Jack Williams gives keynote address at Young Bar of Northern Ireland’s annual conference

On Friday 19 May 2017, Jack Williams  gave the keynote address at the Young Bar of Northern Ireland’s annual conference which was themed “The Legal Impact and Opportunities of Brexit”.

Jack was asked to address “The Constitutional Impact of Brexit”. He started by assessing the impact of R (Miller and Dos Santos) v Secretary of State for Exiting the European Union [2017] UKSC 5 which was a key milestone in beginning the process of the UK’s withdrawal from the EU. The case afforded the courts (and Jack in his lecture) an opportunity to address a range of matters relating to the operation of the UK’s uncodified constitution. Jack then looked ahead to assess the next key events along the path to Brexit, and in what ways the journey will test the UK’s constitution (and provide “opportunities” for legal practitioners). In this regard, Jack analysed future litigation possibilities in relation to each stage of the journey ahead, including: the Great Repeal Bill, the EU law obligations during the negotiation phase, the final deal (regarding both citizens’ acquired rights from an EU law perspective, and UK constitutional law questions concerning any final deal), and longer term issues post 29 June 2019.

Jack was junior counsel for one of the interested parties in R (Miller and Dos Santos) v Secretary of State for Exiting the European Union [2017] UKSC 5 at both Divisional and Supreme court levels. He has recently been commissioned by Hart Publishing to co-edit a book (with Professor Mark Elliott and Professor Alison Young) on the constitutional impact of the case. Having also undertaken a traineeship at the CJEU with Judge Vajda and a secondment in the Bank of England’s EU Withdrawal Unit, Jack is well-placed to assist both private and public clients with a range of Brexit-related matters.

Court of Justice decides that EU-Singapore trade agreement cannot be concluded without the Member States

Opinion 2/15 (EU:C:2017:376)

The EU Court of Justice has delivered a lengthy Opinion on the power of the EU to sign and conclude a free trade agreement with Singapore without the involvement of the Member States.

While the Commission and European Parliament contended that the EU has exclusive competence to sign and conclude the proposed agreement with Singapore, the Council and Member States who intervened argued that the EU could not do so because parts of the agreement fall within areas of competence shared between the EU and Member States, or within the exclusive competence of the Member States.

In its Opinion, delivered by the Full Court and available here, the CJEU has found that most of the matters covered by the agreement fall within the exclusive competence of the EU, including:

  •  access to the EU market and Singapore market for goods and services (including all maritime, rail and road transport services), public procurement and energy generation from sustainable non-fossil sources;
  •  protection of direct foreign investments of Singapore nationals in the EU (and vice versa);
  •  intellectual property;- competition and subsidies;
  •  sustainable development; and
  •  rules relating to exchange of information, notification, verification, cooperation, mediation, transparency and dispute settlement (except in connection with non-direct foreign investment).

However, the Court found there to be two areas covered by the agreement where the EU has shared competence with the Member States, meaning that the agreement in its current form cannot be concluded without the Member States’ involvement:

  • non-direct foreign investment (portfolio investments made without any intention to influence the management and control of an undertaking); and
  • investor-state dispute settlement.

The EU-Singapore agreement is representative of a number of bilateral trade and investment treaties that the EU is seeking to enter into. The Court’s Opinion confirms the broad scope of the EU’s exclusive competence to conclude such agreements, other than in a few areas where Member State involvement will continue to be necessary (including controversial investor-state dispute settlement arrangements). This may make it easier for the EU to negotiate and conclude trade deals in the future, including a potential post-Brexit deal with the UK, provided they do not cover investment matters.

The United Kingdom was represented by Daniel Beard QC and Gerry Facenna QC.

To read the Brexit blog post by Panos Koutrakos “Concluding Free Trade Agreements: the EU-Singapore Opinion and Brexit” please click here.

Conditions of detention and strict prison regime amounted to inhuman and degrading treatment

The Grand Chamber of the European Court of Human Rights has unanimously found in Simeonovi v. Bulgaria that Mr Simeonov’s conditions of detention, in combination with the strict regime under which he was serving his sentence and the length of his period of imprisonment since 1999, had subjected him to an ordeal exceeding the suffering inherent in serving a prison sentence which amounted to inhuman and degrading treatment contrary to Article 3 of the European Convention on Human Rights.

However, the Court – by 12 votes to 5 – did not consider that the proceedings against had been irremediably prejudiced by the fact that he had been denied access to legal assistance for the first three days following his arrest. In reaching this conclusion, the Grand Chamber emphasised that no evidence capable of being used against Mr Simeonov had been obtained and included in the criminal file during that period; that, assisted by a lawyer of his own choosing, he had voluntarily confessed two weeks after being charged, when he had been informed of his procedural rights, including the privilege against self-incrimination; that he had actively participated in all stages of the criminal proceedings; that his conviction had not been based solely on his confession but also on a whole body of consistent evidence; that the case had been assessed at three judicial levels and that the domestic courts had provided adequate reasons for their decisions in both factual and legal terms and had properly examined the issue of respect for procedural rights.

