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.

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.

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.

On Friday 27 May, the Court of Appeal handed down an important judgment on the interplay between competition law and the licensing of essential patents.

This is part of a landmark patent infringement case where Unwired Planet, a “patent assertion entity” that has acquired from Ericsson certain “standard essential patents” (“SEPS”) used in smartphones and network equipment, has sued Samsung, Google and Huawei for infringing the SEPS (Google has largely settled out).

Ericsson continues to derive licensing income from the patent assertion entity, on an ongoing basis.  Among other things, it is contended that Ericsson is seeking to circumvent its own obligations to license its patents on Fair Reasonable and Non Discriminatory (“FRAND”) terms by using a “privateer”.  Ericsson has been joined to the action.  Samsung and Huawei have raised various competition law defences, under Articles 101 and 102 TFEU.

In the High Court, Birss J. struck out one of Samsung’s Article 101 TFEU defences.  This related to the complaint about the effectiveness of the transfer from Ericsson of its obligation to license essential patents on FRAND terms.  Samsung argued, among other things, that the content of Ericsson’s original “non-discrimination” obligation would be circumvented by Ericsson transferring the patents to the patent assertion entity, without the new entity needing to have regard to Ericsson’s duty of non-discrimination.  The High Court ruled that this contention should be struck out: it was enough for Unwired Planet to make a fresh FRAND declaration of its own.

The Court of Appeal has overruled the High Court on this issue.  It has accepted that Samsung has an arguable case that the arrangement whereby Ericsson transferred the SEPs to Unwired Planet is in breach of Article 101 TFEU and void because of the failure to ensure that Unwired Planet would respect the non-discrimination aspect of Ericsson’s FRAND obligation.  It upheld the Judge on another aspect of the complaint, however, which related to whether the transfer of the patents had given prospective licensees the same enforceable rights to insist on FRAND terms as such persons used to have against Ericsson, when Ericsson owned and licensed the patents directly.

In his judgment, Lord Justice Kitchin (with whom Lord Justice Tomlinson and Sir Timothy Lloyd agreed) recognised that this is a developing area of the law which has received recent attention from the Court of Justice of the EU and the European Commission.  He accepted Samsung’s argument that it has a realistic prospect of persuading the trial judge that it would be anti-competitive for Unwired Planet to be able to charge licence fees which are significantly higher than those which Ericsson itself charged and which would have been discriminatory having regard to Ericsson’s existing licensees had Ericsson sought to charge them directly.  He recognised that these higher licence fees could distort or restrict competition in downstream markets to the detriment of consumers.

Lord Justice Kitchin also accepted the inter-relationship between Samsung’s non-discrimination argument and its other competition law defences, in particular the argument that Ericsson strategically sold part of its portfolio of essential patents to Unwired Planet, while keeping a close ongoing involvement in the monetization of those patents.  He considered that Samsung has an arguable case that Ericsson has sought to circumvent its own FRAND obligation and simultaneously benefit from the increased licence fees.

Samsung’s various competition law arguments will be considered at the 13 week trial, due to commence in October 2016.

Samsung is represented by Jon Turner QC, Meredith Pickford QC, Laura Elizabeth John and James Bourke.

The full judgment is available here.

Iiyama Benelux BV & Ors v Schott AG & Ors

Mr Justice Mann has dismissed claims brought by iiyama in respect of cartels concerning Cathode Ray Tubes (CRTs) and CRT Glass, on the basis that the claims fall outside the territorial scope of EU competition law. The claimants were subsidiaries of iiyama, mostly based in Europe, and alleged that they had purchased completed computer monitors which incorporated CRTs and CRT Glass and which had been subject to cartels. The claims relied on EU competition law, and were initially brought on the basis of two infringement decisions made by the European Commission in relation to CRTs and CRT Glass respectively. However, it later transpired that the CRTs and Glass which were ultimately purchased by the claimants had originally been sold in Asia, and only arrived in Europe through a supply chain with a number of intervening stages.

The Defendants (who were variously parties to the Commission’s decisions relating to CRTs and CRT Glass) applied to have the claims struck out, or for summary judgment, or to have permission to serve out of the jurisdiction set aside, all on the basis that the claim was not properly arguable.

Mann J found that the claim against the Glass Defendants failed because the cartel found by the Commission related only to Europe, and did not cover supplies of CRT Glass in Asia. It was not possible to see how the EU cartel affected sales in Asia, and although the claimant alleged that there might be a worldwide cartel, no such cartel had been found by the Commission, and no such cartel was pleaded.

The Court also found that the claims against both the CRT and Glass defendants fell outside the territorial scope of EU competition law, considering two doctrines of EU law – the implementation doctrine and the qualified effects doctrine. The claimants could not rely on the implementation doctrine, which required that the cartel was implemented in the EU because the relevant sales of Glass and CRTs had been made in Asia. The claimants also could not rely on the qualified effects doctrine – i.e. that the cartel had foreseeable, immediate and substantial effects in the EU – because the supply chain by which they had acquired the products was not immediate.

Tim Ward QC and Rob Williams acted for Schott instructed by Travers Smith LLP. Daniel Beard QC acted for Samsung SDI instructed by Allen & Overy LLP.

The full judgment is available here.