Delaney v Secretary of State for Transport [2015] EWCA Civ 172

In a unanimous ruling, the Court of Appeal this morning dismissed the Secretary of State’s appeal against the award of Francovich damages in respect of the UK’s failure to implement correctly the Second Motor Insurance Directive.

In June 2014, Mr Justice Jay held that the Department of Transport’s decision to agree a new ‘crime exception’ in the Uninsured Drivers’ Agreement 1999 was contrary to the UK’s obligations under the Second Directive. The Court went on to find that the UK’s breach was sufficiently serious to warrant the payment of Francovich damages to Mr Delaney, who had been seriously injured following a collision in which he was a passenger in 2006.

In the Court of Appeal, Lords Justices Richards, Sales and Kitchin unanimously dismissed the Secretary of State’s appeal.

Delivering the lead judgment, Lord Justice Richards expressed “no hesitation” in dismissing the Secretary of State’s submissions that the Second Directive provided any discretion for the UK government to introduce additional exceptions, noting that “the aim of protecting victims … is stated repeatedly in the directives and suffuses the reasoning of the Court of Justice in the case-law.” On the issue of whether the government’s breach of the Directive had been sufficiently serious, the Court of Appeal agreed with Mr Justice Jay that this was “a case where the Member State had little or no relevant discretion”, and agreed with his conclusion that the government’s breach had been sufficiently serious to warrant the payment of damages.

Permission to appeal to the Supreme Court was refused.

Philip Moser QC and Eric Metcalfe, instructed by Bakers Personal Injury Solicitors, acted for Mr Delaney.

Click to read the full Delaney v Secretary of State for Transport judgment.

Anneli Howard has had an article published in the Journal of European Competition Law & Practice on the new disclosure regime envisaged under Directive 104/2014.  She considers how this is likely to interact with access to copies of confidential and non-confidential versions of Commission decisions for the purpose of damages proceedings. The article discusses the implications of the EU rulings in Pergan, Pilkington and AKSO for the Pfleiderer test and how that position compares with the EU Commission in its recent MasterCard opinion. It then discusses the recent approach adopted by the High Court in the Air Cargo litigation and what influence that ruling could have for judges in other Member States, when they come to exercise their discretion in balancing the parties’ competing interests.

Disclosure of Infringement Decisions in Competition Damages Proceedings: How the UK Courts Are Leading the Way Ahead of the Damages Directive was featured in the March edition of the journal.

Please click here to view the article.

This week saw the conclusion of a long-running judicial claim by Mr O, an Ethiopian national, against the Secretary of State for International Development. Ethiopia is one of the largest recipients of UK development aid, and receives more than £300 million of aid from the UK government. A large proportion of this aid contributed to the so-called “Protection of Basic Services” (PBS) Programme, coordinated by the World Bank.

Underlying the case brought by Mr O, a subsistence farmer who had been forced from his land, was the contention that UK aid for the PBS programme was linked to human rights abuses by the Ethiopian government. His claim concerned the adequacy of the process by which the Department for International Development (DfID) assessed Ethiopia’s compliance with its human rights obligations – a pre-condition for receiving British aid money. Permission to apply for judicial review was granted by Warby J in July 2014. Mr O thereafter sought specific disclosure of key documentation on the assessments carried out by DfID.

On 26 February 2015, shortly before the disclosure application was due to be heard, DfID announced that it would be ending all funding to the PBS programme. On the day of the hearing DfID then confirmed that the funding had been cut “as a result of ongoing concerns related to civil and political rights” in Ethiopia. In light of this decision, Mr O agreed to withdraw his claim.

The case marks an important development in ensuring accountability over UK aid.

Nikolaus Grubeck and Michael Armitage (instructed by Leigh Day) acted for Mr O.

Please click to view the Human Rights Watch press release.

This case has been featured in various press, including the Guardian.

 

Philip Moser QC has been featured in an article in World ECR.

Philip is quoted in the article ‘Sanctions in their sights: UK bar gets busy’ regarding sanctions related instructions at the Bar.

Please click to download the full World ECR article.

 

Monckton Chambers has been listed as a “leading chambers” in the Who’s Who Legal: UK Bar 2015, with total of 31 member listings.

Members were listed in Competition, Media & Entertainment, Public Procurement, Sport and Telecoms as “leaders in their field.”

“The set is home to some of the country’s most respected and established practitioners who are at the forefront of key commercial and public areas of law. Its 31 listings, and its leading position in three distinct practice areas in our research, typify Monckton Chambers’ pre-eminent status in the UK Bar.” 

