CAT allows BT’s appeal against Ofcom’s BCMR

 

The Competition Appeal Tribunal has issued a ruling declaring that Ofcom erred in its Business Connectivity Market Review (BCMR), and quashing the market definition decisions upon which Ofcom’s “dark fibre” remedy was based.

In its BCMR Statement, which was published in April 2016, Ofcom defined various markets for the provision of “business connectivity” services, used by companies to carry data between locations. Ofcom defined a single product market for contemporary interface symmetric broadband origination (“CISBO”) services of all bandwidths; and four separate relevant geographic markets: the Central London Area; the London Periphery; Hull; and the Rest of the UK. Ofcom also made determinations concerning the extent of BT’s core network. Ofcom found that BT had significant market power (“SMP”) for CISBO services outside Central London and Hull, and proposed a package of remedies including a so-called passive remedy allowing Communications Providers to lease only the fibre element of the leased lines from BT, allowing them to attach equipment of their own choosing at either end to “light” the fibre. This remedy was referred to as Dark Fibre Access (“DFA”) and was to be implemented in October 2017.

BT appealed on the grounds that Ofcom had erred in its Product Market Definition, in that Ofcom had failed to identify a separate product market for Very High Bandwidth (“VHB”) services of 1 Gbit/s and above, in which BT does not have SMP. BT also argued that Ofcom had erred in its approach to the Geographic Market Definition, and in its determination of the boundary between the (competitive) core segments of BT’s network and other terminating segments. BT further argued that the dark fibre remedy was disproportionate, including because it would undermine infrastructure based competition for VHB services from providers such as Virgin Media and CityFibre.

A hearing took place in April-May 2017 over sixteen hearing days, in which the Tribunal heard BT’s arguments in relation to market definition and the competitive core. Yesterday, the CAT issued a ruling on those issues. The CAT has unanimously decided that Ofcom erred in defining a single product market, in concluding that the UK outside London (and Hull) comprises a single geographical market, and in its determination of the boundary between core and terminating parts of BT’s network. Those decisions will be quashed and remitted to Ofcom for reconsideration. The CAT is still preparing its reasoned judgment for its conclusions, which will be handed down in due course.

The imposition of the DFA remedy was contingent on the correctness of Ofcom’s market definition analysis. A further hearing of the remedies issues raised by BT had been scheduled for September 2017, to allow those issues to be considered, if appropriate, before the implementation date of the DFA remedy. Given that Ofcom’s market definition will now need to be reconsidered, the hearing has been vacated.

Daniel Beard QC, Robert Palmer, Ligia Osepciu and David Gregory represented BT.

Josh Holmes QC represented Ofcom.

Philip Woolfe represented a group of communications providers including TalkTalk, Vodafone, Colt and Hutchison 3G.

The ruling has already been reported by the Financial Times and the Daily Telegraph.

FTT rejects challenge to restitution interest provisions of the Corporation Tax Act 2010

In a decision released on 12 July 2017, the First-tier Tribunal (Tax Chamber) has dismissed the BAT group’s EU law, ECHR and common law challenges to the restitution interest tax provisions of Part 8C of the Corporation Tax Act 2010.  Part 8C, introduced in October 2015, imposes a charge to corporation tax at the rate of 45% on restitution interest (essentially, compound and other interest awarded against the Crown in claims for restitution of unlawfully levied tax or tax paid under a mistake of law) arising to a company.  The Part 8C charge is ring-fenced and not capable of being offset by reliefs, etc.

The FTT (Judge Berner) held that the provisions were compatible with (a) BAT’s directly effective EU law rights (including the principles of effectiveness, protection of legitimate expectations and proportionality, and rights derived from the EU Charter of Fundamental Rights); (b) BAT’s Convention rights under the ECHR (including under A1P1 and Article 6); and (c) BAT’s common law rights.

The decision is available here.

Andrew Macnab and Jack Williams represented HM Revenue & Customs (led by Alison Foster QC (39 Essex Chambers) and Philip Baker QC (Field Court Tax Chambers); alongside Aparna Nathan (Devereux Chambers) and Elizabeth Wilson (Pump Court Tax Chambers)).

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.