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.
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
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:
Ben Lask acted for the Entry Clearance Officer.
To read the full judgment please click here Entry Clearance Officer v SM (Algeria)
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.
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
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.
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
