The Department for Culture Media and Sport has successfully defended an appeal brought by six GSM Gateway operators in the Court of Appeal. The claimants had brought Francovich damages claims for over £400million, alleging that the UK’s restriction on the commercial use of GSM Gateways was incompatible with, in particular, the EU Authorisation Directive. Mrs Justice Rose had found against the claimants in a decision that can be found here Recall Support Services v Secretary of State for Culture Media Sport. She held that DCMS was justified in relying on public security concerns in imposing and maintaining the restriction for multi-user commercial gateways (COMUGs), albeit not in relation to one minor issue on single-user commercial gateways (COSUGs). In relation to all GSM Gateways Rose J also found that there was either no or no sufficiently serious breach of EU law in any event and dismissed all claims.

The Claimants appealed on the basis that the High Court had erred in its interpretation of Article 5 of the Authorisation Directive which they contended did not permit the UK to maintain the commercial use restriction on grounds of public security. They further contended that the UK had not laid a proper basis in domestic law to entitle the UK to restrict the rights conferred on Gateway operators. Also, that such breach was sufficiently serious to justify damages.

Richards LJ, giving the leading decision of the Court of Appeal, rejected each of the grounds of appeal and upheld the judgment of Rose J in full. Thus, the Court of Appeal has held that the UK was permitted as a matter of EU law to maintain the commercial use restriction for COMUGs (and not COSUGs) and that this was properly provided for in domestic law. Accordingly the Court concluded that it could not be said that there was a manifest and grave disregard of EU law by the UK Government. Appeal dismissed.

Click here to read the full judgment of the 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.

The Competition Appeal Tribunal (CAT) has allowed an application by BT to vary the terms of the interim relief in the long-running Pay TV dispute. The effect is to require Sky to wholesale its sports channels Sky Sports 1 and 2 to BT for distribution on BT’s ‘Cardinal’ and ‘YouView’ Pay TV platforms pending the final determination of the appeals.

In 2012 the CAT allowed Sky’s challenge to Ofcom’s 2010 Pay TV Statement, which had imposed conditions requiring Sky to offer its channels Sky Sports 1 and 2 to other pay TV providers on a wholesale basis, at a price fixed by Ofcom (‘the WMO remedy). In 2010, the CAT had suspended the effect of Ofcom’s decision on an interim basis, except in relation to BT, Virgin and Top-up TV (and subsequently Real Digital), who were permitted to benefit from the WMO remedy during the appeals subject to certain conditions and undertakings. The interim relief provided that the WMO remedy was to have effect in relation to certain ‘Qualifying Platforms’, which in BT’s case was defined to mean ‘digital terrestrial television’.

The CAT’s 2012 Order allowing Sky’s appeal was set aside by the Court of Appeal in February 2014 and the case was remitted to the CAT for further consideration. On 31 October 2014 the Supreme Court refused Sky’s application for permission to appeal. The appeals are therefore once again before the CAT.

By its judgment this week the CAT granted BT’s application to vary the terms of the original interim relief so as to require Sky to comply with the WMO remedy in respect of BT’s current Internet Protocol TV platforms, ‘Cardinal’ and ‘Youview’. The CAT President, Roth J., observed that the technical developments that had occurred over the ‘wholly exceptional time’ the appeals had taken meant that the original interim relief order was now largely ineffective as regards BT. He held that the interim relief should therefore be varied to cover BT’s current TV platforms, in particular having regard to the need to protect the public interest in achieving a competitive market, which the WMO remedy was designed to secure, and on the basis that BT has undertaken to continue to retail its own sports channels to Sky’s satellite customers while the interim relief remains in effect.

Jon Turner QC and Gerry Facenna are acting for BT, Josh Holmes acts for Ofcom, and Meredith Pickford acts for BSkyB. Ben Lask also acted for Ofcom in the original CAT appeal proceedings.

Pleas click here to view the CAT’s recent judgment in BSkyB v Ofcom, BT and others (interim relief) [2014] CAT 17

The Commercial Court granted Visa summary judgment in the interchange fees litigation, striking out over 30 years of potential damages sought by a group of 12 retailers, totalling over £500m.

