Brendan McGurk successfully defends first penalty appeal on behalf of Claims Management Regulator

The Claims Management Regulator regulates companies providing claims management services. Such companies (who seek clients who might wish to bring personal injury claims or claims for financial mis-selling) are subject to conditions of authorisation on the same model as entities conducting regulated activity must be authorised under FSMA 2000. The CMR has been granted a new penalty jurisdiction permitting it to impose penalties on Claims Management Companies for breach of their conditions of authorisation. The jurisdiction was conferred under section 139 of the Financial Services (Banking Reform) Act 2013 which amends the Schedule to the Compensation Act 2006.

In the first reported decision on the new penalty jurisdiction, Brendan McGurk successfully defended an appeal by Complete Claims Solutions Limited.

The judgment is here.

Supreme Court rules Legal Aid residence test unlawful

R (Public Law Project) v Lord Chancellor [2016] UKSC 39

This week the Supreme Court handed down judgment in R (Public Law Project) v Lord Chancellor, in which it unanimously concluded that the proposed restriction of legal aid on grounds of residence under the draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2014 was ultra vires the Henry VIII clause in the enabling Legal Aid, Sentencing and Punishment of Offenders Act 2012. The judgment follows the Supreme Court’s decision on 18 April 2016 to cut short oral argument on the basis that it had already concluded that the appeal should be allowed.

Eric Metcalfe acted for the Office of the Children’s Commissioner for England, which was granted leave to intervene in the Supreme Court by way of written submissions.

Stephen Cragg QC is a trustee of PLP who brought the case.

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

Gerry Facenna QC and Jack Williams advise on Article 50 TEU – should Parliament or the executive trigger UK withdrawal from the EU?

Gerry Facenna QC  and Jack Williams  have been instructed by John Halford of Bindmans LLP (as part of a six-counsel team plus constitutional experts) to advise a group of private individuals with an interest in the proper constitutional mechanism by which the UK can withdraw from the EU. The team is acting with some funding raised from the crowdfunding platform, Crowdjustice. Over 400 individuals, representing a cross-section of ordinary people who are likely to be substantially affected by the UK’s departure from the EU, have made donations (capped at £100).

The key question is whether Parliamentary involvement is necessary to trigger any UK withdrawal from the EU or if mere use of executive power (under any subsisting prerogative power) is sufficient.

On advice, a letter has been sent to Government on behalf of those represented seeking clarification that the process of withdrawal from the EU under Article 50 TEU will not be commenced until it is authorised by elected officials in Parliament through primary legislation. This letter sets out an analysis of why it would be unlawful for any Minister to purport to trigger the Article 50 TEU process without the involvement and authorisation of the sovereign, democratically-elected UK Parliament.

The full letter to Government has been published online and is available to read in full here and here (along with further information about the crowd-funded action).

Brexit Latest – a round-up of Monckton Chambers activity

Monckton Chambers and its members, as leaders in the fields of international, European, public and regulatory law, have stepped up to provide objective and politically neutral insight into the pressing questions that government, business and individuals face as a result of Brexit.In the last 2 weeks we have had significant activity in response to the EU referendum decision in favour of “Leave”:

Introducing the Monckton Chambers Brexit Blog: work began immediately to set up a Blog in order to post a range of content, aimed at specialists and non-specialists alike. Some of the pieces will be primers on the law that underlies the big stories in the news. Others will look in more depth at specific issues from specialist areas where EU law is important, and where Brexit may reshape the landscape, such as competition law, tax, procurement, financial services, telecommunications or immigration.

Current posts include:

Although we will be picking up and commenting on Brexit issues in the media, this Blog is not about recycling other newsfeeds.   Our aim is to make rigorous and objective legal analysis available not only to our clients, but also to help inform the press, policy makers and the wider public debate.

To subscribe to receive daily alerts of posts on the Blog, sign up here.

Focused Seminar Programme: in response to the need for information and debate, a ‘pop-up seminar’ on the implications of the Brexit decision, was quickly organised for the 30th June.  Selling out within an hour of publicising, we moved the seminar to a larger venue and soon attracted over 200 delegates.  The slides are available here. A podcast of the event will be posted soon.

Our Procurement Law barristers have also rallied to the demand from clients and contacts to hear and explore more and there is an evening seminar on the 13th July looking at  Procurement Futures: what lies ahead for procurement law? What will be the effects on future plans and challenges?  To book a place, please click here.

Other seminars addressing other areas of focus are being organised.  Watch out for future Brexit Latest news or visit our Events page.

Monckton Chambers’ Members in the Media: as leaders in the fields of international, European, public and regulatory law, members have been invited to comment in media interviews and other commentary.

Michael Bowsher QC discussed “The legal matters of Brexit” with Share Radio. Please click here to listen to the podcast.

Philip Moser QC discussed the legal case threatened by Mishcon de Reya and the Prime Minister’s power to trigger Article 50 TEU in an interview with Radio Sputnik. Please click here to listen to the podcast.

George Peretz QC commented on the position for UK Expats in a number of news items including The Financial Times and the BBC online news.

 

Commission accepts commitments regarding container freight announcements – Woodpulp revisited?

The Commission has issued an Article 9 commitment decision, terminating its Article 101 TFEU investigation into suspected price signalling by container liner shipping companies. The Commission opened antitrust proceedings in November 2013, claiming that the carriers’ practice of publishing their future freight increases (“GRIs”) on their websites and in the press increased transparency in the market and reduced uncertainty about the carriers’ pricing behaviour. Its case was that the announcement of non-binding percentage increases, several weeks in advance, enabled carriers to align their prices and coordinate their behaviour. That case marked a significant departure from the Woodpulp  case law, which requires evidence of collusion rather than unilateral publication of pricing intentions alone.

