The Lawyer General Counsel Strategy Summit 2016 – Gerry Facenna QC to chair round table on the new European Data Protection Regulation

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This year’s, The Lawyer General Counsel Strategy Summit, which is being held 11-13 May 2016, is all about “The role of the General Counsel as an ethical business leader.”

Monckton Chambers continues with its support of this prestigious annual event, which is organised by The Lawyer and positioned as a visionary forum for business leaders. Across the 2 days, the summit will feature over 30 speakers, an unrivalled line-up of senior legal practitioners from some of today’s leading organizations, coming together to share the strategies behind their success.

Gerry Facenna QC is one of the 30 leading practitioners selected to shape this “must-attend event” for GCs.  He will be chairing a round table session on “How will the new European Data Protection Regulation affect you?”

The new EU General Data Protection Regulation is the biggest shake-up of EU privacy and data protection laws in 20 years. It will become the basis for all EU data protection laws and creates a number of new rights for data subjects and new regulatory risks and challenges for businesses around how they store, use, access and return personal data.

Gerry Facenna’s round table session will cover:

  • Implications for business – new regulatory approaches to data protection and compliance challenges
  • Risks of increased, turnover-based financial penalties, new reporting obligations
  • Consumer rights to transfer data and switch providers
  • Update on rules on data transfers, EU-US ‘Privacy Shield’, safe harbour arrangements
  • Latest EU and domestic case law on data retention and processing

Gerry Facenna QC is well-positioned to chair this topic as he has appeared in more than forty cases before the EU Courts, and in a number of the landmark cases that have shaped UK data protection and information rights laws including, in 2016, Dawson-Damer v Taylor Wessing LLP in the Court of Appeal and Google v Vidal-Hall in the Supreme Court.

All That Glistens is Not Gold: Some environmental regulatory issues for the UK Construction Industry in a Post-Brexit World

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Michael Bowsher QC and Christopher Muttukumaru CB each gave a talk at a meeting of the Society of Construction Lawyers, held at the National Liberal Club  on 5 April 2016. Over 150 members of the society attended the talks, which will be publicised to the society’s 2500 members and affiliates worldwide.

Michael covered a number of key issues including the impact of a possible Brexit on Procurement Law (Practical Law’s Public Sector Blog) and on English contract law.

Christopher spoke on aspects of environmental law as they affect the delivery of major infrastructure projects in a post Brexit world. His paper to the society assumes that the UK electorate will vote to leave the EU and provides an indication of the timetable once notice of exit is given under Article 50 of the Treaty on European Union. It exposes aspects of the legal uncertainty that will follow in a transitional period after notice but before exit, as well as in the period thereafter. Using three examples of EU Directives that affect the delivery of major infrastructure projects, it argues that the UK will be reluctant to set aside adherence to its substantive obligations, since abrogation of the Directives would undermine the UK’s international reputation and undermine its policy aims. In any event, in two cases, the EU obligations are mirrored in international treaties that largely cover the same ground as two of the three EU Directives and therefore the UK would have to withdraw from them in parallel with Brexit.

To read the full paper by Christopher Muttukumaru CB, published by The Society of Construction Law, please click here.

Chambers Global 2016 – Monckton recognition for Competition Law expertise and Drew Holiner for Russian Dispute Resolution

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Chambers Global 2016 has just been published.  Covering 190 countries worldwide and also includes region-wide and global-wide sections, the Guide recognising the world’s best lawyers.

Monckton Chambers is one of four sets to be recognised for COMPETITION LAW (THE BAR) — UK and one of only two in the leading band.

Individual Monckton members ranked for this category are:

In addition, Drew Holiner, who is a member of the Russian Bar Association and noted by the Guide for his “extensive experience representing clients in high-stakes litigation and international arbitration proceedings concerning Russia and CIS countries” is ranked for DISPUTE RESOLUTION (EXPERTISE BASED ABROAD) — RUSSIA.

