In the latest instalment of competition litigation surrounding the issue of ‘Pay for Delay’, the Competition Appeals Tribunal has referred a series of appeals against a decision of the Competition and Markets Authority to the EU Court of Justice.

The CMA had fined GlaxoSmithKline – the patent holder of antidepressant drug, Paroxetine – and a number of generics companies over a series of settlement agreements. Those agreements settled litigation in which GSK alleged that the generics companies were threatening to enter the market in breach of its patents. The CMA considered that the agreements were anticompetitive and amounted to an abuse of dominance by GSK.

GSK and the generics companies appealed the CMA’s decision on a number of grounds. Whilst dismissing the appeals in part, the CAT referred central questions to the CJEU relating to what constitutes potential competition, infringements by object and effect, abuse of dominance, and what it describes as a ‘novel’ approach to market definition.

The CAT also recognised that existing cases before the CJEU raised many of the same issues as the present appeal.

Ronit Kreisberger appeared on behalf of Merck KGaA.

Jon Turner QC, Thomas Sebastian, and Elizabeth Kelsey appeared on behalf of the CMA.

The High Court today handed down judgment in R (KS & AM) v London Borough of Haringey. The claim was brought by a mother and her youngest child who is six years old, is severely disabled and has no sense of danger. Children’s services recognized the danger that the current accommodation presents, particularly the danger of the child falling from one of the two the balconies at the front and rear of the property. A fire risk assessment found that it was not appropriate to seal the balcony doors and so the risk of serious injury from a fall remained. Children’s services therefore requested that the authority’s housing department provided the family with suitable accommodation.

The judgment was concerned with the relationship between the obligations owed to the family by the local authority’s children’s services and its housing department. It was found by the court that the housing authority was not entitled to treat the request that it provides appropriate accommodation as a request for a review of its housing allocation decision and put the family on a waiting list with little or no prospect of securing suitable accommodation. The court also found that where the housing department did not act on children’s services request for appropriate accommodation for the family, the children’s services department was required to formulate a plan setting out how the unaddressed needs of the family were to be met.

This is an important judgment which clarifies the high degree of co-operation required by law between children services and housing departments where they are dealing with vulnerable children. It will hopefully help to avoid the longstanding problem of families with such vulnerable children being passed from one public body to another without either taking responsibility for their pressing needs.

A link to the judgment of the High Court is available here.

Monckton Chambers’ Ian Wise QC acted for the claimants, instructed by Rebekah Carrier of Hopkin Murray Beskine Solicitors.

The Court of Appeal today handed down its long-awaited judgment in R (DA & Others) v Secretary of State for Work and Pensions. The claim relates to a challenge to the lawfulness of the “benefit cap” legislation on the grounds that it unlawfully discriminates against, and hence breaches the human rights of, lone parents of children under two years old, and such children in their own right. A challenge to an earlier version of the benefit cap went all the way to the Supreme Court  but a narrow majority of the Supreme Court judges held that it did not discriminate against lone parents (and hence women) even though the majority of the Supreme Court judges did find that the cap breached the United Kingdom’s international obligations in relation to the welfare of children under the UN Convention on the Rights of the Child (UNCRC). Today’s judgment of the Court of Appeal concerns the judicial review challenge to the revised, and significantly harsher, benefit cap legislation. The High Court held that the new cap did indeed discriminate unlawfully against lone parents of children under two years old (and such children), concluding that the cap had caused “real misery to no good purpose” (see here).

The Court of Appeal, by a majority of two to one, has overturned the High Court judgment based in particular on a different interpretation of the judgment in SG. The Court of Appeal did however consider that the High Court was entitled to find that the revised cap was again in breach of the UK’s obligations to children under the UNCRC. In addition, recognising the real public importance of the issues raised, the Court of Appeal has taken the unusual step of granting permission to appeal to the Supreme Court against its own judgment. This means that the lawfulness of the benefit cap is going to be considered again at the very highest level of the judicial system.

A link to the judgment of the Court of Appeal is available here.

Monckton Chambers’ Ian Wise QC and Michael Armitage acted for the claimants/respondents, instructed by Rebekah Carrier of Hopkin Murray Beskine LLP.

The General Court has annulled the Commission’s decision that it did not need to comply with a request for review made under the Aarhus Regulation insofar as the decision in question related to the safety risks, as opposed to ‘environmental risks’ posed by a genetically modified organisms (“GMO”).

Pursuant to the Aarhus Regulation, Testbiotech submitted a request for review to the Commission of the legality of a market authorisation for a genetically modified soybean. The Commission rejected the greater part of the review on the basis that it was out with the scope of the Aarhus Regulation because it examined the health threats posed by the GMO, and not the threat it posed to the environment. The General Court found that as GMOs are cultivated in the environment they are, therefore, part of the general environment (whether they are cultivated in the EU or not). The Court found, therefore, that the Aarhus Regulation applies to any provision of EU legislation concerning the regulation of GMOs that has the objective of dealing with a risk to human or animal health, that originates in those GMOs or in environmental factors that may have effects on GMOs when they are cultivated or bred in the natural environment.

This judgment has broader significance for the exercise of environmental law rights by NGOs. It demonstrates that the General Court will adopt a broad and purposive approach to the scope of the Aarhus Regulation, enabling NGOs to challenge inappropriate market authorisations or other environmental decisions.

Kassie Smith QC and Julianne Kerr Morrison, instructed by Leigh Day, acted for Testbiotech.

For further detail see the General Court’s Press Release.

The judgement may be found here.

The High Court has granted permission for a judicial review of Walsall Council’s cemeteries policy, deeming it a matter of public interest.

The Claimant’s late father is buried in the lawn area of Streetly Cemetery, which is reserved for Muslim burials. The Council’s policy prohibits edging around graves in that area. The Claimant argues that appropriate edging is a religious requirement (to prevent people from stepping on graves) and that the ban is in breach of the right to freedom of religion under Article 9 ECHR and contrary to the Equality Act 2010.

Nikolaus Grubeck is acting for the Claimant.

For the media coverage see BBC and the Guardian.