Twelve claimants, including high street retailers such as Asda, Argos, B&Q, Next and House of Fraser sought damages, dating back to 1977, for alleged breaches of competition law arising from Visa’s setting and imposition of multilateral interchange fees (“MIF”) in the EEA, UK and Ireland. The normal statutory limitation period is six years. The Claimants sought to rely on s.32(1)(b) of the Limitation Act to extend their claim beyond six years on the basis that Visa had deliberately concealed facts that were material to their cause of action which had prevented them from issuing their claims earlier.

In a judgment handed down today in Arcadia Group Brands Limited and ors v Visa Inc and ors [2014] EWHC 3561 (Comm)Mr Justice Simon held that there was a narrow issue which could be determined on a summary basis without the need for a full trial – namely whether there were sufficient facts known to the claimants, or reasonably discoverable by them before 2007, which were sufficient for them to plead a statement of case establishing a prima facie case. He gave a detailed summary of the chronology of publically available documents, in the form of notices, press releases and decisions published by the OFT and EU Commission from 1992 onwards as part of their investigations into interchange pursuant to Article 101 TFEU and the Chapter I prohibition. He held that Visa was able to demonstrate the Particulars of Claim could have been derived from material available before 2007.

The Claimants sought to rely on four “key facts” which they argued were essential for it to commence proceedings, namely (i) the manner and mechanisms by which the MIFs were set, the nature and scope of the Visa MIF arrangements, (iii) the identity of the Visa entities involved in setting the MIFs and (iv) the actual levels of the MIFs. Mr. Justice Simon dismissed those arguments, holding that such facts (although useful in providing commercial reassurance in commencing litigation) were either not material to pleading a cause of action and/or , in any event, could have been discoverable by sophisticated retailers and their advisors from the publically available materials or via appropriate use of the CPR procedures.

Importantly, the judge commented that the trigger for the running of time for limitation purposes is not the discovery of every potentially relevant fact in the broadest sense but merely those which are sufficient for a cause of action to be pleaded and which cannot be struck out for want of some essential averment.

The case has important ramifications for limitation periods, which may well now be triggered by commitment decisions and settlement decisions if sufficient facts are set out in the body of the Decision.

Anneli Howard  (instructed by Linklaters LLP) acted for the Applicants, Visa Europe a.o., the Third to Fifth Defendants in the claims and who took the lead role in the Applications

 

Ian Wise QC acted for the successful appellant, Michelle Moseley, in a challenge to the lawfulness of Haringey council’s consultation on its proposed council tax reduction scheme which affected over 36,000 people in the borough.  The Supreme Court, in a judgment with wide-ranging consequences for all consultation exercises carried out by public bodies, found that it was unfair and unlawful for Haringey to have only informed consultees about its preferred option without giving them at least an outline of the realistic alternatives and an indication of why they proposed to adopt their preferred scheme.

The court found that in wrongly presenting its preferred option as being the only option available to it the council misled consultees and no assumed knowledge on the part of consultees could save Haringey’s consultation exercise from a verdict that it was unfair and therefore unlawful.  In doing so the Supreme Court confirmed the case law of the lower courts to the effect that the demands of fairness will be likely to be greater when an authority proposes to deprive someone of an existing benefit than when considering a potential future benefit.

This was the first occasion that the Supreme Court (or indeed the House of Lords) has considered the requirements of a lawful consultation and as such will be the leading case on this area of law.

 

John Swift QC has been appointed to the Ofwat Casework Committee.

The Casework Committee was established by Ofwat to make certain final decisions in strategic cases.

For more information on Ofwat, please click here: http://www.ofwat.gov.uk/

Ian Wise QC and Stephen Broach speak at Justice Annual Human Rights Conference 2014 on 20 October 2014.  Speaking on ‘Disability and Human Rights’ Ian Wise QC and Stephen Broach will examine three recent key judgment of the Supreme Court that they have both been involved in. 

