Michael Collins SC appointed to panel of Arbitrators of newly launched International Arbitration Centre in Astana, Kazakhstan

The International Arbitration Centre (IAC) in Astana began its operations on 1 January 2018 to provide an independent, economical and expeditious alternative to court litigation, operating to the highest international standards to resolve civil and commercial disputes in the Astana International Financial Centre (AIFC).

The IAC has its own panel of independent, highly qualified international arbitrators and mediators, drawn from a variety of jurisdictions.

Michael Collins SC (Ireland) is one of five arbitrators from the EU approved by Barbara Dohmann QC, the Chairman of the IAC in accordance with Article 55(1)(b) of the AIFC Arbitration Regulations 2017. The launch of the IAC is being celebrated in London this week with a reception at the Kazakhstan Embassy, hosted by Barbara Dohmann.

Court of Justice rules against the UK in gender reassignment case – MB v Secretary of State for Work and Pensions

In an important ruling issued today, the Court of Justice has held that, in requiring a transgender person to be unmarried in order to be recognised in her acquired gender for the purposes of claiming a state retirement pension (SRP), UK legislation gave rise to discrimination on grounds of sex, contrary to EU law. The case will now return to the Supreme Court to apply the ruling.

Prior to the legalisation of same sex marriage, the Gender Recognition Act 2004, which establishes a mechanism for the legal recognition of changes in gender, required a transgender person to be unmarried in order to be legally recognised in her acquired gender. Any pre-existing marriage therefore had to be annulled before a gender recognition certificate could be issued. As a result, a person who remained married to a person of the same sex as her acquired gender was prevented from claiming a SRP from the pensionable age for persons of that gender.

MB was a male-to-female transgender person who had been denied her SRP from the pensionable age for women on the basis that she remained married to her wife. Whilst the refusal was in accordance with domestic legislation, MB claimed that it was contrary to EU Directive 79/7/EEC on equal treatment in matters of social security. Whilst her claim was dismissed by both the Upper Tribunal and the Court of Appeal, the Supreme Court was divided on the point and referred the issue to the Court of Justice.

In today’s ruling, the Court of Justice has found in MB’s favour, holding that the relevant provisions of the 2004 Act gave rise to direct discrimination on grounds of sex. In particular, it found that Article 4(1) of the Directive precluded: “national legislation which requires a person who has changed gender not only to fulfil physical, social and psychological criteria but also to satisfy the condition of not being married to a person of the gender that he or she has acquired as a result of that change, in order to be able to claim a State retirement pension as from the statutory pensionable age applicable to persons of his or her acquired gender”.

The relevant provisions of the 2004 Act were amended in 2014, to reflect the legalisation of same sex marriage. The Court of Justice’s ruling will, however, be welcomed by the transgender community in the UK and may have significant wider implications for the rights of transgender people across the EU.

Ben Lask is acting for the Secretary of State for Work and Pensions.  The Court of Justice’s judgment can be read here.

This case has been covered by BBC News and The Guardian.

Please click here to read the news item on the Upper Tribunal ruling, and here for the news item on the Court of Appeal judgment.

Award of Lancashire Children’s Services Contract to Virgin Care Set Aside

Lancashire Care NHS Foundation Trust v Lancashire County Council [2018] EWHC 1589 (TCC)

The High Court (Mr Justice Stuart Smith) has today handed down a judgment setting aside the award of a contract for public health nursing services by Lancashire County Council to Virgin Care Services Limited.  The Court has upheld a challenge made by the Claimants, two local NHS Trusts, to the Council’s decision on the basis that the Council failed to give adequate or sufficient reasons for the scores it awarded to the two bidders in the evaluation. The Court held that:

“I am satisfied that the notes do not provide a full, transparent, or fair summary of the discussions that led to the consensus scores sufficient to enable the Trusts to defend their rights or the Court to discharge its supervisory jurisdiction.”

The Court held that the inadequacy of the reasons given by the Council was such that the Court was not able to determine whether the scores awarded by the Council contained manifest and material errors.  The Court did not accept certain other criticisms which the Trusts made of the conduct of the procurement.

The trial took place over 5 days concluding on 1 May 2018. The Judgment follows an earlier ruling of the High Court in February 2018 suspending the conclusion of the contract with Virgin pending trial – see link here.

Rob Williams acted for the successful Claimants throughout the proceedings, instructed by Hempsons.

A copy of the Judgment can be found here.

