The Court of Appeal has just handed down judgment in two appeals against orders of Mr Justice Peter Smith, in relation to the multi-billion pound damages claims that are presently being pursued against British Airways in the Chancery Division. The underlying claims relate to BA’s alleged involvement in a worldwide cartel in the air cargo sector, and follow a decision of the European Commission in 2010 (presently under appeal before the European courts) which found that BA and a number of other airlines had infringed Article 101 TFEU (and certain equivalent treaty provisions covering the EEA and Switzerland) by colluding on certain elements of the price of air cargo services. This has also attracted the attention of competition regulators throughout the world.

The Court of Appeal’s judgment concerns, on the one hand, the claimants’ reliance on the “economic torts” of unlawful means conspiracy and unlawful interference with trade (alongside their more conventional claims alleging an infringement of the European competition rules). BA sought to strike out the economic tort claims on the basis that the claimants could not show that BA had the requisite “intention to injure”, but that application was dismissed (with BA ordered to pay indemnity costs) by Peter Smith J on the basis, in particular, that it was premature to reach conclusion on BA’s intention prior to disclosure. The Court of Appeal allowed BA’s appeal, and in so doing gave consideration to the intention requirement as previously considered by the House of Lords in OBG v Allan and the Court of Appeal (in a similar, competition damages context) in Newson Holding Ltd v IMI plc. The effect of the Court of Appeal’s judgment (subject to any appeal to the Supreme Court) is that the claimants’ economic tort claims have been struck out.

The Court of Appeal also ruled on the question of whether Peter Smith J had been right to order disclosure to the Claimants of the full, unredacted version of the Commission’s Airfreight decision, albeit within the confines of a confidentiality ring. A number of airlines who are Part 20 Defendants in the claims against BA objected to that order. They did so in reliance on the ruling of the General Court of the European Union in the case of Pergan, which concerned the publication of findings of, or allusions to, liability which could not be challenged before the EU Courts, and the incompatibility of such publication with the presumption of innocence which is enshrined in European law. The Court of Appeal held that “Pergan protection” is absolute, meaning that the national court must afford the same protection which is afforded at EU level to the confidential version of the Commission’s decision, in the context of applications for disclosure by damages claimants (and that, even if there were some discretion on the part of the national court in considering whether to order disclosure of “Pergan materials”, Peter Smith J had failed to strike the right balance with his order for wholesale disclosure).

Jon Turner QC and Michael Armitage are representing BA in the air cargo litigation. Paul Harris QC, Ben Rayment and Anneliese Blackwood are acting for the claimants in the Emerald proceedings. Daniel Beard QC and Thomas Sebastian appeared for Singapore Airlines.

The judgment is available here.

On 8 October, Peter Oliver and Christopher Muttukumaru were keynote speakers at a conference in Dublin on the Legal Implications for Ireland of British exit from the EU. The meeting was hosted jointly by the Irish Society for European Law and the UK Association for European Law

The conference in Dublin was chaired by the Irish Foreign Ministry’s Legal Adviser. Apart from Peter and Christopher, the other keynote speaker was the former Ambassador of Ireland to The UK.

Christopher covered the UK Government’s aims in the imminent negotiation of a reformed relationship with the EU and offered a view on the UK’s prospects of success.

Peter covered the challenges inherent in negotiations  with the other Member States under Article 50, including the difficulty of completing a negotiation within two years.

An enthusiastic audience asked some searching questions, including on the impact of repealing the Human Rights Act, on the impact of a referendum whose result was to leave the EU on Scottish devolution and on the impact of Brexit on bilateral relations with Ireland.

Monckton Chambers has been named the Set winner of the EU and Competition law category, for the Bar section, in The Legal 500 United Kingdom Awards 2015.

The Set was also shortlisted for Chambers of the Year for Public Law.

In addition, Jon Turner QC was nominated for “Silk of the Year” for EU and Competition law, an award he won last year.

Generics (UK) Limited t/a Mylan v Warner-Lambert Company LLC & ors [2015] EWHC 2548 (Pat)

Warner-Lambert has claimed a second medical use patent for the drug Pregabalin for treatment of neuropathic pain. Pregabalin was previously patented as a treatment for epilepsy and generalised anxiety disorder.

