The Court of Appeal has dismissed Delta’s appeal against the ruling of Mrs Justice Rose last June, so that Delta is precluded from resisting IMI’s contribution claim on the basis of a limitation defence. The judgment is the latest in a series of ground breaking rulings arising from the Copper Tubes and Copper Fittings claims, in which IMI has now twice been successful in the Court of Appeal.

The judgment concerns section 1(4) of the Civil Liability (Contribution) Act 1978, which applies where the main claim against the contribution claimant (in this case, Travis Perkins’s claim against IMI) has been the subject of a bona fide settlement. Under section 1(4), the liability of the contribution claimant (IMI) to the main claimant (Travis Perkins) cannot be re-opened by the contribution defendant (Delta) if the conditions of a proviso are satisfied – that is, if IMI would have been liable “assuming that the factual basis of the claim against him could be established”. Where section 1(4) applies, the contribution defendant cannot resist the contribution claim on the basis that the contribution claimant was never liable in the first place.

In the present case, Delta sought to resist IMI’s claim for contribution on the basis that the main claim against IMI by Travis Perkins was time barred.　 　Rose J rejected that argument, holding that, under section 1(4), Travis Perkins’ plea in Reply that the cartel was deliberately concealed is assumed to be true; as a result the limitation argument failed.

The Court of Appeal upheld a different interpretation of section 1(4), advanced by IMI, that the proviso only involves an inquiry into whether the Particulars of Claim disclose a cause of action. This new interpretation offers settling parties greater protection from attempts by the contribution defendant to re-open the claim which has been settled. However, the Court also upheld Rose J’s application of the section as a secondary and alternative view.

Please click to view a copy of the IMI PLC & anr -v- Delta LTD & ors judgment.

Paul Harris QC and Rob Williams acted for the successful party IMI.

In a judgment handed down today, 28 July 2016, the Court of Appeal has decided to refer questions to the EU Court of Justice on whether limitations on the compensation paid by the Pension Protection Fund (PPF) to former employees of insolvent employers are consistent with Directive 2008/94/EC (the Insolvency Directive).

The PPF is the industry-funded statutory “lifeboat” fund responsible for insolvent pension schemes. While most pensioners whose schemes fall within the PPF initially receive compensation of 90% or 100% of their original pension, a small percentage (around 0.2%) of PPF members have their compensation capped, which results in some cases in a loss of more than half of their pension. The cap is imposed on those who are below their scheme’s normal pension age at the time of the employer’s insolvency. The impact of the cap is exacerbated by restrictive provisions in the Pensions Act 2004 on annual increases, which further reduce the value of PPF compensation over time.

In today’s judgment a majority of the Court of Appeal have accepted the argument of the Appellant, Mr Hampshire, that (except in cases of abuse) EU member states must ensure that every employee of an insolvent employer receives at least half of their accrued pension benefits, and that the provisions of the 2004 Act imposing a cap on compensation and limiting annual increases at a level below that minimum 50% guarantee therefore do not comply with EU law. The majority of the Court has rejected the argument of the PPF and the Secretary of State that EU law only requires member states to put in place a suitable ‘system of protection’ but does not provide an individual right to a minimum level of compensation in every case.

The case arises out of a challenge by Mr Hampshire and 15 other former employees of Turner & Newall (“T&N”) to the PPF’s valuation of the T&N pension scheme. The scheme entered PPF assessment in 2006 and although the scheme has been valued as having a surplus of around £50m, under the 2004 Act Mr Hampshire and around 40 other members of the scheme are subject to the compensation cap, which in some cases has resulted in a loss of over 75% of the pension those employees were entitled to receive, and were receiving prior to 2006, under the scheme rules. Mr Hampshire and his former colleagues appealed to the High Court from the PPF Ombudsman on the basis that compensation amounting to less than 50% of accrued pension benefits is inconsistent with Article 8 of the Insolvency Directive as interpreted by the Court of Justice in cases C-278/05 Robins and C-398/11 Hogan. In December 2014 the High Court rejected Mr Hampshire’s appeal.

Today’s provisional finding by the Court of Appeal in Mr Hampshire’s favour, and the reference to the EU Court, represents a significant victory for him and the hundreds of pensioners who have campaigned against the compensation cap and its unfair impact on employees with a significant pension pot who happen to be below normal pension age when their employer goes insolvent.

