On 29 January, the Commission announced that it had concluded that the flood reinsurance scheme set up by sections 64ff of the Water Act 2014 is in line with EU State aid rules.  See http://europa.eu/rapid/press-release_IP-15-3884_en.htm.

The aim of the scheme is to ensure that owners of homes in England and Wales that are liable to flooding  have access to affordable buildings and contents insurance.  The scheme sets up an entity – to be known as Flood Re – that will have the duty to provide reinsurance to insurers for the flood risk element of buildings and contents insurance for all homes.  The amount that it charges for such reinsurance is to be set by reference to the council tax valuation of the home.  Insurers can then offer buildings and contents insurance to homeowners in vulnerable areas on the basis that they can obtain reinsurance at a set price against the flood risk element.  The scheme is to be funded by a compulsory levy paid by all insurers that offer buildings and contents insurance in England and Wales, with the amount paid by each insurer being proportional to the gross premiums received by the insurer on such policies.  The scheme administrator has power to raise additional levies, subject to Government approval.

The scheme is to last for 25 years (the relevant statutory provisions are subject to a “sunset clause” that automatically repeals them in 2039).  Flood Re is required to prepare transitional arrangements designed to move towards price-reflective insurance as homeowners and developers take steps to reduce vulnerability to flooding and to make homes more resilient against flood damage.

The Commission’s press release notes that the scheme is financed by the insurance industry.  But it nevertheless indicates that “Since Flood Re would be the only flood reinsurer benefitting from this levy, it could confer on it an economic advantage over its competitors and therefore constitute state aid within the meaning of EU rules.”  It is not therefore clear from the press release whether the Commission reached any concluded view on the question of whether there was aid.

In any event, the Commission concluded that (if there is aid) it is compatible with the common market.  It identified the lack of affordable home insurance in areas vulnerable to flooding as a market failure that the scheme would address.  The scheme is open on an equal basis to all insurers, minimising distortions of competition.  Finally, the Commission noted with approval the provisions designed to move the market slowly away from reliance on the scheme and towards risk-based insurance combined with measures to improve flood resilience.

The Flood Re scheme is of great importance to the insurance industry, housebuilders and to those with houses in areas vulnerable to flooding.  Critics will note that the cost of the scheme will be borne by those who live in homes not liable to flooding, as the levy is likely to be passed on in higher premiums.  But they will to some extent be reassured by the measures being taken to ensure that in the long run insurance premiums become risk-reflective.

George Peretz and Alan Bates have advised on State aid issues arising out of the Flood Re scheme.

The Supreme Court has today dismissed an appeal to sue the police for negligence, by the family of a woman murdered after a 999 delay. The Court also dismissed a cross-appeal by Gwent and South Wales Police and ruled that the claimant’s case in relation to breach of the right to life under Article 2, ECHR must proceed to trial.

Joanna Michael dialled 999 twice during an attack by her boyfriend, before she was stabbed to death in 2009. The Independent Police Complaints Commission (IPCC) found she was failed by South Wales and Gwent Police.

The Supreme Court rejected the arguments put forward by Ms Michael’s family that the police owe a duty of care in negligence where: (i) they are aware or ought reasonably to be aware of a threat to the life or physical safety of an identifiable person, or member of an identifiable small group (“Interveners’ Liability Principle”); or alternatively, (ii) a member of the public gives the police apparently credible evidence that a third party, whose identity and whereabouts are known, presents a specific and imminent threat to his life or physical safety (“Lord Bingham’s Liability Principle”).

 The Court, however, found that South Wales Police and Gwent Police had a case to answer in relation to Article 2, ECHR.

This judgment has received various press coverage, including BBC and the Telegraph.

Please click to view the full press summary in Michael and others (Appellants) v The Chief Constable of South Wales Police and another (Respondents) [2015] UKSC 2.

Please click here to view the full judgment.

Conor McCarthy acted for Cymorth i Ferched Cymru (Welsh Women’s Aid), led by Caoilfhionn Gallagher and instructed by Hopkin, Murray, Beskine Solicitors).

Goldsmiths Centre, 42 Britton St, London EC1M 5AD

Thursday 19 March 2015 | 9.30am Registration for 10am start

The Care Act 2014 is the most significant change to the legal landscape for adult social care since the welfare state was established. With the Act coming into force on 1 April 2014, it is vital that lawyers and practitioners have a clear understanding of its central provisions. This full-day training course, delivered by leading community care barristers at Monckton Chambers, will survey the whole of Part 1 of the Act and the new duties in relation to care and support that it introduces. Key questions to be covered include:

• The well-being principle – a game changer in the approach to adult social care?
• The new national eligibility framework – will more disabled people now be eligible for care and support?
• Support for carers – are carer’s rights now meaningful for the first time?
• Safeguarding – will the new framework keep people safe while respecting rights?
• Advocacy – will the new right to advocacy make sure disabled people’s voices are heard?