A competitor, Mylan, sought revocation of the second use patent for insufficiency and lack of inventive step against Warner-Lambert (“the validity proceedings”). Another competitor, Actavis, launched a generic version of the drug under a “skinny label” (being one with only non-patented indications) and Warner-Lambert brought an action against Actavis (“the infringement proceedings”). Although Warner-Lambert was earlier refused an interim injunction, a third party, NHS England, had been ordered to issue guidance with the aim of ensuring that only Warner-Lambert’s Pregabalin product would be prescribed for neuropathic pain pending trial. The Secretary of State for Health intervened in the infringement proceedings.

Following back-to-back hearings of the validity and infringement proceedings, Arnold J held that the principal second use patent claims (pain and neuropathic pain) were invalid for insufficiency. Some subsidiary use claims were upheld as protected by the patent. Arnold J held further that Actavis had not infringed, and would not have infringed even if those principal claims had been valid.

Arnold J concluded with observations on the need for a system, whereby patentees who wanted their second medical use patents enforced provided NHS England with all the information and assistance to enable it to issue appropriate guidance as and when required and generic companies who wanted their interests protected would also cooperate with NHS England.

Philip Moser QC was one of the counsel for the Secretary of State in the infringement proceedings.

To read the full judgment please click here: Generics (UK) Limited ta Mylan v Warner-Lambert Company LLC & ors

The 2015 Chambers Bar Awards shortlist has been announced. Monckton Chambers has once again been nominated for ‘Set of the Year’ in Competition. Monckton has been nominated in this category for seven consecutive years, successfully winning the award five times.

Additionally, we are pleased to announce that Tim Ward QC has been nominated for ‘Silk of the Year’ along with Ronit Kreisberger for ‘Junior of the Year,’ in the Competition category. Gerry Facenna has also been nominated for ‘Junior of the Year,’ in the Environment/Planning category.

The results will be announced at Old Billingsgate on Tuesday 27th October.

The 2015 Chambers Bar Awards shortlist has been announced. Monckton Chambers has once again been nominated for ‘Set of the Year’ in Competition. Monckton has been nominated in this category for seven consecutive years, successfully winning the award five times.

Additionally, we are pleased to announce that Tim Ward QC has been nominated for ‘Silk of the Year’ along with Ronit Kreisberger for ‘Junior of the Year,’ in the Competition category. Gerry Facenna has also been nominated for ‘Junior of the Year,’ in the Environment/Planning category.

The results will be announced at Old Billingsgate on Tuesday 27th October.

On 6 August 2015, the Commercial Court granted Visa Europe’s application for a request to be made to the Commission, pursuant to Article 15 of Regulation 1/2003/EC. That provision enables national courts to ask the European Commission to cooperate by providing information that may be relevant for ongoing domestic antitrust proceedings.

This is the first time this provision has been used to request information other than (i) an opinion from the Commission or (ii) information that is part of a Commission case file in an Article 101 or 102 TFEU investigation. In this case Visa requested access to the data underlying the Commission’s Final Results of its Survey of merchants costs of processing cash and card payments published in March 2015. This data was gathered by the Commission’s consultants Deloitte from volunteer merchants who are not themselves under investigation for any competition law breach.

The claimants in the jointly case managed Commercial Court actions against Visa did not formally oppose Visa’s application, but raised concerns about the necessity and proportionality of the request as well as third party confidentiality concerns.

Hamblen J ordered that the request should be made on terms under which all third party data would be anonymised, and on the basis of a special confidentiality ring which will be set up specifically for this purpose.

Anneli Howard (instructed by Linklaters LLP) acted for the Applicants, Visa Europe a.o., the Third to Fifth Defendants in the claims.

Tim Ward QC and Rob Williams (instructed by Humphries Kerstetter) acted for the Tesco group of Claimants in the jointly case managed proceedings.

In a judgment on 25 August 2015 the High Court refused subject access claims brought under the Data Protection Act 1998 by two Burmese migrant workers facing capital charges in Thailand.

The two men are accused of killing two British tourists on a Thai island in 2014. They maintain their innocence and have raised concerns about the fairness of the proceedings and forced confessions allegedly obtained from them under torture. The Prosecution is seeking a death sentence if the men are convicted.

