‘Hot-tubbing’ directed in CAT’s first fast-track case

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Last Friday saw the pre-trial review in Socrates Training Limited v The Law Society – the first fast-track case in the Competition Appeal Tribunal. The fast track procedure was introduced in 2015 and is designed to bring smaller competition cases to trial more swiftly and cost-efficiently.

Socrates, a company providing professional training to law firms, brings the claim under Chapter I and Chapter II of the Competition Act 1998 in relation to the training element of The Law Society’s Conveyancing Quality Scheme, an accreditation scheme for conveyancing solicitors.

The President of the Tribunal, Mr Justice Roth directed that the expert economic evidence in the case will be given via ‘hot-tubbing’, where the parties’ expert economists take to the witness box together. They will be questioned first by the Tribunal itself and subsequently by counsel for each party in turn. Mr Justice Roth has used ‘hot-tubbing’ previously, in last year’s Streetmap v Google case (further information here). At paragraph 47 of that judgment (available here), Roth J said of the ‘hot-tub’, “I believe that is the first time this has been done in a competition case in the UK, and it led to a constructive exchange which considerably shortened the time taken by the economic evidence at trial”.

This ‘hot-tub’ direction follows a previous direction that, given that this case is being fast-tracked, expert economic evidence is limited to the issues of market definition and dominance. Consistently with the CAT’s intention that fast-track cases be closely case managed, at earlier Case Management Hearings the Tribunal also directed specific disclosure in place of standard disclosure and gave early directions as to which witnesses the parties could call.

The trial will begin on Tuesday 8 November and is listed for 4 days.

Philip Woolfe is acting for Socrates.

Kassie Smith QC and Imogen Proud are acting for The Law Society.

Article 50 Challenge: Update from Day One

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As we wrote yesterday (see here) the hearing has now started of the High Court challenges to the Government’s position that it can trigger Article 50 by use of the royal prerogative and without the need for an Act of Parliament. Those challenges are based on domestic principles of constitutional law.

If you’re interested in seeing the detail of what happened on Day One of the hearing, the full transcript is now available here.

One point which seemed to exercise the Court in particular is whether it would be open to the UK, once an Article 50 notification has been given, to withdraw that notification. That is a question of EU, rather than domestic, law but has implications in the case in terms of the timing of any Parliamentary approval – would approval have to be in place before the Article 50 notification was given or could it come later? However, the answer to that legal question would undoubtedly also have implications in terms of the dynamics of the UK’s withdrawal negotiations with the EU 27 and in terms of the debate here in the UK as to the terms of withdrawal.

Article 50 challenges in Court today

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Today sees the start of the hearing in the High Court of the so-called “Article 50 challenges” – the judicial review proceedings brought by two claimants (and supported by several groups of interveners) which argue that a Parliamentary vote is needed before the Article 50 process for Britain leaving the EU can be triggered. The hearing will not finish today but will continue on 17th and 18th October.

The Court

The challenges are being heard not by a single High Court Judge, as most judicial reviews are, but by a very high-powered Divisional Court, consisting of the Lord Chief Justice (Lord Thomas), the Master of the Rolls (Sir Terence Etherton) and Lord Justice Sales. A “leapfrog” appeal to the Supreme Court (i.e. direct to the Supreme Court and bypassing the Court of Appeal) has already been arranged for December 2016.

The arguments

The Government’s position is that Article 50 can be triggered using prerogative powers – meaning essentially that this is a matter for the executive alone.

The Claimants dispute this, and raise a number of issues, including:

  • Can the Government notify the decision to withdraw pursuant to royal prerogative powers without Parliamentary approval or are those historic powers limited? In particular:
    • Has any executive royal prerogative power to do so been removed by legislation, in particular constitutional statutes such as the European Communities Act 1972, the Bill of Rights 1689, the Acts of Union and the statutes creating the devolution settlements for Northern Ireland, Scotland and Wales?
    • Does the royal prerogative extend to allowing the Government to remove fundamental citizenship rights derived from EU law without Parliamentary authority?
  • Would any exercise of the prerogative be abusive by undermining Parliamentary Sovereignty, the proper role of the Executive in the constitution, and/or the rule of law?

There is also a dispute about whether constitutionally-valid decision has already been made for the UK to withdraw from the EU.

