MOJ Whiplash reforms are compatible with Articles 102 and 106 TFEU

The Administrative Court has rejected a judicial review challenge to the Government’s recent whiplash reforms, which on 6 April 2015 introduced a mandatory requirement for personal injury solicitors to instruct medical experts via the MedCo internet portal.

A leading medical reporting organisation (MRO), Speed Medical Examinations Limited, sought to challenge the operation of the Portal on the basis that it had affected its volume of business and restricted competition in the market for medical expert reports contrary to  EU and national competition law. Mr Justice Cranston held that MedCo could not be abusing its position in the upstream market for the provision of access to medical experts by distorting competition in the downstream market for the supply of medical reports in circumstances where it was not active or had no commercial interests downstream market and/or derived no direct or indirect economic advantage from distorting competition. As a regulator, acting in the public interest, implementing a policy of the Secretary of State for Justice, it was performing a public function and could not be resorting to methods different from those governing normal competition. Further, in implementing government policy, MedCo was complying with a legal requirement under Schedule 3 of the 1998 Act which sheltered it from all liability. Lastly, Cranston J held that even in there were some effect on competition downstream, the MedCo scheme formed part of the wider whiplash reforms programme and was objectively justified on the basis that it removed conflicts of interests from the selection process and ensured the independence of medical experts and MROs providing evidence for whiplash claims. At the same time, it was proportionate and did not go beyond what was necessary as it ensured that all MROs had an opportunity to be presented in the search results and preserved choice for users. Competition between large and small MROs was maintained and there were no barriers to entry that would make the market overly rigid or prevent future evolution of the market.  The Portal was less draconian that other alternatives discussed in the consultations.  A rationality challenge was also dismissed.

This judgment is important for the assessment of conduct that straddles two related markets under Art 102 TFEU as well as the characterisation of public service entities under competition law.

Anneli Howard, led by James Eadie QC, acted as junior counsel for the Secretary of State for Justice.

A copy of the judgment can be found here.

 

Reference to CJEU on ‘DRIPA’ data retention regime and Digital Rights Ireland

R v Secretary of State for the Home Department ex p David Davis MP, Tom Watson MP, Peter Brice and Geoffrey Lewis

Open Rights Group, Privacy International and the Law Society intervening

The Court of Appeal has today handed down judgment in an appeal concerned with the Home Secretary’s powers in relation to the retention of communications data and the validity of section 1 of the Data Retention and Investigatory Powers Act 2014 (“DRIPA”). It has decided to refer questions to the CJEU concerning the meaning of the CJEU’s judgment in Joined Cases C/293/12 and C/594/12 Digital Rights Ireland Ltd and Seitlinger and Others.

The Home Secretary appealed against the judgment and order of the Divisional Court ([2015] EWHC 2092 (Admin)), which found s1 DRIPA to be contrary to the CJEU’s judgment and disapplied DRIPA with effect from March next year. S1 DRIPA gives the Home Secretary the power to require public telecommunications operators to retain communications data for one or more specified purposes, including, but not limited to, the prevention of serious crime. The Divisional Court accepted the argument of the Claimants, including David Davis MP and Tom Watson MP, that s1 DRIPA was inconsistent with Articles 7 and 8 of the EU Charter because it did not set down clear rules governing access to the data and, in particular, did not make access dependent on prior judicial or independent review.

The Secretary of State appealed on the basis that the judgment below was based on a misunderstanding of the CJEU’s judgment in Digital Rights Ireland, delivered on 8 April 2014.

In its judgment the Court of Appeal has accepted, on a provisional basis, the Home Secretary’s argument that Digital Rights Ireland, which invalidated Directive 2006/24/EC (“the Data Retention Directive”), did not lay down mandatory requirements applicable to all Member States’ domestic data retention regimes, contrary to the Divisional Court’s interpretation. At the request of the Home Secretary, and given the difference in approach between different national courts, the Court of Appeal decided to refer questions as to the correct interpretation of Digital Rights Ireland to the CJEU, including on whether the CJEU in that judgment intended to expand the scope of Articles 7 and 8 of the EU Charter beyond the effect of Article 8 ECHR.

Daniel Beard QC and Gerry Facenna acted for the Secretary of State.

Azeem Suterwalla acted for the Respondents Brice and Lewis.

The judgment is available here.

 

Council of the Bars and Law Societies of Europe (CCBE) official visit to the European Court of Human Rights

President Raimondi received a delegation from the Council of Bars and Law Societies of Europe (CCBE) led by her President, Maria Ślązak, for a working meeting on 13 November 2015. Piers Gardner is the UK member of the CCBE Permanent Delegation to the European Court of Human Rights and participated in the meeting.