The following members were listed:

Competition: Paul Lasok QC, David Unterhalter SC, Jon Turner QC, Tim Ward QC, Paul Harris QC, Daniel Beard QC, Meredith Pickford QC, Alistair Lindsay, Josh Holmes, Ronit Kreisberger, Rob Williams, Anneli Howard,  Alison Berridge

Media & Entertainment: Paul Harris QC

Public Procurement: Paul Lasok QC, Michael Bowsher QC, Philip Moser QC, Valentina Sloane, Rob Williams, Ewan West

Sport: Paul Harris QC, Fiona Banks

Telecoms: Jon Turner QC, Tim Ward QC, Daniel Beard QC, Meredith Pickford QC, Josh Holmes, Robert Palmer, Anneli Howard, Ben Lask, Stefan Kuppen

Further, the following members were listed as “most highly regarded” in their fields:

Competition: Jon Turner QC, Daniel Beard QC, Josh Holmes

Public Procurement: Michael Bowsher QC, Valentina Sloane, Rob Williams

Telecoms: Tim Ward QC, Daniel Beard QC, Robert Palmer

 

The article reads as follows:

Monckton Chambers has a history stretching back to the early 20th century, a large membership including 14 QCs, and expertise across a wide area of commercial and civil law. In particular, its barristers are immensely knowledgeable in competition, EU law, and other public and regulatory areas. The set is also commendable for striking an excellent balance between established silks and talented juniors.

Competition law is the essence of Monckton Chambers. Indeed, we have listed six silks and seven juniors, attesting to its leading reputation. Standout barristers in this field include Daniel Beard QC, who is immensely popular among solicitors for being “tremendously bright” and “strategically astute”. Jon Turner QC is “one of the stars at the bar” and “knowledgeable beyond measure”. The “fantastic” Tim Ward QC receives substantial praise in this area for his “unsurpassed expertise” and “user-friendly approach”. Meredith Pickford QC is “acclaimed” by many; he is marked out by his tenacity in the courtroom and his “renowned” source of economic knowledge. Prominent juniors include the “impressive” Josh Holmes, who wins numerous fans for being “clear”, “articulate” and “a talented advocate”. Alistair Lindsay is “phenomenally able” and widely seen as an “intelligent and sophisticated advocate”.

The chambers’ brilliance in EU, regulatory and competition law gives it an edge in the telecommunications sector; with three silks and six juniors, Monckton has the deepest bench of leading telecoms specialists in our research. Jon Turner QC is “one of the sector’s top legal minds”, acting for companies at every court level. Tim Ward QC has “extensive experience” before the Competition Appeal Tribunal and is a valuable asset to his telecoms clients; he is “easy to work with” and a “fantastic presence in court”. Meredith Pickford QC is also “first choice” in this field for a number of respondents, who are impressed with his “supreme technical and commercial expertise”. Prominent juniors include Anneli Howard, who is a “talented telecoms lawyer as well as a great competition lawyer”. She is described as “practical and intelligent” and is “prized by those who work with her”. The “excellent” Robert Palmer is another key player in this industry, one solicitor noted that he was “practical and clear in his advice both verbally and in writing. He has been able to flag important issues beyond the immediate scope of instruction”.

Monckton’s strong foundation in EU and public law has also given it an advantage with regard to public procurement. In this rapidly developing area of public law, the set has the strongest presence in our research with three silks and three juniors. They provide suppliers, contracting authorities and utilities with an “exceptional” service, from non-contentious advice during the tender process to representation in highly complex litigation. Among them is Michael Bowsher QC, one of the first barristers to cultivate a procurement specialism and “the indisputable authority in procurement law”. Paul Lasok QC is a senior silk with a “deep understanding of EU case law” that he has utilised to form a “top-notch” procurement practice. Monckton’s leading juniors include Rob Williams, who “applies creativity and a meticulous work ethic to great effect”. He is regularly consulted by the public and private sector on complex procurement issues. Valentina Sloane is widely regarded as both “strong and intelligent” and someone who “inspires confidence”.

Please click to view the full article.

Recall Support Services & ors (Appellants) v Secretary of State for Culture Media & Sport (Respondent)

By Order dated 24 February 2015 the Supreme Court has refused the application made on behalf of a group of GSM Gateway operators for permission to appeal against the Court of Appeal’s decision in this Francovich damages claims for over £400million (see Court of Appeal Recall Support Services v Secretary of State for Culture Media & Sport).

Daniel Beard QC, Philip Moser QC and Brendan McGurk acted for the Respondent.

