Edenred (Group UK) Limited v Her Majesty’s Treasury and others [2015] UKSC 45

The Supreme Court has today handed down judgment in the public procurement case of Edenred (Group UK) Limited v Her Majesty’s Treasury and others upholding the decision of Andrews J and the Court of Appeal’s decision, which had each also held in favour of the Government (read the first instance decision and the court of Appeal decision).

This was an appeal in the expedited Edenred proceedings on whether the way in which the Government’s flagship policy of Tax-Free Childcare (TFC) is to be delivered is lawful under domestic and EU public procurement legislation. It is the first case on the question of what constitutes a “material variation” of a public contract to reach the UK Supreme Court. It is also the first UK case to be decided under the new Public Contracts Regulations 2015 (SI 2015/102) (PCR 2015).

The operational and back office functions of NS&I, an executive agency of the Chancellor, are carried out under an outsourcing contract, currently held by Atos. That contract was procured in April 2014 and was not itself under challenge. TFC is to be delivered NS&I working with HMRC pursuant to s.16 of the Childcare Payments Act 2014 (CPA). To be able to do this NS&I has to use its outsourcing contract, modified to add the TFC services. A challenge to the Government-internal memorandum of understanding (MoU) between HMRC and NS&I (whereby it was argued that that MoU was itself a public contract) had failed below and was not pursued on appeal to the Supreme Court. The Appellants’ appeal focussed principally on their argument that the amendments required to the Atos outsourcing contract would be an impermissible material variation, being contrary to the CJEU’s pressetext case law and Regulation 72 PCR 2015.

Lord Hodge, with whom Lord Neuberger, Lord Mance, Lord Sumption and Lord Carnwath concurred, held that the amendments required to the outsourcing contract with Atos to include the TFC work will not amount to a material variation of that public contract as the modifications to the contract that enable NS&I to provide the TFC services will not “considerably extend” the scope of that contract in terms of regulation 72(8) PCR 2015 Regulations so that they do not involve “substantial” modifications under Regulation 72(1)(e) PCR 2015.

The Court distinguished Commission v Germany (C-160/08) [2010] ECR I-3713, Commission v France (C-340/02) [2004] ECR I-9845 and Commission v Spain (C-423/07) [2010] ECR I-3429 and held that the prohibition against modifying a contract to encompass services not initially covered does not prevent the extension of the contracted services beyond the level of services provided at the time of the initial contract if the advertised initial contract and related procurement documents envisaged such expansion of services, committed the economic operator to undertake them and required it to have the resources to do so.

The Supreme Court therefore held there was no breach of the Public Contracts Regulations or Article 56 TFEU.

The Court also inclined to the view that the amendments were further justified pursuant to “clear, precise and unequivocal” review clauses within the meaning of Regulation 72(1)(a) PCR 2015, but that the point was not acte clair. However, in view of the finding on Regulations 72(1)(e) and (8) (above) it was not necessary to decide the point and no reference to the CJEU was required.

An alternative argument that a separate public contract had been created between HMRC and NS&I by reason of s. 16 CPA was also dismissed by the Court.

 

Philip Moser QC, Ewan West and Anneliese Blackwood appeared on behalf of Her Majesty’s Treasury, Her Majesty’s Revenue and Customs and NS&I, instructed by the Government Legal Department.

Please click to read the full Edenred v HMTreasury Supreme Court judgment.

Conor McCarthy has been invited to serve as an independent expert on the issue of sanctions against parliamentarians in a hearing of the COE Parliamentary Assembly’s Committee on Rules of Procedure, Immunities and Institutional Affairs.

The hearing follows legal controversy regarding the imposition of sanctions on certain foreign MPs by both Russia and the European Union. These sanctions have included both travel bans and the freezing of assets.

Conor McCarthy has previously advised individuals and organizations as to the scope and effect of sanctions at under domestic, EU and international law.

On 24 June, Monckton Chambers held a highly topical, ground breaking seminar, chaired by Sir Stephen Laws, on the legal implications of UK exit from the European Union.

The seminar was attended by over 100 lawyers, drawn from City and other law firms, the UK and other Governments and many others.

At the European Council on 25 June, the Prime Minister began the process of seeking renegotiation of the terms of UK membership of the EU.

At the 24 June seminar, expert Monckton practitioners, in anticipation of the first step now taken by the Government ahead of an in-out referendum, had covered many subjects of considerable relevance.