The delegation also met Kristina Pardalos, judge elected in respect of San Marino, Julia Laffranque, judge elected in respect of Estonia, Yonko Grozev, judge elected in respect of Bulgaria and members of the Registry to discuss the Court’s working methods and the impact of recent changes to the Rules of Court.

How UK renegotiation will be enforced

Philip Moser QC has written an article for UKAEL.

Commentators on the Prime Minister’s letter to the President of the Council (a copy can be found here) have focussed principally on the “four key points” for renegotiation (see e.g. the BBC’s analysis). Less, if any, attention has been paid to the passage in the letter that gives a clear indication of the form which the Prime Minister intends the renegotiated agreement to take.

To read full article please click here.

Brendan McGurk called to the Northern Irish Bar

In October 2015, Brendan McGurk was called to the Bar of Northern Ireland. Having acted in an advisory capacity in a number of cases issued in Northern Ireland, Brendan now has formal rights of audience to appear in the High Court in Belfast. Having lived and studied (to A-level) in Northern Ireland, Brendan is looking forward to further expanding his Public Law, Procurement and Commercial practices across the Irish Sea.

Commercial agent’s ‘Shearman v Hunter Boot clause’ severed by Mercantile Court

Brand Studio Limited v St John’s Knits [2015] EWHC 3143 (QB), Teare J

This case concerned a commercial agency between a UK agent and a Californian principal. The agency contract contained a clause that elected Regulation 17 indemnity upon termination, with a proviso that the agent would get Regulation 17 compensation if that proved to be cheaper for the principal. It was common ground that the effect of that proviso was unlawful per the finding in relation to an essentially identical clause in Shearman v Hunter Boot Ltd [2014] EWHC 47 (QB). The principal in Brand submitted that the proviso could however be severed, leaving the lawful choice of an indemnity in the first part of the clause; a point left open in Shearman.

The Court (Teare J) held that the Regulation 17(2) question, whether the contract “otherwise provides”, fell to be considered after, not before, severance, particularly in this case where the agreement itself expressly contemplated severance in the event that any provision of the agreement was held to be invalid. Further, that following Beckett Investment Management Group v Hall [2007] 1 ICR 1539 (CA) the threefold test for severance formulated in Sadler v Imperial Life Assurance [1988] IRLR 388 should be adopted. The issue was whether the removal of the unenforceable provision so changed the character of the contract that it became “not the sort of contract that the parties entered into at all”. The judge found that, after severance, it was an agency contract in which the agent has agreed to accept an indemnity whether or not compensation would be a lesser sum, so that it remained “the sort of contract that the parties had entered into”. Consequently the agency contract “otherwise provides” for indemnity under Regulation 17.

Philip Moser QC and Azeem Suterwalla (instructed by Harbottle & Lewis LLP) acting for the Defendant principal.

To read the full judgment please click here Brand Studio Limited v. St John Knits

 

Court of Appeal provides guidance on the meaning of “family member” for the purposes of EU free movement rights: Entry Clearance Officer v SM (Algeria) [2015] EWCA Civ 1109

In a judgment handed down on 4 November 2015, the Court of Appeal allowed an appeal against a decision of the Upper Tribunal concerning the rights of EU citizens to bring non-EU family members into the UK.  In doing so, it clarified the scope of the term “family member” in EU law as it applies to adoptive relationships, in particular those with an inter-country element.
The case concerned an application by an Algerian child (“SM”) to enter the UK as the family member of a French national who had assumed guardianship of her under Algerian law.  Rights of entry and residence are conferred on EU citizens and their family members by Directive 2004/38/EC (“the Citizenship Directive”), as implemented in the UK by the Immigration (European Economic Area) Regulations 2006 (“the Regulations”).  SM’s application had been refused on the basis that, since the Algerian arrangement was not recognised as an adoption under UK law, she did not qualify as a family member for the purposes of the Citizenship Directive and the Regulations.