Olympic stadium contract must be disclosed in full

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The First Tier Tribunal (Information Rights) ruled today that the concession agreement under which West Ham United Football Club will become the new anchor tenant at the Olympic stadium, at the Queen Elizabeth Olympic Park in Stratford, London, must be disclosed in full.

The Tribunal agreed with the Information Commissioner that disclosing the contract in full would not be likely to prejudice the commercial interests of either the London Legacy Development Corporation, or of West Ham United Football Club, and that the relevant exemption from disclosure (section 43 FOIA) was not engaged.

A copy of the Information Commissioner’s decision can be viewed here, and the Tribunal’s judgment here.

Further commentary on the judgment can be found here: BBC, The Guardian, Mirror, Daily Mail.

Laura Elizabeth John acted for the Information Commissioner.

 

WHO’S WHO LEGAL (WWL) UK BAR 2016 – Monckton Chambers “Leading Set” Success

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The recently published WHO’S WHO LEGAL (WWL) UK BAR 2016 has singled out Monckton Chambers as  one of the UK Bar’s twelve  “Leading Sets “.  In addition there are 36 members listings across six categories: Competition (13),Government Contracts (8), Telecoms (8), Media & Entertainment (3), Sports (2), Environment (2).

Under Competition:

  • Jon Turner QC and Daniel Beard QC are recognised as two of only five “Most highly regarded”  “Leading Silks” for the practice area.
  • Josh Holmes is listed as one of only three “Leading Juniors”.

Also listed in this field are:

Under  Government Contracts:

  • Michael Bowsher QC is one of three Silks recognised as “Most Highly Regarded Individuals”.
  • Rob Williams is recognised as one of only three Juniors singled out.

Also listed in this field are:

Under Telecommunications:

  • Jon Turner QC is named as one of four “most highly regarded”  “Leading Silks”.
  • Robert Palmer is also one of only four for the “Leading Juniors” table.

Also listed in this field are:

Under Media & Entertainment:

Under  Sports:

  • Paul Harris QC is one of only four “Leading Silks” in the “Most Highly Regarded Individuals”  tables.

Also listed in this field is:

Under  Environment:

This is the second edition of Who’s Who Legal: UK Bar, a comprehensive guide to 24 distinct practice areas at the bar, which includes 1119 listings from 107 barristers’ chambers and is published by Law Business Research Ltd.

New joint Heads for Monckton Chambers – Tim Ward QC and Philip Moser QC take over from Paul Lasok QC

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After 14 years as Head of Monckton Chambers, 10 of which as sole Head, Paul Lasok QC is stepping down and handing over the leadership to Tim Ward QC and Philip Moser QC, to lead the set in the next phase of its development. The new joint Heads of Monckton Chambers were elected following a full membership vote.

Under Paul Lasok’s direction, Monckton Chambers has grown substantially, trebling its fee income in 10 years from £9.5m in 2006 to a current reported turnover of £29.7m. The last twelve months have seen a particularly significant leap with an increase in turnover of a record £8M. The change at the top is taking place not only on a financial high but it is also appropriately timed in that it is almost 20 years to the day since Monckton Chambers was established under its current name.

Paul Lasok hands over the reins of an established practice of 59 members, 16 of whom are Silks, with recognised core strengths in particular in Competition, Admin & Public Law, EU, Procurement and Indirect Tax. He has led members to appreciate the need to deal with shifting expectations and work to client demands; perhaps the greatest evidence of this is the way Monckton Chambers has embraced Direct Access so that it now accounts for 40% of all fees.

Philip Moser comments “Monckton Chambers has been tremendously served by Paul Lasok. He has established a collegiate ethos by which each member of chambers knows that individual success rests on the success of chambers as a whole. All members have benefited from his wisdom and his leadership.”

Tim Ward comments “I am looking forward to working with Philip and everyone at Monckton Chambers to building upon the undoubted success Paul Lasok has helped members of chambers to achieve over the past 14 years.”

Tim Ward and Philip Moser take over as joint Heads of Chambers with effect from Monday 14 March. Paul Lasok remains in full time practice at Monckton Chambers.