The Grand Chamber also declined to depart from its approach of only considering those issues found admissible by the Chamber following the latter’s referral to it of a case. It did so notwithstanding that the inadmissibility ruling in this case – which concerned a complaint that a sentence of life imprisonment was irreducible and thus in violation of Article 3 – had been based on the approach to this issue in a judgment of the Grand Chamber, which the latter had subsequently reversed in a manner that would probably have resulted in Mr Simeonov’s complaint being found admissible if it had been determined later.

However, in application of Article 46 of the European Convention, the Grand Chamber did recommend that Bulgaria: (a) remove the automatic application of the special prison regime to life prisoners to which Mr Simeonov had been subjected and (b) put in place provisions permitting the imposition of that regime on the basis of an individual risk assessment.

Mr Simeonov was represented before the Grand Chamber by Jeremy McBride.

To view the Grand Chamber judgment, please click here.

 

Mobility scooters ‘opt out’ class action abandoned

The first ever application for a Collective Proceedings Order (CPO) for an ‘opt out’ competition law class action is to be withdrawn. An order published on the Competition Appeal Tribunal’s website today confirms that the applicant for the CPO “has decided not to pursue her application“.

By the CPO application (which was the first to be made under the new class actions regime introduced by the Consumer Rights Act 2015), the applicant, Dorothy Gibson, had sought an order allowing her to pursue claims for damages on behalf of consumers who had purchased mobility scooters. In May 2014 the Office of Fair Trading (OFT) had issued a decision finding that a wholesaler distributor of mobility scooters called Pride Mobility Products Limited and eight of its retailer customers had infringed the Competition Act’s ‘Chapter I prohibition’. Each of those eight retailers had agreed to a request from Pride that the retailer refrain from advertising on the internet below-RRP prices for certain models of scooter. Ms Gibson sought damages for losses alleged to have been suffered not only by consumers who bought a scooter from one of those eight retailers, but also by other consumers (i.e. consumers who bought from other retailers) whom Ms Gibson claimed had paid higher prices as a result of ‘umbrella effects’.

Ms Gibson’s decision not to further pursue her application for a CPO follows a judgment of the Tribunal on 31 March 2017 in which the Tribunal concluded that the expert economic evidence relied on by Ms Gibson had been prepared on an erroneous basis. That was because the expert had been instructed to analyse the possible effects on prices of Pride’s “policy” of discouraging its retailer customers from advertising on the internet below-RRP prices for the relevant scooter models. Since the CPO application had been brought in respect of what were said to be “follow-on” claims (i.e. claims brought in relation to the infringements already found by the OFT), the economist should have been instructed to estimate only such alleged consumer losses as may have been caused by Pride’s agreements with the eight retailers (i.e. the retailers who were, together with Pride, the addressees of the OFT’s infringement decision).

By its 31 March judgment the Tribunal did not, however, completely close the door on Ms Gibson’s CPO application. Although it was not prepared to grant a CPO on the basis of the material that had been presented by Ms Gibson at the CPO application hearing, the Tribunal decided to adjourn (rather than dismiss) the application, thus leaving open the possibility for her to return to the Tribunal to seek a CPO on the basis of a fresh expert report prepared on the correct basis.

A news item on the 31 March judgment, and a copy of that judgment, is available here.

As Ms Gibson has now decided not to further pursue her application, the Tribunal has directed that the parties seek to reach agreement on costs.

Monckton barristers Alan Bates, Michael Armitage and Jack Williams are instructed on behalf of Pride.

The Lawyer Awards 2017 – Daniel Beard QC in shortlist for Barrister of the Year and Monckton for Chambers of the Year

We are in the shortlist for two categories in this year’s The Lawyer Awards. Daniel Beard QC is one of eight being considered for Barrister of the Year and the set is nominated for “Chambers of the Year”. Now in its 23rd year, The Lawyer Awards commend excellence in the profession across private practice, the public sector, commerce and industry, and the Bar. The winners will be announced at a ceremony at the Grosvenor House Hotel on Tuesday 27 June.

Supreme Court rules no requirement to issue claim within standstill period, but damages only available for “sufficiently serious” breach

On 11 April 2017 the Supreme Court handed down its judgment in Energysolutions EU Limited (now ATK Energy EU Ltd) v Nuclear Decommissioning Authority [2017] UKSC 34.

A link to the Monckton Chambers case note is here.

Ewan West acted for ATK Energy EU Ltd throughout the Magnox Contract litigation and appeared for ATK before the Supreme Court on the preliminary issues appeal.

Philip Moser QC acted for the NDA in the Court of Appeal in the concurrent substantive appeals in Energysolutions (ATK) v NDA (settled).

Michael Bowsher QC and Ligia Osepciu acted for Bechtel Management Company Limited and Philip Moser QC acted for the NDA in the Bechtel v NDA claim (settled).