The training will be delivered by Ian Wise QC and Steve Broach. Ian and Steve are both highly ranked in the legal directories as specialists in adult social care. They acted together for the Claimant in R (KM) v Cambridgeshire CC, the first time that the Supreme Court considered the previous adult social care law. Both Ian and Steve have extensive experience of delivering training that makes complex areas of law accessible to lawyers and non-lawyers.

Please click to download the Care Act Training flyer.

 

In response to  criticisms of the Chilcot Inquiry, the Guardian has today published a letter from Christopher Muttukumaru about the three key factors which public inquiries must follow when preparing their final reports (“Key factors compound Chilcot inquiry delay”). In the letter, Christopher questions whether the criticisms of Chilcot are well founded.

Christopher, formerly Secretary to the Scott Inquiry, has expertise in the handling of public inquiries. He has given a number of lectures on inquiry procedures.

Please click here to view the full article.

Chambers is delighted to announce new appointments to the Panels of Junior Counsel to the Crown. Eric Metcalfe, Tarlochan Lall and Julianne Kerr Morrison have been appointed to the C Panel as from 2nd March 2015.

Monckton Chambers now boasts 20 panellists. The appointments are a great honour and acknowledge our expertise in public, civil and European Community law litigation.

Judgment was handed down this morning in the case of Edenred (UK Group) Ltd v (1) Her Majesty’s Treasury (2) Her Majesty’s Commissioners for Revenue and Customs and (3) National Savings and Investments.

The claimant, a provider of childcare vouchers, sought to challenge the Government’s proposed delivery of its flagship policy for Tax Free Childcare (“TFC”), introduced in the 2013 Budget.

Having undertaken extensive consultation, the Government had decided that TFC should be delivered by HMRC working in partnership with NS&I, with services delivered by NS&I’s delivery partner Atos IT UK Limited under a contract entered into in April 2014 following a competitive procurement.

Edenred (a member of the Computer Voucher Providers’ Association) challenged that decision on the basis that the arrangements between HMRC and NS&I constituted an untendered public contract and that the amendment to NS&I’s contract with Atos to provide services in support of TFC constituted a material variation of that contract.

Both allegations were comprehensively dismissed by Andrews J.  A case-note will follow shortly.

Please click to view the full Edenred v HM Treasury judgment

Philip Moser QC, Ewan West and Anneliese Blackwood (instructed by the Treasury Solicitor) acted for the Defendants

 

Chambers is delighted to announce new appointments to the Panels of Junior Counsel to the Crown. Eric Metcalfe, Tarlochan Lall and Julianne Kerr Morrison have been appointed to the C Panel as from 2nd March 2015.

Monckton Chambers now boasts 20 panellists. The appointments are a great honour and acknowledge our expertise in public, civil and European Community law litigation.

George Peretz and Meredith Pickford have been featured in an article on GCR regarding their appointments to Queen’s Counsel.

The article notes:

“Competition specialists George Peretz and Meredith Pickford of Monckton Chambers have been appointed Queen’s Counsel (QC), thereby joining the elite of barristers in England and Wales….

The appointments also underline Monckton’s status as one of, if not the leading set for competition law in the UK. Of 60 barristers in total, 40 work in competition law, including 10 QCs.”

George and Meredith will officially take silk in a swearing in ceremony on 16^th February 2015.

 

Monckton Chambers has been listed for 5 cases in The Lawyer’s Top 20 Cases of 2015. The 5 cases featured are:

• AXA & Ors v Competition & Markets Authority (CMA)

featuring Kassie Smith QC, Rob Williams, Robert Palmer and Brendan McGurk for the defendant, the Competition and Markets Authority, Ronit Kreisberger for The London Clinic, Josh Holmes for HCA and Anneli Howard for the Association of Anaesthetists of Great Britain and Ireland

 

• OJSC Rosneft Oil Company v 1) Her Majesty’s Treasury 2) The Secretary of State for Business, Innovation, and Skills 3) The Financial Conduct Authority

featuring Tim Ward QC, Gerry Facenna and Julianne Kerr Morrison for for the first and second defendants, the Treasury and the Secretary of State