So what lies ahead? The issues covered at the seminar included:

(A) the legal framework within which three of the Government’s key aims will be negotiated (dissociation from “ever closer union”, powers for national parliaments to “block” EU legislation and benefits tourism) and their prospects of success (Christopher Muttukumaru CB):

(B) key concerns in respect of migration and citizenship (Paul Lasok QC);

(C) the implications of enactment of a British Bill of Rights and of possible withdrawal from the ECHR (Ian Rogers QC);

(D) if the UK leaves the EU, what happens next in relation to Procurement Law, Competition Law and regulatory matters including EU cooperation in those fields (Philip Moser QC, George Peretz QC and Anneli Howard);

(E) if the UK leaves the EU, what happens next in relation to free movement of goods, including the merits and de-merits of possible successor arrangements to EU membership (Peter Oliver);

(F) the implications of treaty change and of referendums in other Member States for the overall UK timetable and the instability that will be caused in the interim (Peter Oliver & Christopher Muttukumaru CB).

A further, in-depth seminar will be run in the autumn, while we have our own ideas for the content of the autumn seminar, please do let us have your own suggestions too.

The Secretary of State for Health has instructed Ian Rogers QC and Julianne Kerr Morrison to defend four judicial review claims issued by the major tobacco manufacturers (British American Tobacco, Philip Morris, Imperial Tobacco and Japan Tobacco / Gallaher) challenging the standardised tobacco packaging laws (often described in media reports as “plain packaging”).

MPs voted in favour of the introduction of the measures by 367 to 113. The Standardised Packaging of Tobacco Products Regulations were made on 19 March 2015 and come into force on 20 May 2016.

Ian Rogers QC previously appeared for the Government in the successful defence of two earlier tobacco control measures:-

Sinclair Collis v Secretary of State for Health [2012] QB 394, CA (Lord Neuberger MR, Arden and Laws LJJ): on the proportionality test in the public health sphere, concerning the legislation banning the sale of tobacco from tobacco vending machines.

Imperial Tobacco, BAT, Philip Morris and Gallaher v Secretary of State for Health: a judicial review of the UK “Tobacco Display Ban” legislation which the claimants discontinued in 2012.

He also appeared for the United Kingdom in the EFTA Court in a case concerning the Norwegian tobacco display ban Philip Morris Norway v Norway, Case E-16/10.

 

Liberty and others v GCHQ and others [2015] UKIPTrib 13_77-H_2

In its third judgment in Liberty and others v GCHQ and others, the Investigatory Powers Tribunal has found that GCHQ violated the privacy rights of the Egyptian Initiative for Personal Rights and the South African Legal Resources Centre under Article 8 ECHR when it examined their email communications without following the required procedure.

Although the Tribunal previously found the legal framework governing GCHQ’s receipt of intercepted communications to have breached Article 8, it made no finding that any of the Claimants’ communications had actually been intercepted or read. Today’s ruling, by contrast, is a finding that GCHQ broke the law by reading emails of two human rights organisations based in Egypt and South Africa respectively.

This is the third IPT judgment in this case and has been widely reported in the media, including Sky News and The Guardian. The full judgment can be read here.

Eric Metcalfe acted for the Egyptian Initiative for Personal Rights and the Legal Resources Centre, together with Liberty, the American Civil Liberties Union, the Canadian Civil Liberties Association, the Hungarian Civil Liberties Union, and the Irish Council for Civil Liberties. The organisations brought a joint complaint against the UK intelligence services in 2013 following publication of documents leaked by former NSA contractor Edward Snowden.

 

Mrs Justice Rose has today handed down judgment on a preliminary issue in the ongoing copper fitting litigation.  The preliminary issue concerns section 1(4) of the Civil Liability (Contribution) Act 1978, which applies where the main claim against the contribution claimant (in this case, Travis Perkins’s claim against IMI) has settled.  Under section 1(4), the liability of the contribution claimant (IMI) to the main claimant (Travis Perkins) cannot be re-opened by the contribution defendant (Delta) if IMI have been liable “assuming that the factual basis of the claim against him could be established”.  Where the section applies, the contribution defendant (Delta) cannot deny liability to make a contribution on the basis that the contribution claimant (IMI) was never liable in the first place.

In the present case, Delta sought to resist IMI’s claim for contribution on the basis that the main claim against IMI by Travis Perkins was time barred.   Mrs Justice Rose rejected that argument, holding that, under section 1(4), Travis Perkins’ plea in Reply that the cartel was deliberately concealed is assumed to be true; as a result the limitation argument failed.  Mrs Justice Rose noted that the burden of proving deliberate concealment fell on Travis Perkins, and hence it was part of the factual basis of the main claim, which was assumed to be true.

The Judge however granted Delta permission to appeal, on the basis that the effect of section 1(4) merits consideration by the Court of Appeal.