Mrs Justice Thirlwall has today handed down judgment in a case in which a transsexual person applied for a declaration that the Gender Recognition Act 2004 (“GRA”) was incompatible with Articles 8 and 14 of the European Convention on Human Rights. The GRA was, of course, the very Act that was implemented in order to ensure convention-compliant treatment of transsexual persons in the UK. More particularly, the applicant, who had undergone gender reassignment surgery, contended that the additional evidential burden faced by those seeking the grant of a gender recognition certificate further to such treatment were unnecessary, humiliating and disproportionate. The applicant pointed to the fact that a gender recognition certificate could be obtained simply by demonstrating that, amongst other things, he or she had lived in the acquired gender for two years. The Court rejected the argument that there were any additional evidential hurdles or that Article 8, whether on its own or in conjunction with Article 14, was interfered with by the requirements imposed by s.3 of the Act. The Court did, however, find that being a post-operative transsexual person did constitute an “other status” for the purposes of Article 14.

Please click to view the judgment in Carpenter v Secretary of State for Justice

Brendan McGurk acted on behalf of the Secretary of State for Justice

 

The majority of the public procurement provisions in The Public Contracts Regulations 2015 come into force today, 26 February 2015. A link to the text is [here]. They implement the EU’s 2014 Public Sector Procurement Directive (see previous news item: [here]). The new provisions now in force apply to procurements started on or after today’s date.

This will affect in substance all public contracts, only certain new rules (e.g. e-procurement) will not be implemented until as late as 2018.

Separate Regulations will be made for Scotland, where the existing rules continue to apply for the time being.

 

The CMA today scored a third Court of Appeal victory in the long running battle over Ryanair’s stake in rival airline, Aer Lingus.

Since the CMA first opened its investigation in 2010, Ryanair has brought a series of challenges, first to the investigation itself (alleging the CMA had no jurisdiction), and later to the CMA’s final decision, which required Ryanair to reduce its stake to 5%.

The Court of Appeal today held:

• That the CMA’s procedure had been fair, and that Ryanair had had the opportunity to respond fully to the case affecting it;
• That the CMA was entitled to impose a remedy which removed the realistic possibility of a substantial lessening of competition (rather than merely making an SLC less than probable); and
• That requiring divestiture of the shareholding did not conflict with any (hypothetical) future decision of the European Commission to allow Ryanair to make a bid for Aer Lingus.

Daniel Beard QC, Rob Williams and Alison Berridge represented the CMA.

Please click to view the judgment in Ryanair Holdings plc v Competition and Markets Authority

The High Court has quashed Winchester City Council’s decision to adopt an updated scheme for a £165 million redevelopment of the Silver Hill area, in the heart of Winchester city centre. The judicial review challenge had been brought by Kim Gottlieb, himself a Winchester city councillor, against his own local authority. Mr Gottlieb is the leader of the Winchester Deserves Better campaign against the development.

The original 2004 Development Agreement pre-dated the ECJ’s landmark judgment in the Auroux v Roanne case, with the result that no procurement exercise had been conducted at the outset. The Council decided in 2014 to authorise variations to it to allow the current developer, Henderson Global Investors, to abandon a requirement of 35% affordable housing, and to replace a requirement for a bus station and various civic uses with additional retail space, including a new department store, which had not been part of the original scheme.

Mrs Justice Lang, applying the ECJ’s decision in Pressetext, held that the decision was unlawful in the absence of a fresh procurement exercise. The Council’s decision to vary the original Development Agreement showed its intention to renegotiate its essential terms and to change the economic balance of the contract in favour of the developer.

The case is notable for the finding that where the court is considering a development contract or concession contract, the commercial value will be judged by the potential profits to be obtained from third parties, not just the awarding authority: the financial terms between the parties are not the only consideration. The judge also distinguished the approach of Mrs Justice Andrews in the recent case of Edenred (UK Group) Ltd v HM Treasury [2015] EWHC 90 (QB), who had held that variations to a contract would not be material for the purposes of the Pressetext test unless the evidence demonstrated that “there would be someone else who would have been ready, willing and able to bid, who would have wished to have done so if the opportunity had been made clear, but who did not do so because it was not.” In the present case, where there had never been any previous tendering exercise, the Claimant could not identify any actual or potential bidders who had been deterred or disadvantaged. Lang J held that that was not a prerequisite. The Claimant had satisfied the court that, on the balance of probabilities, a realistic hypothetical bidder would have applied, had the scheme been advertised on the new terms. The Claimant was not required to identify actual potential bidders.

The Council also argued that no relief should be granted to Mr Gottlieb, since he was not an economic operator with an interest in the operation of procurement law. Lang J rejected that argument, and quashed the decision to authorise the variations.

Robert Palmer acted for the Claimant, Mr Gottlieb, instructed by Dentons UKMEA LLP.

A link to the judgment is here. 

This judgment has received the following press coverage:

• ITV 
• BBC