Two wrongs don’t make a right: The Supreme Court’s Decision in R (Gallaher and Somerfield) v Competition and Markets Authority [2018] UKSC 25

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The Supreme Court has considered the way in which the OFT conducted its ‘Early Resolution’ settlement negotiations with parties who were subject to its tobacco investigation.  In overturning the decision of the Court of Appeal, the Supreme Court has held that a mistake made to the benefit of one party in a settlement negotiation is not required to be replicated to the benefit of other similarly situated parties. It so concluded on the basis of traditional principles of public law rationality, rejecting the opportunity to fashion any stand-alone principle relating to mistakes in public law.

Daniel Beard QC and Brendan McGurk acted for the successful appellant, the CMA.

Click here for the full judgment.

Anneli Howard joins former Lord Chancellor Kenneth Clarke QC MP to argue for the motion “The first casualty of Brexit will be City talent!” in the first of Thomson Reuters Legal Debates for 2018

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Anneli Howard is one of the four “heavyweights from law and politics” being brought together on Thursday 7th June, for a contentious debate on Brexit and the future of the City’s talent.  The debaters will argue the motion “The first casualty of Brexit will be City talent!”

 

Arguing FOR the motion:

Kenneth Clarke QC MP, Member of Parliament for Rushcliffe and former Lord Chancellor

Anneli Howard, Barrister, Monckton Chambers

 

Arguing AGAINST the motion:

Michael Howard, Former leader of the Conservative party

Francis Hoar, Barrister, Field Court Chambers

 

The debate is being chaired by Axel Threlfall, Editor at Large, Reuters.

The Legal Debates are a series of evening events for key partners of Thomson Reuters and key customers of legal solutions.

House of Commons International Trade Select Committee backs George Peretz QC on improvements to the proposed Trade Remedies Regime

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In its report published today on the Government’s proposed legislation setting up a Trade Remedies Authority (TRA) the House of Commons Select Committee has backed a number of recommendations made by George Peretz QC (who gave written and oral evidence to the Committee’s inquiry).

The TRA will, along with the Secretary of State for International Trade, administer after Brexit trade defence measures (anti-dumping duty, countervailing measures, and safeguard measures) permitted under WTO rules.

Among other matters, the Committee agreed with George that: –

  • the International Trade Select Committee should have a formal role in appointments as chair and chief executive of the TRA;
  • the TRA should not apply an “economic interest” test but that a decision to refuse trade defence measures on grounds of economic interest, as a political decision, should be reserved to the Secretary of State
  • the Bill should provide on its face that that there was a right of appeal to the Upper Tribunal against decisions to impose and to refuse trade defence remedies, and that such appeals should be “on the merits” rather than just by way of judicial review.

George’s detailed article on the Government’s proposals is here.

Professor Carl Baudenbacher in The Brief – Comment on how Britain can be a leader of outsiders after Brexit

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Professor Carl Baudenbacher is the author of the “Comment” in today’s legal affairs bulletin, The Brief. Published by The Times and produced by Jonathan Ames and legal affairs editor Frances Gibb, The Brief compiles the most important and influential news in the legal industry on a daily basis. Professor Baudenbacher’s “Comment” explores how, if the UK should join forces with the four other EU outsiders to shape its relations with the EU, it could be the leader of an economically successful group of countries. Read the relevant edition of The Brief here.

Investigatory Powers Act not ‘general and indiscriminate’, says Divisional Court

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The Divisional Court (Singh LJ and Holgate J) has today handed down judgment in judicial review proceedings brought by Liberty, challenging the lawfulness of the Investigatory Powers Act 2016. The case was identified by the Lawyer Magazine as one of its Top 20 Cases for 2018.

Today’s judgment concerns the compatibility with EU law of Part 4 of the 2016 Act, which contains a regime permitting the Home Secretary to require telecommunications operators to retain specified communications data (that is, data concerning matters such as the duration of telephone calls or emails, but not their content) for up to 12 months. The ability of public authorities to access such retained data can be of vital importance, for instance in criminal investigations.

Following the CJEU’s December 2016 judgment in Tele2/Watson, the Home Secretary had previously conceded that Part 4 of the 2016 Act is incompatible with EU law in two discrete respects, which are the subject of pending amendments to the legislation. The Divisional Court accepted the Home Secretary’s argument that the only appropriate relief in such circumstances was declaratory relief (including a declaration that the 2016 Act should be amended within a reasonable time), and that it was not appropriate to make an order disapplying the offending parts of the 2016 Act, as Liberty maintained.

