – Brendan McGurk and Azeem Suterwalla

The Members of Monckton Chambers are pleased to announce that in the recent round of appointments Brendan McGurk has been elevated to the Attorney General’s ‘A’ Panel of Counsel to the Crown and Azeem Suterwalla has been appointed to the ‘B’ Panel.  Both appointments commence from 01 September 2017.

The Attorney General maintains four advisory panels of junior counsel to undertake civil and EU work for all government departments. There are three London panels (an A panel for senior juniors, a B panel for middle juniors, a C panel for junior juniors) and a regional panel.  In addition there are three Public International Law Panels.

In total 21 members of Monckton Chambers are on the AG’s panels:

A  Panel: Raymond Hill, Anneli Howard, Ben Lask, Andrew Macnab, Peter Mantle, Brendan McGurk, Robert Palmer, Valentina Sloane, Rob Williams

B Panel: Alan Bates, Julian Gregory, Ronit Kreisberger, Eric Metcalfe, Azeem Suterwalla, Ewan West

C Panel: Anneliese Blackwood, Tarlochan Lall, Julianne Kerr Morrison, Michael Armitage

Public International Law B Panel: Anneli Howard, Thomas Sebastian

Public International Law C Panel: Nikolaus Grubeck 

For further information, see the Government Legal Department (GLD) website

High Court rules that government’s “benefit cap” is unlawful

In a high-profile judgment DA and others v SSWP handed down today, the High Court (Collins J) has declared that the government’s controversial “benefit cap” policy is unlawful. An earlier version of the policy was considered by the Supreme Court in SG, in which the Supreme Court narrowly (by a 3-2 majority) ruled that the cap did not unlawfully discriminate against women, but also held (by a different 3-2 majority) that the cap contravened the UK’s obligations under Article 3 of the United Nations Convention on the Rights of the Child as a result of its drastic impact on children. In today’s judgment, the High Court has not only re-affirmed that the cap on benefits breaches the UK’s international obligations in respect of children, but that the revised version of the policy also discriminates against lone parents of children under two, as well as against such children in their own right.

The judicial review challenge, brought by four lone parent families, concerned the reduced benefit cap introduced by the Welfare Reform and Work Act 2016. The revised benefit cap drastically reduced housing benefits, leaving lone parent families across the country unable to afford basic life necessities to care for their children. Mr Justice Collins has ruled that the application of the revised benefit cap to lone parents with children under two amounts to unlawful discrimination and that “real damage” is being caused to the Claimants and families like theirs across the country. Upon considering the impact of the benefit cap, Mr Justice Collins concluded that “real misery is being caused to no good purpose.”

The government has been granted permission to appeal.

The judgment has already attracted substantial coverage in the print and broadcast media – The Independent, BBC.

A press release summarising the judgment is available here.

Monckton’s Ian Wise QC and Michael Armitage acted (along with Caoilfhionn Gallagher QC of Doughty Street Chambers) for the successful Claimants, instructed by Rebekah Carrier of Hopkin Murray Beskine solicitors. Ian Wise QC also acted for the Claimants in the SG case.

To read the case note written by Imogen Proud, please click here.

The Times – Grenfell: the legal tasks ahead – Michael Bowsher QC comments on the procurement law aspects

Public Procurement and Construction law specialist Michael Bowsher QC contributed to today’s article in The Times, written by Jonathan Ames which envisages that procurement law specialists will also be involved in the inquiry to the tragedy:

“Michael Bowsher, QC, of Monckton Chambers, acknowledges that discussion is speculative at present, but highlights several likely issues. The inquiry and lawyers involved in any subsequent legal action on behalf of residents will want to investigate the contractual arrangements for the tower’s management and whether there were any financial incentives for “key performance indicators”.

Other core issues, predicts Bowsher, include “has public procurement been so fixed on pursuing the agenda of social value and environmental goals that we have failed to give enough weight to basic performance factors such as safety? And if — and it’s a big if — the root of this tragedy is in the use of prohibited products, defects or poor workmanship, do we need to see if procurement systems are still incentivising short cuts or unduly prioritising procurement law compliance?”

Subscribers to the Times can read the full article here.

To read the article by Michael Bowsher QC on the same topic, published by Practical Law, please click here.

Who’s Who Legal (WWL) – Future Leaders 2017 – Monckton recognised as leading barristers chambers for Competition

Six members of Monckton Chambers have been identified by WWL as “Future Leaders”.  These nominees are practitioners aged 45 or under who are considered to be the future leaders of the international legal community and the recognition is based on the breadth and depth of their competition law expertise.