Hate Speech: Jeremy McBride advised ECRI on General Policy Recommendation

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The European Commission against Racism and Intolerance (ECRI) has adopted a General Policy Recommendation addressed to all 47 member States of the Council of Europe on combating hate speech. The Recommendation focuses on the phenomenon of hate speech and the damaging consequences of its use. It sets out what should be understood to constitute hate speech and identifies the measures that can and need to be taken to combat its use. In so doing, it builds upon and substantially strengthens existing European and international standards.

The starting point for the Recommendation is the recognition of the fundamental importance of freedom of expression, tolerance and respect for equal dignity, all of which are guaranteed under numerous international instruments accepted by member States of the Council of Europe. As hate speech can in some cases be effectively responded to without restricting freedom of expression, the Recommendation has a graduated approach to the measures that need to be undertaken: raising public awareness; countering any use of hate speech; providing support to those targeted by such use; promoting self-regulation; taking regulatory action; imposing administrative and civil liability; withdrawing support from particular organisations and prohibiting others; and imposing criminal sanctions in some very specific and limited circumstances. In underlining that the use of criminal sanctions should not be the primary focus of action against the use of hate speech, the Recommendation emphasises that addressing the conditions conducive to the use of hate speech and vigorously countering such use are much more likely to prove effective in ultimately eradicating such use.

The Recommendation is addressed to the governments of Council of Europe member States and is expected to become the key European standard regarding efforts to combat the use of hate speech. Its effective implementation will require the involvement and commitment of a wide range of private and non-governmental actors.

Although the Recommendation is particularly concerned with the use of hate speech falling within ECRI’s work, its provisions are envisaged as being applicable to all forms of such speech, i.e., on grounds additional to “race”, colour, language, religion, nationality, national or ethnic origin, gender identity or sexual orientation.

Jeremy McBride advised ECRI on the drafting of the Recommendation and prepared its Explanatory Memorandum (read here).

Tribunal cuts down estate agents’ Money Laundering Regs fine

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The First-tier Tribunal has reduced the fine imposed on a Leicestershire estate agency for breaches of the ‘know your client’ requirements of the Money Laundering Regulations 2007.  The original penalty of £169,652 was the largest ever imposed on an estate agency business under the Regulations.  Following an appeal hearing lasting 3 days, the Tribunal has reduced the penalty to £5,000.

The original penalty was imposed on the estate agency (Jackson Grundy Limited) by the Office of Fair Trading (OFT) in March 2014 as one of its last decisions prior to the transfer of all its functions to other regulators.  The OFT calculated the penalty amount under its ‘Interim Penalty Policy’ which set out a scheme for calculating penalty amounts, starting with a percentage of ‘relevant turnover’ at ‘Stage 1’, and subsequent stages at which other factors were taken into account.

A few days after the OFT took its decision, the OFT’s responsibilities for regulating estate agency businesses under the Money Laundering Regulations transferred to HM Revenue & Customs (HMRC).  The estate agency exercised its right to obtain a review of the decision by HMRC.  HMRC upheld the original penalty.  The estate agency then appealed to the Tribunal.

At the hearing before the Tribunal, both parties agreed that the Tribunal had jurisdiction to consider all the facts as it found them to be, and to decide whether the penalty amount that had been imposed was appropriate as constituting an “effective, proportionate and dissuasive” penalty, and to decide for itself what would constitute an appropriate penalty to meet the facts of the case.

A copy of the decision is available here.  (The Tribunal provides a summary of its reasons at paragraphs 3 and 4.)

Monckton barristers represented both parties: the Appellant was represented by Alan Bates, and the Respondent by Peter Mantle.

Judicial Review Proceedings Issued against Government over Arms Exports to Saudi Arabia

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Judicial review proceedings have been issued in the High Court challenging the government’s decision to export arms to Saudi Arabia for possible use in the conflict in Yemen.

Conor McCarthy has been instructed by Leigh Day in the claim brought by the Campaign Against the Arms Trade.