If you are interested in the detail of the arguments, the principal parties’ skeleton arguments can be found here:

The Government’s skeleton argument

The People’s Challenge clarification note

The People’s Challenge skeleton argument

Lead claimant skeleton argument

Three of our colleagues are involved: Anneli Howard (together with Lord Pannick QC, Rhodri Thompson QC and Tom Hickman) for the lead Claimant, and Gerry Facenna QC and Jack Williams (together with Helen Mountfield QC and Tim Johnston) for the Peoples Challenge interested party.

 

Article 50 litigation: Government’s skeleton argument published

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Today the Government has published its full skeleton argument in the Article 50 litigation to be heard in the High Court on 13, 17 and (now also) 18 October 2016. The Government’s full skeleton argument can be found here.

The People’s Challenge Interested Parties have also filed in response a note clarifying a mistaken assertion in the Government’s skeleton. This clarification note can be found here.

Further documents in relation to the litigation (including the skeleton argument on behalf of the People’s Challenge Interested Parties) can be found here.

The People’s Challenge Interested Parties are a number of ordinary UK and EU citizens living in England, Gibraltar, Northern Ireland, Scotland and Wales, as well as British citizens resident in France. They are supported by funding raised through the crowdfunding platform, Crowdjustice.

Gerry Facenna QC and Jack Williams are instructed by Bindmans LLP on behalf of the People’s Challenge Interested Parties. Anneli Howard is also acting in the litigation on behalf of the claimant Gina Miller.

Article 50 litigation: Court orders that Government’s arguments can be published

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On Friday 23 September 2016 the “People’s Challenge Interested Parties” published a redacted version of their skeleton argument because the Government had not agreed to publication of any of the content of the Secretary of State’s detailed grounds of resistance.

The People’s Challenge Interested Parties therefore also applied to the Court for clarification, because they considered that the Court’s July 2016 Order was not intended to preclude publication of the pleadings and that the Government’s case should be made available so that the public can understand its position. The details of that application can be read here.

The application was successful. Late yesterday Mr Justice Cranston amended the Court’s Order to provide that: “… the parties are not prohibited from publishing (1) the Defendant’s or their own Detailed Grounds; (2) their own skeleton arguments…”. The Judge observed that “Against the background of the principle of open justice, it is difficult to see a justification for restricting publication of documents which are generally available under the Rules.” The Order can be read here.

The Government’s detailed grounds of resistance in this important case can therefore now be read here.

The People’s Challenge Interested Parties’ un-redacted skeleton argument can be read here.

The People’s Challenge Interested Parties are a number of ordinary UK and EU citizens living in England, Gibraltar, Northern Ireland, Scotland and Wales, as well as British citizens resident in France. They are supported by funding raised through the crowdfunding platform, Crowdjustice.

Gerry Facenna QC and Jack Williams are instructed by Bindmans LLP on behalf of the People’s Challenge Interested Parties.

Chambers Bar Awards 2016 – Monckton shortlisted for Competition and Human Rights & Public Law

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The 2016 Chambers Bar Awards shortlist has been announced and Monckton Chambers has been nominated for ‘Set of the Year’ in both the Competition and Human Rights & Public Law categories. In addition, Daniel Beard QC is in the running for Competition Silk of the Year. The results will be announced at the ceremony on Thursday, 27th October at The London Hilton on Park Lane.

Article 50 litigation: Interested Parties’ skeleton argument published

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Today, the People’s Challenge Interested Parties have publicly released their skeleton argument for the Article 50 TEU litigation to be heard in the Divisional Court on 13 and 17 October 2016. The People’s Challenge Interested Parties are the first to publish their arguments so that the general public can see the arguments in this historic and important piece of litigation.

The skeleton argument for the substantive hearing can be read here.

In summary, the People’s Challenge Interested Parties argue that an Act of Parliament is necessary before Article 50 TEU can be triggered because any use of executive prerogative power to trigger Article 50: (1) has been removed by constitutional statutes; (2) does not extend to removing fundamental citizenship rights; or (3) would, in any event, be abusive if it were exercised to trigger the UK’s withdrawal from the EU (assuming it subsists and extends to removing fundamental rights).

The skeleton argument has had to be redacted as the Government has not agreed to publication of the content of the Secretary of State’s detailed grounds.