Peter Oliver in The Brief – Comment on which dispute settlement mechanisms would save the negotiations between the UK and the EU

Monckton Chambers’ Peter Oliver 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. Peter’s “Comment” explains why an effective dispute settlement mechanism involving courts or at least arbitration will be a key EU requirement in its negotiations with the UK for a post-Brexit agreement, and briefly considers some of the complexities. Read the relevant edition of The Brief here.

Philip Moser gives keynote address at this year’s Chambers Europe Awards

Philip Moser QC was pleased to give the keynote speech, on the UK application of EU-derived law after Brexit, at the Chambers Europe Awards 2017 ceremony and dinner, held on Friday 7th April at the Grosvenor House Hotel, London. The awards honour the work of national and international law firms across Europe and recognise a law firm’s pre-eminence in key countries in the region. They also reflect notable achievements over the past 12 months including outstanding work, impressive strategic growth and excellence in client service.

Supreme Court stubs out Big Tobacco’s judicial review of UK plain packaging laws

The Supreme Court (Lord Mance, Lord Sumption and Lord Carnwath), on 11 April 2017, refused applications by British American Tobacco and Japan Tobacco International for permission to appeal against the Court of Appeal judgment in in R (British American Tobacco and others) v Secretary of State for Health [2016] EWCA Civ 1182.

This brings to an end long running litigation in which the tobacco industry sought to challenge the Standardised Packaging of Tobacco Products Regulations 2015, which make provision for the retail packaging of cigarettes and hand rolling tobacco to be standardised, substantially limiting the ability of tobacco companies to place branding on their products.

The request for a reference to the European Court of Justice was rejected. All EU law issues had been considered thoroughly by the courts below. The judgments of Mr Justice Green in the Administrative Court and the Court of Appeal, dealing with a multitude of grounds, 27 witness statements and 30 expert reports, run to nearly 500 pages. The volume of expert economic and econometric evidence presented a significant challenge to the courts given the limitations of the judicial review procedure, which is discussed in the High Court and Court of Appeal judgments: see news items here and here for links to the relevant judgments.

The stakes in this litigation were high. A report produced by Sir Cyril Chantler for the Government in 2014 concluded that “standardised packaging, in conjunction with the current tobacco control regime, is very likely to lead to a modest but important reduction over time on the uptake and prevalence of smoking and thus have a positive impact on public health”. The Government’s Impact Assessment considered that the expected societal benefits from reduced smoking prevalence and the resultant lives saved would be materially larger than the expected costs to society from reduced taxation revenue and costs to businesses, producing a net benefit to the public of approximately £25 billion. The tobacco industry’s claim for compensation against the Secretary of State for Health had been estimated by industry analysts to be up to £11 billion.

Ian Rogers QC, Julianne Kerr Morrison and Nikolaus Grubeck acted for the Secretary of State for Health.

The UK standardisation provisions went further than the EU-wide legislation introduced by the Tobacco Products Directive, particularly in relation to tobacco branding. One of the many issues in the domestic judicial review proceedings concerned the scope of the power to introduce further standardisation requirements, and the competence of the UK to do so. The tobacco industry also challenged the UK’s implementation of the Directive, on grounds including the invalidity of the Directive itself, in related proceedings: Case C-547/14 R (Philip Morris Ltd and others) v Secretary of State for Health. The challenge to the Directive was rejected by the European Court of Justice in May 2016 (see news item here).

Ian Rogers QC and Eric Metcalfe appeared for the United Kingdom in the Luxembourg proceedings.

The Supreme Court decision is reported in The Guardian here.

Supreme Court rejects end consumers’ unjust enrichment and EU law claims to recover mistakenly-paid VAT direct from HM Revenue & Customs

The Supreme Court has unanimously allowed HM Revenue & Customs’ appeal and dismissed the ITCs’ cross-appeal in both parties’ appeals from the Court of Appeal’s decision, [2015] EWCA Civ 82.

In HMRC’s appeal, the Supreme Court held that (1) the ITCs, as end customers, had no direct claim against HMRC in the English law of unjust enrichment in circumstances where the customers had paid their suppliers (and the suppliers had accounted to HMRC for) “VAT” that was not due, because the supplies should have been exempt (2) that any such claim was in any event excluded by statute (s.80(7) of the Value Added Tax Act 1994) and (3) EU law required no different result (in particular, in respect of tax periods when the taxpayer’s own claim for repayment against HMRC was statute-barred under the VAT Act).  In the ITCs’ appeal, the Supreme Court upheld the Court of Appeal’s decision that HMRC were only enriched by the net amount of over-declared output tax less over-claimed input tax, not by the gross amount of the over-declared output tax.

The judgment is available at: The Supreme Court and here.

Andrew Macnab (led by Stephen Moriarty QC, Fountain Court Chambers) represented HM Revenue & Customs.