 

• Abdul-Hakim Belhaj & Ors v (1) Security Service (2) Secret Intelligence Service (3) Government Communication Headquarters (4) Secretary of State for the Home Department and (5) Secretary of State for Foreign & Commonwealth Affairs

featuring Conor McCarthy for the claimants, Abdul-Hakim Belhaj and Ors

 

• Street Map v Google / Foundem v Google

featuring Jon Turner QC and Josh Holmes for  the defendant, Google

 

• Ecotricity Group Ltd & The Electric Highway Company Ltd v Tesla Motors Inc & Tesla Motors Netherlands BV

featuring Paul Harris QC and Ronit Kreisberger for the defendants, Tesla Motors Inc & Tesla Motors Netherlands BV

The High Court today handed down judgment in a case brought by two German companies, Ordanduu and Optimus Mobile, against PhonepayPlus, the UK regulator for premium rate telephone services. Mr Justice Supperstone allowed the claim for judicial review and found that PhonepayPlus’ actions amounted to a sufficiently serious breach of EU law to justify an award of Francovich damages, transferring the claim to the Queen’s Bench Division for issues of causation and quantification to be determined.

The claim arose out of a series of “Emergency Procedure” investigations instigated by PhonepayPlus in July 2013 under paragraph 4.5 of its Code of Practice. The investigations followed identification by PhonepayPlus of a website using a form of malware to lock consumers’ internet browsers in an attempt to generate affiliate advertising revenue. The investigations resulted in financial and other sanctions being imposed on a number of companies, including the Claimants and several others located in other EU Member States. The Claimants challenged PhonepayPlus’ actions as being contrary to EU law and procedurally unfair.

The Judgment contains a number of findings of significance to PhonepayPlus’ procedures and its jurisdiction to regulate providers in other EU Member States.

On procedural fairness the Court found that there was no good reason for PhonepayPlus failing to offer the Claimants an opportunity to make representations before it implemented the Emergency Procedure and suspended the Claimants’ services. The Judge held that the PhonepayPlus Executive was subject to an obligation to give full and frank disclosure when seeking authorisation for the Emergency Procedure from its Code Compliance Panel, which it did not satisfy in this case. He also found that throughout the subsequent review process the PhonepayPlus Tribunal had wrongly placed the burden of proof on the Claimants to establish that there was no risk of harm to consumers, had applied the wrong standard of proof under EU law, and had failed to discharge the burden of showing that there was a risk of potential harm to consumers from the Claimants’ services.

On proportionality, the Judge concluded that the measures taken were disproportionate, in particular because a less restrictive method could have been adopted and the measures did not attain a fair balance of means and ends, including because the Claimants were not given an opportunity to make representations and because it was inappropriate to suspend the whole of the Claimants’ UK business and freeze their revenues in circumstances where there was no evidence of actual harm to any consumer and the malware did not affect the Claimants’ existing customers.

Of potentially wider significance is the Judge’s conclusion that it was not appropriate to accord a wide margin of discretion to the regulator’s judgment given: (i) the strict terms of the E-Commerce Directive; (ii) the fact that the Code Compliance Panel did not direct their mind to the correct legal test or proper basis on which their judgment should be exercised; and (iii) because the Panel were not experts with expertise in relation to premium rate services or affiliate marketing and its perils.

On EU law the Court found that PhonepayPlus’ actions were unlawful under Article 3 of the E-Commerce Directive, in particular because the measures were disproportionate. This was, in the Judge’s view, a sufficiently serious breach of EU law to satisfy the Francovich test for the award of damages. This was the case, in particular, because: (i) the PhonepayPlus Executive was aware of the Directive but did not inform the Panel or the Tribunal of its existence and relevance, as a result of which the Claimants were treated as if they were UK businesses; (ii) disproportionate restrictions were imposed, and (iii) PhonepayPlus’ communication with the European Commission contained material inaccuracies and omissions.

The Judge therefore allowed the claim, quashing the decisions, ordering repayment of penalties and charges with interest, awarding the Claimants’ their costs of the proceedings, and transferring the claim to the Queen’s Bench Division for issues of causation and quantification of damages to be determined. The Judge refused PhonepayPlus permission to appeal to the Court of Appeal.

A copy of the judgment is here. A more detailed case note will be prepared and uploaded here in due course.

Gerry Facenna acted for the Claimants, Ordanduu GmbH and Optimus Mobile GmbH. Tim Ward QC acted for the Defendant, PhonepayPlus.