Of potentially even greater significance than the impact of the ruling on the cap is the potential impact of any ruling that pensioners in receipt of PPF compensation must receive at least half of any entitlements to annual increases in their pension. Such a ruling will potentially benefit thousands of PPF members, including those who were initially in receipt of 90% or 100% of their original pension but who have lost any rights they had to index-linked or guaranteed annual increases.

While the majority of the Court of Appeal agreed with Mr Hampshire, the Court considered that the point was not free from doubt and decided to ask the EU Court of Justice for a ruling. The Court also decided to ask the EU Court whether Article 8 of the Insolvency Directive is directly effective, meaning that it can be invoked directly against the PPF to override the terms of the 2004 Act.

Gerry Facenna QC and James Bourke, instructed by Ivan Walker of Walkers Solicitors, are acting for Mr Hampshire.

A copy of the Court of Appeal’s judgment is available here.

 

The High Court of the British Virgin Islands (“BVI”) has just handed down judgment in a claim brought by Cable & Wireless (BVI) Ltd (“LIME BVI”) for judicial review of the decision of the BVI Telecommunications Regulatory Commission (“TRC”) finding that LIME BVI had engaged in an anti-competitive margin squeeze in breach of the requirements of the BVI Telecommunications Act 2006. The TRC had received a complaint from CCT, a competitor of LIME BVI, to the effect that LIME BVI (by certain “All Talk Calling Plans”) was charging average retail prices to its mobile customers for calls to LIME affiliates in other Caribbean jurisdictions which were below the wholesale charges available to CCT from those LIME mobile network operators. The TRC investigated the complaint and issued a decision on 1 June 2012 to the effect that LIME BVI had engaged in an anti-competitive margin squeeze during the period January 2009 to August 2010 which, had it continued, would likely have had anti-competitive effects contrary to the public interest and would have been detrimental to consumers in the BVI in the long term. The TRC ordered LIME BVI not to engage in such conduct and fined it USD$493,665.

The Court held that the TRC’s decision was ultra vires the 2006 Act and that it should be set aside. The Court held that the relevant section of the Act under which the TRC proceeded against LIME BVI applied only to present and future conduct, and not to past conduct. The Court agreed with the submission of LIME BVI that the TRC’s decision could only have been limited to offending conduct which ceased before the decision was issued. It agreed with LIME BVI’s argument that “the tenor of the Act lends itself to ex ante regulation of operators” only. The Court therefore found that the TRC had acted ultra vires the Act and that this warranted the decision being set aside. The Court also agreed with LIME BVI’s argument that the TRC acted ultra vires the 2006 Act by applying it to LIME affiliates outside the jurisdiction of BVI law (i.e. those LIME affiliates responsible for the setting of prices in the wholesale or upstream markets). However, the court held that this illegality alone would not have been sufficient to set aside the TRC’s decision.

Kassie Smith QC acted for LIME BVI in the proceedings before the High Court of the BVI.

To read the judgment, please click here.

 

Stephen Cragg QC and Nikolaus Grubeck, instructed by Kate Harrison at Harrison Grant, are acting for Labour Party members excluded from an automatic right to vote in the forthcoming leadership election, on the basis that they have not been members of the Party for more than six months (Evangelou and others v The Labour Party).

The case has been listed for a final hearing before a High Court judge in London on 4 August 2016 with judgment expected shortly afterwards.

The Claimants dispute that the Labour Party rulebook allows such a restriction, and the outcome of the case should determine rights of tens of thousands of new members to take part in the election and the nomination process to be held shortly by constituency parties.

The High Court of the British Virgin Islands (“BVI”) has just handed down judgment in a claim brought by Cable & Wireless (BVI) Ltd (“LIME BVI”) for judicial review of the decision of the BVI Telecommunications Regulatory Commission (“TRC”) finding that LIME BVI had engaged in an anti-competitive margin squeeze in breach of the requirements of the BVI Telecommunications Act 2006. The TRC had received a complaint from CCT, a competitor of LIME BVI, to the effect that LIME BVI (by certain “All Talk Calling Plans”) was charging average retail prices to its mobile customers for calls to LIME affiliates in other Caribbean jurisdictions which were below the wholesale charges available to CCT from those LIME mobile network operators. The TRC investigated the complaint and issued a decision on 1 June 2012 to the effect that LIME BVI had engaged in an anti-competitive margin squeeze during the period January 2009 to August 2010 which, had it continued, would likely have had anti-competitive effects contrary to the public interest and would have been detrimental to consumers in the BVI in the long term. The TRC ordered LIME BVI not to engage in such conduct and fined it USD$493,665.

