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.

JUSTICE Publishes Second Edition of Its Guide to Third Party Interventions in the Public Interest

JUSTICE has published the second edition of To Assist the Court, its guide to the conduct of third party interventions in the public interest. In his Foreword, Lord Philips of Worth Matravers describes it as an “invaluable and detailed guide to intervention”.

This is the second edition of the report written in 2009 by Eric Metcalfe, and contains details of the new costs rules for interveners under the Criminal Justice and Courts Act 2015. The second edition was published with the support and involvement of Freshfields Bruckhaus Deringer.

A copy of the second edition is now available and the JUSTICE press release can be found here.

UK’s first ‘opt-out’ collective action begins

The Consumer Rights Act 2015 introduced a new procedure for bringing ‘collective actions’ for damages for breaches of competition law. Claims can be brought by a claimant acting as representative of a class of persons (such as consumers who bought a particular product) who are alleged to have suffered losses as a result of the breach. Such claims can now be brought on an ‘opt-out’ basis, so that, for example, everyone who purchased a particular product during a particular time period will be part of the proceedings unless he or she actively chooses to ‘opt out’.

In order to bring an opt-out collective action, the claimant must seek a ‘collective proceedings order’ from the Competition Appeal Tribunal. The defendant is not required to file a defence unless and until such an order has been granted.

Press articles in March 2016 announced that the UK’s first opt-out collective action proceedings had been begun by a Ms Dorothy Gibson (the General Secretary of an unincorporated association calling itself the National Pensioners’ Convention) against Pride Mobility Products Ltd (‘Pride’). At that time, however, no proceedings had actually been issued, though Ms Gibson’s solicitors had sent Pride a pre-action letter.

The claim has now been issued: it was issued on 25 May 2016 and served on Pride’s solicitors on 14 June 2016.

Pride is an Oxfordshire-based distributor of mobility scooters. In May 2014 the Office of Fair Trading (‘OFT’) issued a decision finding that Pride and eight of its retailer customers had infringed the Chapter I prohibition in the Competition Act 1998. They did so by agreeing that the retailers would not advertise below-RRP prices on the internet for certain models of scooter. Pride advised the retailers that they should instead state on their websites, “Call for best price”. Pride had been concerned about the promotion of heavily discounted prices on the internet undermining the viability of ‘bricks and mortar’ stores and their ability to offer buyers of mobility scooters pre-sales physical assessments and after-sales support; but the OFT found that the way Pride had gone about trying to address that concern was unlawful. No penalty was imposed on Pride, and Pride did not seek to appeal the OFT’s decision. The decision did not include any finding as to whether consumers had suffered any financial losses.

The claimant Ms Gibson (who did not herself purchase any mobility scooter) is claiming damages on behalf of everyone who purchased a Pride scooter in the UK during the period covered by the infringement. If the Tribunal grants her the collective proceedings order she is seeking, she would then need to advertise the claim so that any consumers who did buy a scooter in that period could exercise their right to ‘opt out’.

Pride has today filed its Acknowledgment of Service stating that it intends to contest the application for a collective proceedings order and also to defend against the claim in full. The Tribunal is likely to list an initial case management conference in the near future at which it will then set a date for the hearing of the application for a collective proceedings order.

These proceedings will be followed with great interest by UK competition lawyers. As this is the first claim of its kind in the UK, the Tribunal will need to consider novel questions as to the principles it should apply when deciding whether or not to grant a collective proceedings order. As part of that consideration, the Tribunal may choose to draw on the jurisprudence of other common law countries that have a longer history of operating class action procedures.

If the claim is allowed to proceed beyond that stage (i.e. if a collective proceedings order is granted), then the Tribunal would need to go on to grapple with complex factual and economic issues concerning the identification and quantification of consumer losses flowing from vertical arrangements relating to how goods are advertised online. This is a topical area in light of the recent focus by competition regulators in the UK and across the EU on online sales restrictions of many and various forms.

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

Michael Armitage appears for successful Claimant in landmark High Court case on unlawful detention of children

In a landmark judgment handed down today, the High Court has ruled that it is unlawful for the Secretary of State for the Home Department (“SSHD“) to detain children under her immigration powers for any longer than 24 hours, irrespective of whether the relevant immigration official has reasonable grounds for suspecting the prospective detainee to be an adult: R (AA) v SSHD [2016] EWHC 1453 (Admin). The judgment is significant in that it is the first judicial consideration of the 2014 amendments to the Immigration Act 1971, which (as this case confirms) dramatically alter the previous state of the law on the lawfulness of child immigration detention.