Please click to view a copy of the IMI PLC & anr -v- Delta LTD & ors judgment.

Paul Harris QC and Rob Williams acted for the successful party IMI.

 

Stephen Cragg QC and Steve Broach acted for the Law Society of England and Wales  in this important case which considered the rights, to comply with Article 5 European Convention on Human Rights,  of incapacitated people to be formally involved as a “party” in proceedings in the Court of Protection which consider whether they can be deprived of their liberty. The Court of Appeal expressed the view that the President of the Court of Protection was wrong when he said that there would be circumstances in which the person concerned need not be joined to proceedings.

The Upper Tribunal has rejected an appeal by the Secretary of State for Work and Pensions against an award of compensation to a child who suffers from narcolepsy with cataplexy as the result of vaccination against swine flu.

Please click to view the Decision of the Upper Tribunal

The plight of a number of children who have suffered from narcolepsy as the result of vaccination against swine (or H1N1) flu has received considerable publicity, and was the subject of a Channel 4 documentary earlier this year (“The kids who can’t stay awake”, broadcast on 10 March).  As a result of irresistible, unpredictable and frequent sleep attacks, which are likely to last for the rest of their lives, the children affected suffer enormous disadvantage in their social and school lives: and, when they grow older, they will suffer even more disadvantage as they will find it very difficult to do examinations, drive, maintain relationships, or operate in many jobs.

The Department of Work and Pensions has accepted that the vaccination caused the narcolepsy experienced by these children. However, in response to claims for compensation under the Vaccine Damage Payments Act 1979 (which provides for an award of £120,000 to anyone suffering more than 60% disablement as a result of a vaccine), the DWP argued that the disablement caused was less than 60%.  It argued in particular that the 1979 Act meant that it was impermissible, in assessing the degree of disablement caused, to look at effects of the disablement in future: according to the DWP, it was wrong to look at the effects of narcolepsy on children’s lives as they grew older (e.g. making it impossible for them to sit public examinations or to drive).

In August 2014 the First-tier Tribunal (FTT) heard an appeal against the DWP’s decision rejecting a claim under the 1979 Act.  It allowed the appeal.   The DWP then appealed to the Upper Tribunal.

The Upper Tribunal agreed with the claimant and upheld the FTT’s decision.  In a careful analysis of the relevant – and rather complex – provisions, it accepted the claimant’s argument that the assessment of disablement under the relevant legislation required an assessment of its impact over the whole period that the disablement was likely to last – for a lifetime, in this case. Further, it accepted the claimant’s submission that the FTT was entitled to look at a scale for assessment of degree of disablement used for industrial injuries, noting that the DWP itself had done so in its written case to the FTT: even though industrial injuries such as loss of limbs were very different from narcolepsy, the comparison could bear some useful fruit.

The Upper Tribunal’s judgment is likely to set a precedent for other children suffering from narcolepsy as a result of H1N1 vaccination, by removing some the main arguments used by the DWP in rejecting their claims under the 1979 Act.

George Peretz QC was instructed by Hodge Jones & Allen, also acting pro bono: their press release with further information about the case is here.

This case has received various press coverage, including The Guardian.

The First-tier Tribunal has decided that motor homes were not “caravans” within the meaning of the VAT zero-rating provisions.  A motor home was different from a caravan in an important respect, the ability to move under its own power. That put motor homes outside the ordinary usage of the word “caravan” and the legislative context showed that self-propelled vehicles were not intended to be zero-rated.

Peter Mantle successfully represented HMRC.

Please click to view the full Oak Tree Motorhomes v HMRC judgment.

 

In a judgment delivered yesterday in R  Premier Foods v HMRC  (Q Cold ltd intervening) [2015] EWHC 1483 (Admin),  Supperstone J resolved a dispute as to how to unravel the consequences of a mistaken overpayment of VAT by a supplier which later became insolvent.  The facts were that Q Cold supplied Premier with suet and poppadoms.  It mistakenly treated the supplies (which were in fact zero-rated) as standard-rated and accounted for VAT on them: likewise Premier deducted input tax on the supplies.  The mistake was discovered and Q Cold made a claim under section 80 of VATA for repayment of the wrongly paid VAT: HMRC also issued assessments against Premier for the incorrectly deducted input VAT.  Since Q Cold and Premier agreed that Q Cold would pay the VAT recovered under section 80 to Premier, the net effect of all of this should have been that all parties would have been put back where they started.