The Court held that the TRC’s decision was ultra vires the 2006 Act and that it should be set aside. The Court held that the relevant section of the Act under which the TRC proceeded against LIME BVI applied only to present and future conduct, and not to past conduct. The Court agreed with the submission of LIME BVI that the TRC’s decision could only have been limited to offending conduct which ceased before the decision was issued. It agreed with LIME BVI’s argument that “the tenor of the Act lends itself to ex ante regulation of operators” only. The Court therefore found that the TRC had acted ultra vires the Act and that this warranted the decision being set aside. The Court also agreed with LIME BVI’s argument that the TRC acted ultra vires the 2006 Act by applying it to LIME affiliates outside the jurisdiction of BVI law (i.e. those LIME affiliates responsible for the setting of prices in the wholesale or upstream markets). However, the court held that this illegality alone would not have been sufficient to set aside the TRC’s decision.

Kassie Smith QC acted for LIME BVI in the proceedings before the High Court of the BVI.

To read the judgment, please click here.

 

The Court of Appeal handed down judgment today in the appeal brought by the Federation of Independent Practitioners (“FIPO”) from the Competition Appeal Tribunal’s (“CAT”) judgment of 29 April 2015.  FIPO had challenged the CMA’s finding that buyer power on the part of private medical insurers (“PMIs”) did not lead to an adverse effect on competition (“AEC”) in the market for private healthcare.   The CAT dismissed that appeal by a majority judgment (Sales LJ and Clare Potter) with Dermott Glynn, an economist member of the CAT, dissenting.

FIPO sought to appeal the CAT’s judgment on a number of grounds including that the CAT had reached irrational conclusions on issues such as fee capping, top-up fees and consumer choice.  FIPO also argued that the majority had wrongly rejected Mr Glynn’s dissenting judgment and/or failed to give adequate reasons for disagreeing with the dissenting judgment.  The CAT had given FIPO permission to appeal.

The Court of Appeal dismissed FIPO’s appeal on all grounds.  The Lord Chancellor gave the judgment of the Court.  He carefully considered the CMA’s reasoning in its Decision and determined that “the CMA’s overall conclusion, at which it was entitled to arrive, was that, despite its potential to do so, the buyer power of PMIs, and in particular Bupa and AXA PPP, had not in fact prevented, restricted or distorted competition or reduced consumer choice”.  He held that the CAT had properly considered FIPO’s criticisms of the CMA’s conclusions on appeal but that they were entitled, and indeed right, to reject them.  He also held that there was no obligation on the majority of the CAT to explain why they disagreed with Mr Glynn: “for the purposes of this appeal, it is sufficient to determine whether or not the challenges to the decision of the majority in the CAT are justified”.

Kassie Smith QC and Brendan McGurk acted for the CMA.

To read the full judgment, please click here.

The High Court has held today (22 July 2016) that the decision by West Berkshire Council to reduce funding to voluntary sector providers of short breaks to disabled children was unlawful. Steve Broach acted for the Claimants, instructed by Irwin Mitchell LLP.

The claim arose out of a decision, as part of the council’s budget setting for 2016/17, to reduce the funding given to voluntary sector organisations to provide support to families with disabled children by 52%. The Judge (Mrs Justice Elizabeth Laing DBE) held that this decision was flawed because Members were misdirected as to the requirements of the public sector equality duty and because Members failed to consider the other relevant legislation, including sufficiency duties relating to short breaks.

After permission to apply for judicial review was granted, the council took a second decision to ‘reaffirm’ the previous decision. The Judge held that this decision was ‘materially affected by apparent predetermination’ and so could not cure the flaws in the first decision.

The Judge rejected the council’s argument that relief should be refused because the Local Government Finance Act would require the full budget calculation to be quashed if relief were granted. The judgment also contains important guidance on the new requirement for permission and relief to be refused if the outcome would not have been substantially different if the conduct complained of had not occurred.

The judgment is here.