The Claimants sought access to a report prepared by the Metropolitan Police in respect of the investigation by the Thai authorities. The Metropolitan Police resisted disclosure on the basis that it had been required to give an assurance of confidentiality to the Royal Thai Police and had duly done so.

Mr Justice Green accepted the Claimants’ argument that determining the application under the Data Protection Act required him to balance the Claimants’ interests, including the right to life and the right to a fair trial, against the interests of the Metropolitan Police to maintain confidentiality in their cooperation with the Thai police. He held that he had to apply anxious scrutiny to this proportionality exercise but ultimately refused to order disclosure on the basis that there is nothing in the personal data – which only the Judge and the Metropolitan Police have seen – that would be of any real value to the Claimants in their ongoing criminal trial in Thailand.

Gerry Facenna, Julianne Kerr Morrison and Nikolaus Grubeck acted for the Claimants.
The judgment is available here.

Media coverage includes: BBC, The Guardian, Reuters.

 

 

 

Last October, Visa successfully obtained summary judgment from the Commercial Court in the interchange fees litigation, striking out over 30 years of potential damages sought by a group of 12 retailers, totalling over £500m. The retailers’ appeal against the ruling was heard before the Court of Appeal on 21/22 July.

The Court of Appeal judgment {[015] EWCA Civ 883 was handed down today, where the Chancellor confirmed the well-established Johnson “statement of claim test” regarding the application of s.32(1)(b) of the Limitation Act 1980 (whereby Claimants can extend the 6 year statutory limitation period). The test looks at whether there was sufficient material in the public domain, which the claimants were either aware of or could have reasonably discovered, in order for them to draft a prima facie case in a statement of claim.

The Court of Appeal confirmed that “relevant facts” in s.32(1)(b) are construed narrowly to include those necessary to complete the cause of action. It is not necessary for a claimant to know facts which might assist (i) in rebutting a potential defence (such as exemption under Article 101(3) TFEU), (ii) in strengthening the case evidentially, (iii) providing commercial considerations regarding the advantages or disadvantages in commencing proceedings or (iii) in quantifying loss. Such facts are not “relevant” for the purposes of s.32(1)(b)).

The Court of Appeal firmly rejected the appellants’ arguments that competition law damages claims are sui generis as a EU right such that they require a modification of the test. It also rejected the argument that the EU principles of effectiveness and full compensation and/or the forthcoming Damages Directive required a different interpretation to be applied to the Act.

On the facts, the Chancellor upheld Simon J’s ruling that the retailers had pleaded all the necessary ingredients for their cause of action in the particulars of claim, which had been signed by a statement of truth, and which could not be struck out. The retailers accepted that they had discovered no new facts since the start of the limitation period in 2007. Although the claimants argued that there were still some residual facts that remained unknown to them, the Court of Appeal held that those matters merely went to the strength of the case and did not go to critical parts of the cause of action, which had already been pleaded in sufficient detail.

The Court of Appeal did allow the appeal against the award of indemnity costs, holding that the weakness of the appellants’ case was not a justification on its own for an indemnity award.

The Appellants have sought permission to the Supreme Court.

Anneli Howard (instructed by Linklaters LLP) acted for the Applicants, Visa Europe a.o., the Third to Fifth Defendants in the claims, who took the lead in the application.

Please click here to read the Court of Appeal Judgment.

Societe Cooperative De Production Seafrance S.A. (Respondent) v The Competition and Markets Authority and another (Appellant)

The Supreme Court has granted permission for the Competition and Markets Authority to appeal the Court of Appeal of England and Wales’ decision in a case relating to a dispute over whether the acquisition by Eurotunnel of 3 out of Seafrance’s 4 ferries, together with certain other business assets, which were not trading at the time of the acquisition, amounted to an “enterprise” (i.e. “the activities or part of the activities of a business”) so as to give rise to a “relevant merger situation” over which the CMA had jurisdiction. The Court of Appeal refused permission to appeal.  The Supreme Court described the case as one of “particular public interest”.

Paul Harris QC and Ben Rayment were instructed by the CMA.

Daniel Beard QC and Rob Williams were instructed by the SCOP.