 

The Upper Tribunal had allowed SM’s appeal, holding that the 2006 Regulations needed to be interpreted in conformity with the Article 8 of the ECHR and that, adopting such a construction, SM qualified as a family member of her sponsor.
The Court of Appeal overturned the Upper Tribunal’s decision.  It held that:

  1. It was unnecessary and inappropriate to adopt an Article 8 construction of the 2006 Regulations where there had been no finding that, absent such a construction, there would be a contravention of SM’s Article 8 rights.
  2. SM was not a “family member” within the meaning of Article 2 of the Directive.  The EU legislator had left it to Member States to decide on the terms upon which adopted children would be recognised as direct descendants under Article 2 of the Directive.  It had done so in the expectation that the international obligations relating to the welfare of children (such as those contained in the UN Convention on the Rights of the Child and the Hague Convention on Inter-Country Adoption) would be respected.  The UK’s rules – which SM did not satisfy – were a reasonable and proportionate means of giving effect to its international obligations, and did not contravene EU law.
  3. SM was not an “other family member” under Article 3 of the Directive either.  The distinction between Articles 2 and 3 was not one of legal formality, but of the relative proximity of the individual to the EEA sponsor.  Moreover, since the purpose of the Directive (to strengthen and support the EU right of free movement) was distinct from the ECHR, the fact that SM enjoyed family life with her sponsor did not make her a “family member” for the purposes of EU law.

Ben Lask acted for the Entry Clearance Officer.

 

To read the full judgment please click here Entry Clearance Officer v SM (Algeria)

The application of Article 30 of the Judgments Regulation – Maxter Catheters SAS & Anor v Medicina Ltd [2015] EWHC 3076 (Comm)

The parties to this claim are all involved in the development, production and sale of medical devices . The breakdown of their business relationship gave rise to litigation in France and England.

The Commercial Court handed down judgment refusing the Defendant’s application to stay the English proceedings under Article 30 of Regulation (EU) No 1215/2012 (the Judgments Regulation). Having considered the English and European case-law in respect of the proper application of Article 30, Teare J concluded that the English Court was first seised and therefore had no jurisdiction to stay the action before it.

The Judge held that under the Judgment Regulations “the mere fact that the court in country A granted provisional relief will not mean that the court in country B where substantive proceedings were later commenced will be the court first seised. If the proceedings before the court in country A can, although they commenced with the grant of provisional relief, proceed to a determination of the substantive issue between the parties (as in an English action) then the court of country A can be regarded as the court first seised” (para 37). He also found that the Claimants’ proposed amendment to the Claim Form did not raise a “new claim” as it arose out of the same facts and matters and only added a further remedy.

 
Philip Moser QC and Nikolaus Grubeck (instructed by Greenberg Traurig Maher LLP) acting for the Claimants.

The judgment is available here.

Monckton announces trio of VAT seminars in November

Fixed Establishments and Welmory
4 November 2015, Goldsmiths Centre, 42 Britton Street, London EC1M 5AD
Registration from 6:00pm for a 6:30pm start | 1 CPD
Chaired by Melanie Hall QC
Speakers: Peter Mantle and Tarlochan Lall

Fiscal Neutrality
11th November 2015, Goldsmiths Centre, 42 Britton Street, London EC1M 5AD
Registration from 6:00pm for a 6:30pm start | 1 CPD
Chaired by Melanie Hall QC
Speakers: Paul Lasok QC and George Peretz QC

Economic Activity
18th November 2015, Goldsmiths Centre, 42 Britton Street, London EC1M 5AD
Registration from 6:00pm for a 6:30pm start | 1 CPD
Chaired by Paul Lasok QC
Speakers: George Peretz QC and Valentina Sloane

Reference to the Court of Justice of the EU in relation to Western Sahara

In a landmark decision, the High Court ruled that a legal claim being brought by the Western Sahara Campaign UK (WSCUK) against DEFRA and HMRC regarding trade agreements with Morocco should be heard in the Court of Justice of the European Union (CJEU).

The High Court has decided that it is necessary to refer a series of questions to the CJEU regarding the legality, under EU Law, of the EU – Morocco Association Agreement and the EU Morocco Fisheries Partnership Agreement. These questions relate, inter alia, to the compatibility of these agreements with public international law, to the extent that international law forms part of EU Law.

In giving judgment in the High Court, Mr. Justice Blake concluded that “there is an arguable case of a manifest error by the Commission in understanding and applying international law relevant to these agreements.”

Western Sahara, in north-west Africa, is the subject of a decades-long dispute between Morocco and the Saharawi people. In October 1975 the International Court of Justice rejected territorial claims over Western Sahara by Morocco and recognised the Saharawis’ right to self-determination. Morocco exercises effective control over most of the territory of Western Sahara. WSCUK claims that such control fails to respect the right of the people of Western Sahara to self determination under international law and is incompatible with certain other rules of international law.

Conor McCarthy, led by Kieron Beal QC, is acting for the Claimant in this matter. They were instructed by Leigh Day.

Please click here for the full judgment.