The People’s Challenge Interested Parties have additionally applied to the Divisional Court for clarification of its Order made in July as they believe that the Government could (and should) make its case available so that the general public can understand its position. The details of that application can be read here.

The People’s Challenge Interested Parties are a number of ordinary UK and EU citizens living in England, Gibraltar, Northern Ireland, Scotland and Wales, as well as British expats located in France. They are supported by funding raised through the crowdfunding platform, Crowdjustice.

Gerry Facenna QC and Jack Williams are instructed by Bindmans LLP on behalf of the People’s Challenge Interested Parties.

 

Chambers Bar Awards 2016 – Monckton shortlisted for Competition and Human Rights & Public Law

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The 2016 Chambers Bar Awards shortlist has been announced and Monckton Chambers has been nominated for ‘Set of the Year’ in both the Competition and Human Rights & Public Law categories. In addition, Daniel Beard QC is in the running for Competition Silk of the Year. The results will be announced at the ceremony on Thursday, 27th October at The London Hilton on Park Lane.

Gerry Facenna QC, Daisy Mackersie and David Gregory successfully defend Environment Agency’s decision on water abstraction at Catfield Fen under the Habitats Directive

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Monckton counsel have successfully defended the Environment Agency’s decision not to renew water abstraction licences near to Catfield Fen in Norfolk.  The applications were to allow the continued use of groundwater for agricultural purposes from existing abstraction sites near to a Special Area of Conservation protected by the EU Habitats Directive.  Catfield Fen contains calcareous fen (a priority habitat under the Habitats Directive) as well as a large population of the rare fen orchid and protected water beetles.

The decision of the Environment Agency to refuse the licences was considered at a three week planning inquiry held in Norwich in Spring 2016.  At the inquiry the Environment Agency, supported by Natural England and the RSPB, presented evidence of rapid ecological change on site suggestive of deteriorating water chemistry which was potentially a result of the water abstractions. By contrast the appellant contended that, applying the test under the Habitats Directive, it was beyond reasonable scientific doubt that the water abstractions were not responsible for any ecological change.

Having considered detailed expert evidence on fen ecology, hydrogeology and water chemistry, Elizabeth Hill BSc(Hons), BPhil, MRTPI, the Inspector appointed by the Secretary of State for Environment, Food and Rural Affairs, dismissed the appeals, finding: ‘it cannot be concluded beyond reasonable scientific doubt that abstraction under the licences would not have an adverse effect on the integrity of sites protected by European law, namely, the Broads SAC.’ She also rejected arguments that the licences should be granted in any event due to “imperative reasons of overriding public interest”, namely the impact of refusing the licences on the economy.

The Planning Inspector’s decision can be read here.

The Environment Agency was represented by Gerry Facenna QC, Daisy Mackersie and David Gregory.

The Legal 500 UK Bar 2016: Monckton is Top Tier Set for EU, Competition, Telecoms, Procurement and VAT with 40 members ranked as “leading” individuals

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The recently launched  The Legal 500 UK Bar 2016 noted  Monckton Chambers for its ‘tremendous strength in depth’, and being ‘the premier set for EU and competition disputes’ as well as a strong choice for telecoms regulatory, indirect tax and public law. 40 individual barristers are listed across18 practice areas with many recommended in multiple categories.

Monckton Chambers has been recommended as a TOP-TIER set in the following practice areas:

  • EU and competition
  • Telecoms (regulatory)
  • Public procurement
  • Tax – VAT

The Set has also been ranked in a further 5 areas:

  • Administrative and public law (including local government)
  • Civil liberties and human rights (including actions against the police)
  • Environment
  • IT and telecoms – data protection
  • Sport

Individual members were also recognised as “Leading Individuals” in:

  • Aviation
  • Commercial litigation
  • Construction- Education
  • Immigration (including business immigration)
  • International arbitration: counsel
  • Professional negligence
  • Public international law
  • Social housing

The annual legal directory further described the Set as follows: ‘The barristers are all user-friendly, unstuffy, very good at rolling up their sleeves and fun to work with’, and are complemented by the ‘21st century and entrepreneurial-style clerking’, which is ‘highly professional and client-focused’; ‘they know how to match the right barrister to the right case and appear to take care to do so, rather than just looking at who has capacity at any given time.’

For further details visit the Legal 500 website.