The challenge follows increasing evidence that Saudi Arabian forces are violating international humanitarian law in Yemen. This evidence includes recent findings by the UN Panel of Experts on Yemen (appointed by the UN Security Council) that airstrikes by coalition forces in Yemen were violating the rules of distinction, proportionality and the prohibition on indiscriminate targeting as well as other rules of international law regarding the conduct of hostilities.

The United Kingdom has presently licensed the export of around £4.6 billion of arms and military equipment to Saudi Arabia.

If permission for the judicial review is granted,  then the High Court will be asked to consider whether the continued arms exports contravene the UK government’s commitments under UK and EU rules regulating the export of military equipment.

Conor McCarthy is acting for the claimant, and instructed by Leigh Day, led by Martin Chamberlain QC.

Paul Lasok QC and Anneliese Blackwood act for HMRC in landmark win in the Supreme Court against £100m UBS and DB ‘bankers’ bonus’ tax scheme appeal

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Paul Lasok QC and Anneliese Blackwood in Supreme Court Win

The Supreme Court has allowed HMRC’s appeals against UBS AG (“UBS”) and DB Group Services (UK) Ltd (“DB”) in relation to detailed schemes designed to avoid the payment of tax on bankers’ bonuses. The determinations and decisions which UBS and DB appealed against required the payment to HMRC of nearly £100 million. In each case, the scheme used by UBS and DB respectively was intended to take advantage of Chapter 2 of Part 7 of the Income Tax (Earnings and Pensions) Act 2003 (“ITEPA”), as amended by Schedule 22 to the Finance Act 2003. The judgement of the Supreme Court was given by Lord Reed, with whom Lord Neuberger, Lord Mance, Lord Carnwath and Lord Hodge agreed.

Lord Reed noted that there were two key factors identified in Barclays Mercantile [2004] UKHL 51, at para 34. First, “tax is generally imposed by reference to economic activities or transactions which exist, as Lord Wilberforce said, ‘in the real world’”. Secondly, tax avoidance schemes commonly include “elements which have been inserted without any business or commercial purpose but are intended to have the effect of removing the transaction from the scope of the charge”. He went on to note that Carnwath LJ said in the Court of Appeal in Barclays Mercantile, [2002] EWCA Civ 1853, at para 66, that taxing statutes generally “draw their life-blood from real world transactions with real world economic effects”. Lord Reed stated that where an enactment is of that character, and a transaction, or an element of a composite transaction, has no purpose other than tax avoidance, it can usually be said, in the words of Carnwath LJ, that “to allow tax treatment to be governed by transactions which have no real world purpose of any kind is inconsistent with that fundamental characteristic.” He concluded that, as Ribeiro PJ said in Collector of Stamp Revenue v Arrowtown Assets Ltd [2003] HKCFA 46, at para 35, where schemes involve intermediate transactions inserted for the sole purpose of tax avoidance, it is quite likely that a purposive interpretation will result in such steps being disregarded for fiscal purposes although not always. Some enactments, properly construed, confer relief from taxation even where the transaction in question forms part of a wider arrangement undertaken solely for the purpose of obtaining the relief.  He concluded that the position was ultimately summarised by Ribeiro PJ in Arrowtown Assets, at para 35: “The ultimate question is whether the relevant statutory provisions, construed purposively, were intended to apply to the transaction, viewed realistically”.

Lord Reed considered that section 423 of ITEPA, when construed purposively, was not intended to apply to the schemes in question. He found that the reference in section 423(1) to “any contract, agreement, arrangement or condition which makes provision to which any of subsections (2) to (4) applies” was to be construed as being limited to provision having a business or commercial purpose, and not to commercially irrelevant conditions whose only purpose is the obtaining of the exemption. On the facts he found that the restrictions on the shares in the UBS and DB schemes respectively were commercially irrelevant conditions whose only purpose was the obtaining of the exemption. As a consequence he concluded that the schemes involved the provision of unrestricted shares and as such fell outside the tax exemption provided for in Chapter 2 of Part 7 of ITEPA.

Paul Lasok QC and Anneliese Blackwood appeared on behalf of HMRC.

To view the full judgment, please click here.