The six are:

For further detail of this analysis see the WWL website.

This analysis is part of WWL: Competition 2017 which claims to be the most extensive survey of the competition legal market, covering a total of 1,176 lawyers across 62 jurisdictions.

Monckton Chambers’ members received 12 nominations which means that it is one of only two sets of barristers chambers to be recognised in the table of Leading firms and sets in WWL: Competition by number of listed practitioners which is predominantly made up of the major international law firms.

The other six members nominated in addition to the “Future Leader” nominees above are:

Mark Brealey QC’s recent move to Monckton Chambers would take the number of nominees up to 13.  In addition, both George Peretz and Tom Sebastian are nominated for the related category of State Aid.

Michael Bowsher QC speaks to GBC News about Brexit negotiations

Michael Bowsher QC speaks to Jonathan Sacramento, News Editor of GBC News (Gibraltar Broadcasting Corporation) about how Gibraltar and the UK will have to see out the Brexit negotiations before they can make decisions on how European Legislation can be transposed to other institutions under the British Crown. Michael was a guest of the Middle Temple Association in Gibraltar and this was the theme of his address to  law professionals and members of the Judiciary at the Rock Hotel on the 25th May 2017.

Watch the interview here.

The Law Society found to have breached Competition Act

The Tribunal has today handed down judgment in Socrates Training Limited v The Law Society, the first Fast-Track case in the Competition Appeal Tribunal, which concerned the Law Society’s training requirements under its Conveyancing Quality Scheme (“CQS”). Socrates claimed that, as the only supplier of accreditation for conveyancing solicitors, The Law Society held a dominant position in the provision of accreditation from the launch of the CQS in late 2010 and that from 2012 onwards it abused that dominant position by requiring CQS accredited firms to purchase exclusively from the Law Society training in respect of Anti-Money Laundering and mortgage fraud. The Tribunal has today found that the Law Society came to hold a dominant position from the end of April 2015 and that it abused that dominant position by thereafter obliging CQS member firms to obtain the training in mortgage fraud and AML required for CQS accreditation exclusively from the Law Society, and that it breached the prohibitions in Chapter I and Chapter II of the Competition Act 1998 from that date.

Socrates was represented by Philip Woolfe and The Law Society was represented by Kassie Smith QC and Imogen Proud.

High Court rules on Heathrow / Crossrail access dispute

Heathrow Airport Ltd v Office of Rail & Road [2017] EWHC 1290 (Admin)

The High Court (Ouseley J.) has dismissed a judicial review challenge by Heathrow Airport to the decision of the Office of Rail & Road concerning Heathrow’s ability to impose track access charges on Crossrail reflecting the costs of building the Heathrow rail spur.

Crossrail services are due to commence operations into Heathrow in 2018 and will use the Heathrow rail spur, which was funded and built privately by the airport in the 1990s for the Heathrow Express. In May 2016 the ORR determined that, when charging Crossrail access fees to use airport rail infrastructure, Heathrow could not take into account its historical long-term costs of constructing the railway. This meant that ongoing costs to Heathrow of around £40m-£60m a year could not be recovered from Crossrail users and would instead fall on airline passengers. This was a matter of concern to the Civil Aviation Authority, who made representations to the ORR and intervened in the judicial review claim.

In his judgment, handed down today, Mr Justice Ouseley has dismissed Heathrow’s challenge to the ORR’s decision. While accepting that there was force in Heathrow’s criticisms of the decision and the quality of the ORR’s reasoning, the Judge found that it was rationally open to the ORR, on the evidence before it, to conclude: (i) that the railway spur would still have been built even if fare revenues were inadequate to recover any of the long-term costs, given the railway’s importance to the development of the airport; and (ii) that the CAA would not have precluded such costs being recovered from airline passengers.

In relation to whether the Heathrow rail spur is properly exempt from the relevant EU framework as a “network intended only for the operation of urban or suburban passenger services”, the Judge found that the answer was not clear at all and that “rail services to its main airport seem an obvious part of rail services for a conurbation”. However, he ultimately declined to decide the point on the basis that a decision in Heathrow’s favour was likely to cause substantial prejudice to the Crossrail sponsors, and since the point was academic between the parties given their contractual relations.

A copy of the judgment is available here.

Heathrow Airport Limited was represented by Gerry Facenna QC and Ligia Osepciu. The Civil Aviation Authority was represented by its standing counsel, Anneli Howard.