The case was brought on behalf of a Sudanese asylum seeker, AA, who was detained by the SSHD for 13 days under her general powers of detention in paragraph 16 of Schedule 2 to the 1971 Act. The detention was said to be justified in accordance with Chapter 55 of the Enforcement Instructions and Guidance, the well-known Home Office policy which permits the detention of individuals claiming to be children but whose physical appearance / demeanour “very strongly suggests that they are significantly over 18 years of age and no other credible evidence exists to the contrary“. While AA was in detention, a local authority that had conducted a Merton “age assessment” concluded that AA was a child, and AA was eventually released on the basis of that assessment, there no longer being any basis under the SSHD’s policy for maintaining the detention.

AA contended in the proceedings that he had been unlawfully detained, notwithstanding that his detention had been in accordance with the terms of the SSHD’s policy. Notably, the Supreme Court held in 2013 (in R (AA (Afghanistan)) v SSHD [2013] UKSC 49) that the detention of a child in the mistaken but reasonable belief that he was an adult was not contrary to that policy, or to the general duty to safeguard and promote the welfare of children in section 55 of the Borders, Citizenship and Immigration Act 2009. However, after judgment in that case had been handed down, Schedule 2 to the 1971 Act was amended so as to subject the SSHD’s general powers of immigration detention to express statutory restrictions in the case of unaccompanied children: see paragraph 18B of Schedule 2 to the 1971 Act, which provides that unaccompanied children may only be detained in short-term holding facilities, and even then only for a maximum period of 24 hours. The word “child” is defined in paragraph 18B(7)in entirely objective terms as “a person under the age of 18“.

In a careful and detailed judgment, Sir Stephen Silber rejected the SSHD’s submission that the word “child” in paragraph 18B of Schedule 2 to the 1971 Act should be read so as to incorporate reference to the reasonable beliefs of the immigration official. “Child” had to be interpreted objectively, as a matter of “precedent fact” just as it had been in the seminal Supreme Court case of R (A) v Croydon [2009] 1 WLR 2557 in the context of local authorities’ duties to “children in need” under the Children Act 1989. It followed that the Claimant’s detention was unlawful, it being accepted that he was unaccompanied, and under 18 years old, at the time of his detention. It followed that AA’s detention was unlawful from the outset (with damages to be assessed in due course). In addition, the Judge held that even if (contrary to his findings on the main ground of judicial review) the SSHD could lawfully detain AA on the basis of a reasonable belief that he was an adult, AA’s detention was in any event unlawful from the date on which the SSHD received the local authority’s age assessment confirming the Claimant to be a child.

The judgment constitutes an extremely important development with the potential to have far-reaching implications for the detention of asylum-seeking young people. Permission to appeal to the Court of Appeal has already been granted by Sir Stephen Silber and judicial review practitioners will await the outcome of the appeal with interest. For now, however, the law is straightforward: individuals under 18 cannot lawfully be detained under immigration powers (i) for any longer than 24 hours or (ii) in adult immigration removal centres for any length of time. The SSHD’s beliefs about individual’s age are irrelevant.

Michael Armitage, instructed by Stuart Luke of Bhatia Best, appeared as sole counsel for the successful Claimant.

High Court orders NHS England to fund narcolepsy drug

Mr Justice Collins has handed down judgment in R (S) v NHS England, a claim in relation to the refusal by NHS England to fund the narcolepsy drug sodium oxybate (Xyrem) for a 17 year old girl. S was represented by Ian Wise QC and Stephen Broach, instructed by Hodge Jones and Allen.

At the conclusion of the hearing on 4 May 2016 the Judge made an interim order requiring NHS England to fund a three month trial of sodium oxybate. The judgment handed down today gives the Judge’s reasons for overturning the refusal of funding. In essence, the Judge found that NHS England erred in rejecting an ‘Individual Funding Request’ made on the basis that S had an exceptional need for the medication.

The Judge held that ‘a decision to refuse the treatment could not be supportable’ and that ‘this is a very rare case in which the decision making has gone wrong.’ There were failures by the Defendant to have regard to all the matters raised by the Claimant’s treating clinician and an ‘altogether too restrictive application of exceptionality’.

The full judgment is available here.

Please see article here.