MPs’ arguments on revocability of Article 50 notice – petition refused by Court of Session in Edinburgh

Monckton Chambers’ Gerry Facenna QC and Anneli Howard provided pro bono assistance to Morag Ross QC (instructed by Bindmans and Harper Mcleod) representing Lib Dem Brexit Spokesperson Tom Brake MP and Labour’s Chris Leslie MP in their intervention before the Court of Session in Scotland to get a preliminary reference to the CJEU on whether the Article 50 notice could be unilaterally pulled back by the United Kingdom Government in the event of a unsatisfactory deal or no deal scenario.

Permission for judicial review had been initially refused but was granted on appeal by the Lord President of the Inner House in April 2018 ([2018] CHIH 18). The Court of Session in Edinburgh then went on to hear arguments on 22nd May 2018 regarding the petition for a preliminary reference on this “issue of great constitutional importance”. Judgment from the Court of Session was handed down by Lord Boyd on 5 June 2018, refusing to make the reference on the basis that it was hypothetical as the facts upon which the CJEU would be asked to give an answer had not occurred and could not be ascertained. The judgment can be read here.

Three new tenants for Monckton Chambers – Gregory Pipe, William Buck and William Hooper

Monckton Chambers welcomes three new members, Gregory Pipe, William Buck and William Hooper, who join from St Philips Stone Chambers along with Clerk Chris O’Brien.

Gregory Pipe (call 1995) is a heavy-weight commercial practitioner who is regularly instructed on complex high value disputes both in England & Wales and internationally. His practice covers a wide range of commercial disputes often involving company and property issues. He has a particularly wide experience in shareholder disputes and business sale disputes. In addition he has a particular interest in and ability to deal with lengthy and complex technology, software, hardware, telecoms and engineering disputes including those with a heavy scientific focus. Gregory is also instructed on high value arbitrations.

He is consistently recommended in both Legal 500 and Chambers & Partners:

If you want a lawyer who gets down to the minute detail on a contract case, he’s your man.Chambers & Partners, 2018

Very experienced in shareholder and business sale disputes.Legal 500, 2017

William Buck (call 2001) has a strong commercial practice covering a wide spectrum of high value disputes. As well as undertaking high value work in the Court of Appeal and the High Court of England and Wales, he has developed a substantial international practice, undertaking work in other jurisdictions, such as the Isle of Man, Spain, Germany and the USA. He has also successfully acted in a range of arbitrations and adjudications.He has been consistently recommended in both Legal 500 and Chambers and Partners as a leading commercial practitioner in his field:

He is good at analysing how particular pieces of a case come together and what you need to do to win.” “He is sensible and can bring humour to a case which endears him to judges.” – Chambers & Partners, 2018.

A very bright barrister with an analytical approach.” – Legal 500, 2017

William Hooper (call 2014) has a broad commercial litigation and arbitration practice. He has experience both led and unled in a wide range of commercial matters, including banking and finance, private equity, shipping and international trade, energy, civil and commercial fraud, project finance, offshore litigation, and private international law. He has acted in the High Court (Commercial Court and Chancery Division) and frequently in arbitration and recently appeared, as junior counsel, for the successful appellants in the Supreme Court, in The New Flamenco [2017] UKSC 43, the latest Supreme Court decision on mitigation of loss.

Chris O’Brien began clerking in 2006. Much of his career has been spent at a leading Chancery Commercial set. Chris’ primary focus is on Monckton Chambers Commercial practice area.

Philip Moser QC, joint Head of Chambers, comments on the positive development of three new members and an expanded clerks’ team: “We are delighted that Gregory Pipe, William Buck and William Hooper have decided that Monckton Chambers provides the right environment in which to develop further their impressive commercial litigation and arbitration practices. The fact that they bring with them an experienced Clerk, Chris O’Brien, means that they move as a fully proven team. We are delighted to welcome all four to Monckton Chambers. This new recruitment, shortly after that of former EFTA President Carl Baudenbacher as an arbitrator and door tenant, further complements Monckton’s growing commercial litigation and arbitration offering.”

Professor Panos Koutrakos was UK rapporteur at FIDE 2018

Professor Panos Koutrakos was national rapporteur for the UK at the FIDE (Fédération internationale pour le droit européen) 2018 conference in Estoril, Portugal on 23-26 May 2018.

Professor Koutrakos’s report was on the external dimension of EU policies and covered issues of international treaty-making, trade and protection of investments, and the area of freedom, security and justice (the report may be found here).

The biannual FIDE conference is the biggest EU law conference and brings together more than 500 academics, practitioners, and judges.

Members of Monckton Chambers submit evidence to House of Commons inquiry on Dispute Resolution in the Withdrawal Agreement

Carl Baudenbacher, Peter Oliver and Michael Bowsher QC made a joint submission to the House of Commons EU Scrutiny Committee in connection with their inquiry into Dispute Resolution and Enforcement in the Withdrawal Agreement. The submission is here.