However, before any repayments were made Q Cold became insolvent.  HMRC took the view, based on the judgment of the Inner House of the Court of Session (the equivalent of the Court of Appeal in Scotland) in CEC  v McMaster Stores (Scotland) Ltd (in receivership) [1995] STC 846, that they had to pay Q Cold’s section 80 claim notwithstanding its insolvency and that (as a result) Premier would only receive part of the section 80 claim (it being no more than an unsecured creditor of Q Cold).  Since Premier still had to pay the assessments, it would be left substantially out of pocket.  Premier challenged HMRC’s decision to pay Q Cold, and to maintain the assessments against it, by way of judicial review (there being no appeal to the First-tier Tribunal against those decisions under section 83 of VATA).  Q Cold’s liquidators, however, intervened in the judicial review to argue that HMRC were bound to pay Q Cold’s section 80 claim notwithstanding its insolvency.  HMRC took the view that there was much force in Premier’s arguments but that, given McMaster, there were arguments the other way: HMRC were concerned to obtain a decision of the Court that would bind all the parties in order to avoid any risk that HMRC would have to pay Q Cold while being unable to enforce the assessments against Premier (which would result in a tax loss).  Pending the judgment, they agreed not to pay Q Cold’s claim and not to enforce the assessments.

The Judge accepted Premier’s argument that McMaster was no longer good law in the light of Reemtsma [2008] STC 3448, where the ECJ held that a customer in Premier’s position must be able to address a request for reimbursement to the tax authorities if it bore the burden of VAT that had been incorrectly accounted for by its supplier but where it would be impossible or excessively difficult for it to recover against its supplier, for example due to insolvency.  In McMaster, the Court of Session had had to consider whether HMRC could invoke the defence of unjust enrichment in section 80(3) against McMaster on the basis that a only a very small part of the payment to McMaster would (because of its insolvency) go to the customers who had borne the VAT burden: the Court had held that they could not invoke that defence because the consequence of invoking that defence would be that the customers got nothing at all – and on that basis McMaster’s enrichment could not be described as unjust (it was better that the customer got half a loaf than no loaf)  However, Premier argued, after Reemtsma it would have a direct claim against HMRC: and so, it argued, the consequence of paying Q Cold’s section 80 claim had to be that Q Cold’s enrichment was unjust, as it would mean that Premier would only obtain a proportion of the overpaid VAT as opposed to full payment of VAT direct from HMRC (it would get half a loaf instead of a whole loaf).

The Judge therefore granted a declaration that HMRC had a section 80(3) defence to Q Cold’s section 80 claim and need not pay out on it.  He also quashed the assessments issued against Premier, HMRC having accepted that, if the Court decided that Q Cold had no good section 80 claim and that there would therefore be no tax loss to HMRC if they did not enforce the assessments, and where in the unusual circumstances of this case it was clear that Premier would have a Reemtsma claim offsetting any assessment raised against it, they would not be obliged to raise those assessments and, indeed, that there would be no point in doing so (given Premier’s offsetting Reemtsma claim).

Practitioners may want to note the following points: –

• This is a classic example of where judicial review plays a part in challenging HMRC decisions.  Premier could not appeal to the First-tier Tribunal against the decision to pay Q Cold , there being no appeal against a decision to pay another party’s claim even where that decision has a significant impact on one’s own position (it being common ground that HMRC could not be required to suffer a tax loss as a result of the unwinding of the mistake).  And since there was no doubt that Premier had incorrectly deducted input tax, it had no basis to appeal against its assessments to the First-tier Tribunal: its point was that HMRC should have used its powers not to issue the assessments even though tax was due (a point that could only be argued in judicial review).  Further, the use of the judicial review procedure meant that Q Cold could be joined as a party and was bound by the result.
• It was a critical element of the case that there was no dispute that the overpaid VAT was passed on in full: had Q Cold been able to argue that it had not passed the VAT on, it is less obvious that judicial review would have been the right way of resolving what then would have been a complex factual dispute.
• It is also worth noting that because the mistake related to zero-rating and not to exemption there was no issue that Q Cold had wrongly deducted input tax on its own supplies which had to be taken into account in any section 80 repayment (the key point about zero-rating being, of course, that a supplier is entitled to deduct standard-rated VAT on inputs while charging 0% VAT on outputs, while no input tax deduction is available in relation to exempt supplies).  So the present case was in that respect very different from Investment Trust Companies v HMRC [2015] EWCA Civ 82, where major issues flowed from the fact that where the mistake was to treat exempt supplies as standard rated, unravelling the mistake had to take into account the fact that the supplier had wrongly deducted input tax on its own inputs, thereby reducing the amount of its section 80 claim.

Valentina Sloane appeared for Premier; George Peretz QC appeared for HMRC