The carriers have been negotiating commitments since 2015 which were market tested in February 2016. Fourteen carriers have agreed to stop publishing GRIs and to ensure that any future price announcements contain a time-limited binding offer that sets out details of the maximum total price and its sub-components. The carriers are free to accept lower rates within the customary booking period for consignments or to negotiate different rates as part of long-term or bilateral agreements.

A copy of the Commission’s press release is here.

Anneli Howard acted for China Shipping Container Lines during the investigation and negotiation of commitments. In the end, following their restructuring, the Commission decided to close proceedings against China Shipping and its agencies without it having to issue commitments.

Paul Harris QC instructed on Quinn Emanuel £19bn class action against MasterCard

MasterCard is facing a multi-billion pound damages claim, that could reach £19 billion, for imposing illegal card charges that were ultimately borne by UK consumers. The claim, the biggest in UK legal history, will be one of the first to be filed under the Consumer Rights Act 2015, which allows a collective damages claim to be brought on behalf of a class of people who have suffered loss.

This ‘follow-on’ claim comes after a long-running legal battle with the European Commission that ended in 2014 and which found MasterCard to have infringed EU law by imposing charges (known as ‘interchange’ fees) on the use of its debit and credit cards.

Quinn Emanuel is leading the claim and the class representative is former Chief Financial Services ombudsman Walter Merricks. Quinn Emanuel partners Boris Bronfentrinker and Kate Vernon have instructed Monckton Chambers’ Paul Harris QC to lead the Counsel team.

Legal proceedings to ensure parliamentary due process for Article 50 withdrawal – Anneli Howard retained as counsel

Mishcon de Reya has been instructed, on behalf of a group of clients, to seek a pre-emptive declaration from the Courts to clarify the constitutional requirements for the UK Government’s withdrawal from the EU. Legal steps have been taken to ensure Article 50 TEU – the procedure for notifying and negotiating the UK’s withdrawal from the EU – cannot be triggered without an Act of Parliament. Mishcon de Reya has retained Anneli Howard as part of the wider EU/ public law counsel team of Lord David Pannick QC, Rhodri Thompson QC and Tom Hickman.

See Mishcon De Reya news release.

Brexit – opportunities and challenges seminar – slides available

“The result of the referendum raises significant uncertainties about the future development of a wide range of areas of the law. That uncertainty is in itself an important factor for clients. At Monckton Chambers we have given a great deal of thought to how a vote for Brexit might pan out, and we look forward to working with our clients to address both the opportunities and challenges of Brexit.” Tim Ward QC, joint Head of Monckton Chambers.

Monckton Chambers, as a leading set in the field, presented a ‘pop-up seminar’ on the implications of the Brexit decision, on the 30th June, attracting over 200 delegates.

The speakers included Michael Bowsher QC, Philip Moser QC, Gerry Facenna QC, Piers Gardner and Anneli Howard, chaired by Tim Ward QC.

To download the presentation slides please click here.

A podcast of the event will be available in the near future.

AG Panel Appointments – 8 Monckton members now on A Panel with 19 member appointments in total

Ben Lask, Rob Williams and Anneli Howard have been elevated to the Attorney General’s Junior Counsel to the Crown’s A Panel. Robert Palmer has been reappointed for a further 5 years to the A Panel and Eric Metcalfe has been elevated from the C to the B panel.

The Attorney General (AG) maintains four panels (3 London and one Regional) of junior counsel to undertake civil and EC work for all Government Departments and also three panels of junior counsel to undertake public international law. All appointments are for 5 years.

In total, there are 19 members of Monckton Chambers currently AG Junior Counsel to the Crown:

London A Panel Raymond Hill, Andrew Macnab, Peter Mantle, Robert Palmer, Valentina Sloane, Ben Lask, Rob Williams and Anneli Howard

London B Panel Alan Bates, Julian Gregory, Josh Holmes, Ronit Kreisberger, Brendan McGurk, Ewan West, and Eric Metcalfe.

London C Panel Anneliese Blackwood, Tarlochan Lall and Julianne Kerr Morrison

Public International Law C Panel Nikolaus Grubeck

Michael Bowsher QC acts for FP McCann in High Court ruling that £100 million Northern Irish construction contract was awarded in breach of public procurement regulations.

High Court judge, Mr Justice Colton, has ruled that the Department for Regional Development in Northern Ireland breached public contract regulations in rejecting the tender submitted in 2009 as part of a joint venture between FP McCann Limited and Balfour Beatty (“BBMC”).  Recent government information shows that the cost of the project has now reached up to £135 million.  This consortium’s tender was part of a public procurement process run by DRD’s Road Service to appoint contractors to design and build the A8 dual carriageway between Belfast and Larne. The contract was to the most economically advantageous tender. The joint venture did not secure the contract because it was asserted by the Department the bid that been submitted  was an abnormally low tender and that this carried a risk that BBMC and Roads Service would be unable to agree a target price after the contract had been entered into, and that as result the project would stall. Lagan Ferrovial Costan Consortium was appointed as contractor and they have been carrying out works on the A8 over recent years.

Michael Bowsher QC, acting for the construction company FP McCann Limited, claimed that BBMC had been unlawfully denied the work and should be entitled to damages.

The judge found that there were significant flaws in the process of assessing the plaintiff’s tender.  The judge ruled that “there has been a clear breach of duty by the defendant in respect of its consideration of the BBMC bid and specifically a breach of Regulation 30 (of the Public Contracts Regulations 2006).”  The judge adjourned the case for further submissions to assess the scale of the compensation with words: “The defendant’s breach of duty should be marked by a meaningful award to reflect the loss of opportunity to the plaintiff to be awarded a significant and potentially lucrative contract.”

See Court’s summary of judgment.