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.

A unanimous Court of Appeal upheld the first instance decision which found that the detention policy used by British forces in Afghanistan was unlawful. The Court of Appeal also allowed Serdar Mohammed’s cross-appeal, ruling that his private law claim was not barred by the Crown act of state principle.

The judgment by the Lord Chief Justice, Lord Justice Lloyd Jones and Lord Justice Beatson held: “It is, as we have stated, a longstanding fundamental principle of common law that interference with personal liberty is unlawful unless the person responsible (here the Secretary of State) can show it is justified. In the particular circumstances of [Serdar Mohammed]’s case, there was no authority to detain either under the legal regime established by the United Nations or under the law of Afghanistan or under UK legislation.” The Court of Appeal further ruled that “procedural safeguards appropriate under international law for a non-international armed conflict were not put in place by the Secretary of State. … [Serdar Mohammed]’s detention was in any event made unlawful as a result of the failure to provide such procedural safeguards.”

Sample media coverage of the judgment includes:

The Guardian

The Independent

The Star

Just Security

Nikolaus Grubeck acted for Serdar Mohammed

 

Anneli Howard in conjunction with Informa CPDcast has published a podcast on Antritrust Damages Actions in the UK Courts and the impact of the new  European Damages Directive and the Consumer Rights Act 2015. The podcast lasts 30 mins and includes slides and a test, attracting 1 CPD point for solicitors and barristers

After completing the course you will:

• Understand the changes introduced by the new European Directive on Antitrust Damages Actions;
• Have an overview of the impact of the UK reforms in the Consumer Rights Act 2015;
• Be aware of when the UK will be required to implement the Directive;
• Understand the effects that the Directive will have on disclosure, establishing liability and limitation periods;
• Understand what constitutes the ‘passing-on’ defence and presumptions that apply to quantifying harm;
• Be aware of which courts in England and Wales have jurisdiction to hear claims for damages under the Directive;
• Appreciate the new powers of the Competition Appeal Tribunal for injunctive and collective relief;
• Know how the Directive benefits parties that settle damages claims;
• Understand the relative advantages and disadvantages for claimants and defendants from the new regime.

Monckton clients have been granted free access to the podcast for the rest of 2015. Please email marketing on marketing@monckton.com so that we can send you the voucher code. To take advantage of this offer:

1. Go to the course page http://bit.ly/1JOPiQL  – and click on the ‘Start this CPDcast Activity’ button located the bottom; and
2. After creating a free account (or logging into their existing account), enter the voucher code when prompted.

Please let us know if you find this facility useful and would like to suggest further topics for the future.

Ofcom has today issued a Statement of Objections to Royal Mail alleging that it abused its dominant position in the market in which it supplies letter delivery services to competing postal operators.

As the former monopoly supplier of letter post services in the UK, Royal Mail is obliged by regulatory conditions to offer rival postal operators access to its letter delivery network consisting of local delivery offices and postmen/women covering every address in the UK.  There are a number of rival operators that compete with Royal Mail by supplying bulk mail services to businesses sending large volumes of mail.  Such operators compete with Royal Mail in the ‘upstream’ market by collecting mail from their customers, sorting that mail, and transporting it to the localities where the end-recipients’ addresses are located.  However, they then rely on Royal Mail’s ‘downstream access’ service to deliver the mail to individual addresses.  Such competing operators hand over the mail to Royal Mail’s local delivery offices for delivery by Royal Mail postmen.

Ofcom’s investigation arises from a complaint made by rival operator Whistl (formerly known as TNT Post UK), which had planned to compete with Royal Mail in the downstream market and had already begun delivering to postcode areas in parts of London and other areas of the country, using its own uniformed posties.  Whistl remained reliant on Royal Mail’s downstream access for being able to deliver mail to other postcode areas.

In November 2013 and January 2014 Royal Mail announced certain changes to its prices and other terms and conditions on which it would offer its downstream access service.  Whistl considered that these changes were anti-competitive, being directed at responding to the threat of competition in letter delivery by making it unviable for Whistl, or any other postal operator in the upstream market, to compete with Royal Mail’s delivery network and offer customers ‘end-to-end’ letter delivery services.

The Statement of Objections sets out Ofcom’s provisional view that Royal Mail breached competition law by engaging in conduct that amounted to unlawful discrimination against postal operators competing with Royal Mail in letter delivery.  Specifically, the Statement of Objections alleges that the changes to Royal Mail’s wholesale prices for bulk mail delivery services contained a differential in pricing which meant that, in practice, higher access prices would be charged to access customers (i.e. rival operators) that competed with Royal Mail in delivery than to those access customers that did not.

Ofcom’s press release announcing the issue of the Statement of Objections (which has not yet been published) alleges that these higher access prices “would act as a strong disincentive against entry into the delivery market, further increasing barriers to expansion for postal operators seeking to compete with Royal Mail in this market, and leading to a potential distortion of competition against the interests of consumers”.

The Statement of Objections states the facts on which Ofcom relies; the objections it has raised; the actions it proposes to take; and its reasons for proposing to take those actions.  Royal Mail can now make representations to Ofcom, which Ofcom will consider before taking a final decision.

Monckton barrister Alan Bates is advising Whistl.

The High Court has today dismissed a challenge to energy regulator Ofgem’s decision to approve changes to the way electricity generators pay for access to the onshore electricity transmission system for Great Britain (the ‘national grid’).

The owners of the transmission system incur costs in investing in the transmission system in response to the demands placed on it. Those owners are entitled to recover their investment from transmission system users, who include power station operators and other generators. Generators pay charges, known as Transmission Network Use of System (TNUoS) charges in respect of their access to the system for transporting electricity.

Under the changes to the TNUoS charging methodology which Ofgem approved, a certain element of the TNUoS charges will be paid only by “conventional generators”, i.e. gas fired, nuclear and other generating plants that can be relied on to generate at times of peak electricity demand. “Intermittent generators”, such as wind and solar farms, are dependent on weather conditions for being able to generate. They would not have to pay the relevant element of the TNUoS charges. Ofgem considered that this difference in treatment between conventional, as compared with intermittent, generators reflected differences between those two classes of generators in terms of how generators’ requirements for transmission system access drive investments by the transmission owners in upgrading system capacity at particular locations.

RWE NPower challenged Ofgem’s decision, arguing that it was unjustifiably discriminatory and therefore contrary to the EU Electricity Directive (Directive 2003/54/EC). RWE also argued that Ofgem had misunderstood the concept of “cost-reflectivity” in the Directive. Further, RWE alleged that  the decision would give rise to unlawful State aid, including by undermining the factual basis on which the European Commission gave State aid approval for the ‘Renewables Obligation’ and other UK schemes for encouraging low carbon generation.

The judge (Mr Justice Lewis) has dismissed the claim in full.

Ofgem was represented by Monckton barristers Daniel Beard QC, Alan Bates and Daisy Mackersie.