The submission suggests that despite misgivings over the Court of Justice of the EU continuing to exercise jurisdiction in the EU after Brexit, this situation should be accepted for a short period. Apart from any other considerations, it is hard to see what other process can be put in place in the time available. The Court of Justice should only retain jurisdiction for a short time after the transitional period. The EFTA Court would then provide a sensible forum for resolution of the various disputes that will have to be addressed.

Flynn / Pfizer v CMA: the CMA misapplied the test for excessive pricing

The Competition Appeal Tribunal handed down a Judgment today setting aside parts of the CMA’s decision imposing combined fines on the pharmaceutical companies, Pfizer and Flynn, of around £90 million for charging unfairly high prices for the anti-epileptic drug, phenytoin sodium capsules, in breach of Article 102 TFEU / the Chapter II prohibition.

Although the Tribunal upheld the CMA’s findings that Pfizer / Flynn each occupied a dominant position in the relevant market, it struck down the findings of abuse on the basis that the CMA was wrong in law to confine its methodology for testing whether the drug prices were excessive to a purely “Cost Plus” approach. The Tribunal held that the correct approach, which the CMA should have but failed to adopt, was to identify a benchmark price or price range which would have applied in conditions of “normal and sufficiently effective competition”. In determining that benchmark price, the CMA should have given proper consideration to whether phenytoin sodium tablets – the prices of which were higher than the allegedly excessive prices for capsules – served as a meaningful price comparator. The CMA also erred in law in failing to have any regard to the benefit to patients of phenytoin capsules in determining their economic value.

The Tribunal has indicated that its provisional view is to remit the matter back to the CMA for further consideration, but has invited written submissions from the parties before coming to a final decision on remedy.

Mark Brealey QC acted for Pfizer.

Ronit Kreisberger acted for Flynn.

Click here for the full judgment.

Secretary of State announces decision and publishes CMA final report on Fox’s proposed acquisition of Sky

On 5 June 2018, the Secretary of State for Digital, Culture, Media and Sport published the final report of the Competition and Markets Authority (CMA) and announced his decision on the proposed acquisition by Fox of the remaining shares in Sky plc.

The CMA’s final report confirms its provisional finding that the transaction is not in the public interest due to media plurality concerns. The CMA concluded that the transaction may be expected to result in insufficient plurality of persons with control of media enterprises in the UK because it would lead to the Murdoch Family Trust (MFT), which owns 39% of Fox and News Corp, holding too great a degree of control over the diversity of viewpoints consumed by audiences in the UK, and would give the MFT too much influence over public opinion and the political agenda. The CMA also confirmed its provisional finding that there are no public interest concerns arising from lack of a genuine commitment to meeting broadcasting standards in the UK.

The CMA concluded that only prohibition or the divestiture of Sky News would provide an effective solution to the identified adverse public interest effects. Of these two options, the CMA recommended that the most effective and proportionate remedy would be the divestiture of Sky News to Disney or to another suitable upfront purchaser.

The Secretary of State has accepted the CMA’s findings and recommendations. Fox has written to the Secretary of State to offer undertakings on effectively the same terms as set out by the CMA in its final report. The Secretary of State has asked DCMS officials to begin immediate discussions with the parties to finalise the details of the undertakings with a view to agreeing an acceptable form of the remedy. The Secretary of State will then consult on the proposed undertakings.

Kassie Smith QC, Alistair Lindsay and Julian Gregory are advising the Secretary of State.

Rob Williams is advising the CMA. Conor McCarthy is also advising the CMA with their investigation.

George Peretz QC and Azeem Suterwalla are advising an interested party Avaaz.

Ronit Kreisberger – Joint Lead Counsel for European Commission Written Observations on MasterCard and Visa MIF claims

On 23 May, the European Commission published its Written Observations submitted under Article 15(3) of Regulation 1/2003 in the Appeals in the English Court of Appeal against the 3 first instance Judgments dealing with the claims against MasterCard and Visa for recovery of multilateral interchange fees (MIFs).

Article 15(3) provides that the Commission may, acting on its own initiative, submit written observations to national courts where the coherent application of Articles 101/102 so require. The Commission may also make oral observations with the permission of the court in question.

Given the significance of the UK Appeals in the context of the competition law analysis of MIFs, the Commission made Written Observations on the Article 101(1) issues (attached here) and the Article 101(3) issues (attached here). The Commission also made oral submissions, with the Court’s permission, on both topics at the hearing of the Appeals.

Ronit Kreisberger acted as Joint Lead Counsel with Nicholas Khan QC for the European Commission.