Liberty also advanced a series of other EU law-based objections to Part 4 of the 2016 Act. These included an allegation that Part 4 is incompatible with EU law because it permits the ‘general and indiscriminate’ retention of communications data, amounting to a serious violation of privacy rights. Liberty contended that these matters should all be referred to the CJEU. However, the Divisional Court agreed with the Secretary of State that it should not make any reference to the CJEU, in some cases because it accepted the Government’s submission that the challenged aspect of the 2016 Act is compatible with EU law, and in other cases because the subject matter of Liberty’s complaint is already covered by a preliminary reference to the CJEU made by the Investigatory Powers Tribunal.

The Divisional Court rejected Liberty’s argument that Part 4 of the 2016 Act permits the ‘general and indiscriminate’ retention of communications data. The Court found that there was no basis for such a complaint, given (among other matters) the statutory requirement for the Home Secretary to be satisfied that retention notices are necessary and proportionate.

Monckton Chambers’ Gerry Facenna QC and Michael Armitage, led by First Treasury Counsel, acted for the Secretary of State for the Home Department and Secretary of State for Foreign and Commonwealth Affairs.

Tim Ward QC appointed to the Football Association (FA) Judicial Panel

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The Judicial Services Department of the Football Association (FA) has selected Tim Ward QC as a member of the FA Judicial Panel as a Specialist Panel Member, with immediate effect. As such, Tim Ward will be eligible to chair Regulatory Commissions and Appeal Boards for personal hearings. This is the FA’s senior panel which hears the full range of cases in connection with disciplinary and other regulatory matters of football played in England, including on-the-field misconduct, doping, safeguarding, agent activity, and anti-discrimination.

This is not Tim Ward’s first sports panel appointment. In 2013, Tim was appointed to the Rugby Football Union panel, on which he continues to sit as an adjudicator hearing appeals concerning competition issues.

De La Rue abandons blue passport procurement challenge

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De La Rue International Limited has today announced that it will not be pursuing its threatened challenge to the award by Her Majesty’ Passport Office of the contract for the production of blue passports to Gemalto UK Limited. Following a two-week extension for the parties to exchange pre-action correspondence and information, the standstill period in the procurement passed at midnight of the 17th/18th April and no claim under the Public Procurement Regulations having been issued, HMPO will be proceeding to enter into the contract.

Philip Moser QC, Alan Bates, Philip Woolfe and Khatija Hafesji of Monckton Chambers acted for HMPO.

Kassie Smith QC and Ligia Osepciu acted for Gemalto UK.

Former EFTA Court President Carl Baudenbacher joins Monckton Chambers

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The members of Monckton Chambers welcome Professor Carl Baudenbacher, who joins Chambers as a door tenant on 1 May 2018.

Professor Baudenbacher has enjoyed a distinguished career as a judge, university professor, arbitrator, author of legal and political publications, consultant, political advisor and speaker, in recent years with a particular emphasis on Brexit.

A Swiss national, Professor Baudenbacher was the Liechtenstein Judge of the EFTA Court from 1995 and served as the Court’s President from 15 January 2003 to 31 December 2017. He is a renowned expert in the fields of commercial and economic law, in particular competition law, as well as in the law of international courts. He is also the Director of the Competence Center for European and International Law at the University of St Gallen HSG and founder and Chairman of the renowned St Gallen International Competition Law Forum (ICF).

Between 1993 and 2005 he taught European and International Law as a Permanent Visiting Professor at the University of Texas School of Law. From 1994 to 1995 he served as a member of the Supreme Court of the Principality of Liechtenstein. In 2007 he was a member of the Independent Commission of Inquiry for the Investigation of the Events Surrounding the Hypo Group Alpe‐Adria established by the Government of the Republic of Austria (“Griss Commission”).

An experienced legal expert and arbitrator, he has advised the Swiss Parliament and the Swiss Government as well as the Governments of the Principality of Liechtenstein, the Russian Federation, Israel and the Canton of St.Gallen as well as private clients. His research activities encompass Swiss, European and International business and economic law. Special emphasis lies on the law of EU/EEA fundamental freedoms, unfair competition law, antitrust law, IP law, contract law, company law, labor law, comparative law, law of the globalization and dispute resolution.

Professor Baudenbacher resigned from the EFTA Court bench on 09 April 2018 and has selected Monckton Chambers as the ideal set from which to develop a UK practice. He will focus on both the Continent and United Kingdom across the full spectrum of EEA/EU law, Swiss economic law and certain aspects of German economic law and will involve consulting, litigation strategy, arbitration and speaking engagements.

Philip Moser QC, joint Head of Monckton Chambers, spoke for all the members in saying: “We are delighted that Professor Baudenbacher, with his considerable experience and specialist expertise, has recognised the complementary strengths of Monckton Chambers and its members and has decided to join us in the UK. With Brexit and the position of flux within Europe, this appointment could not be more important nor more timely.”

See full profile for Professor Carl Baudenbacher.