The first of these, Aintree University Hospital v James [2014] AC 591, concerned the correct approach of the courts in deciding whether it was in the best interests of a critically ill man to withhold life-saving treatment.  In a landmark judgment the Supreme Court found that the Court of Appeal had been wrong to place the threshold for such treatment too low.

In the second case, R(McDonald) v Kensington & Chelsea RLBC [2011] PTSR 1266, the Supreme Court controversially found that there to have been no breach of Ms McDonald’s article 8 ECHR rights where the local authority refused to continue to provide her with support to access the toilet, instead finding that her needs could be met by providing her with incontinence pads.  This decision was in part rejected by the European Court of Human Rights (McDonald v UK) which found a breach of article 8 for the period when the local authority had a care plan in place to provide Ms McDonald with access to the toilet. 

The third judgment of the Supreme Court that Ian and Steve will be examining is that of Surrey CC v P and Cheshire West  v P [2014] AC 896, which gave guidance on the circumstances when the Deprivation of Liberty Safeguards (DoLS) found in the Mental Capacity Act 2005 are to be applied, the court finding that article 5 ECHR required the safeguards to be applied far more generally for disabled people who lack capacity and are not free to leave their place of confinement at will than had been found to be the case by the Court of Appeal. 

Speaking in advance of the conference Ian Wise QC said “these important cases show how vitally important human rights protections are for disabled and vulnerable people and how necessary they are to ensure that they are treated with the dignity and respect.”

 

In order to mark five years since the opening of the Supreme Court, Lord Neuberger was interviewed by the Independent on Sunday, and selected the five most significant cases to be heard by the Court in its first five years. Two of the cases featured members of Monckton Chambers.

In Al Rawi & Ors v Security Service & Ors, Daniel Beard QC acted on behalf of the appellants, Security Service & Ors. The case is summarised in the article as follows:

Should protecting national security trump the long-held British legal principle of open justice? That was the point at issue in the case of Al Rawi after a series of former inmates from US-run prisons, including Guantanamo Bay tried to bring claims against UK security services for contributing to their detention, rendition and mistreatment.

To fight the case, the security services said they must be allowed to give evidence to the judge in secret in the interests of national security – resulting in a situation where the former prisoners may have their claim dismissed on the basis of evidence that neither they nor their legal teams had seen.

The Supreme Court decided such an arrangement “simply wasn’t possible”, adding: “However sympathetic one might be to the security services wanting to produce evidence to exonerate themselves, we felt we simply couldn’t approve a trial process which undermined one of the most fundamental principles of a fair trial: that each side hears and sees all the evidence and arguments put before the judge by the other side.”

In HS2 judicial reviews, Kassie Smith QC acted for the second appellants, Buckinghamshire County Council and others. This case is described in the article as follows:

Campaigners opposing the high-speed rail link between London and the North-west (HS2) sought a judicial review of the Government’s plans – specifically whether they complied with EU environmental directives.

The court unanimously dismissed the appeal, saying that until Parliament reached a final decision on the HS2 scheme, its merits remained open to debate. In doing so, said Lord Neuberger, it fired a “warning shot” across the bows of the Court of Justice of the European Union in Luxembourg.

“We criticised the EU court for saying the directives in question meant something different from that which, frankly, they naturally meant,” he said. “We said that was wrong in principle. That’s not what a court should do. The law should be made by the European Commission and the ministers, not the judges rewriting directives.”

The Supreme Court also criticised observations made in Strasbourg that courts should monitor parliamentary debate. Lord Neuberger described this as “completely contrary” to the long-established British view that judges shouldn’t “poke their noses into what’s going on in Parliament”, adding: “We thought this was risking blurring that important separation.”

 

The Supreme Court has sat on 508 days over five years, hearing 382 appeals and handing down 344 judgments.

To read the full interview in The Independent, please click here.

The Upper Tribunal has upheld the First Tier Tribunal’s judgment in the important and long-running litigation between local authorities and the HMRC over the question of whether the latter was correct in deciding that the treatment of local authorities as non-taxable persons when providing services that are otherwise taxable would lead, as a real possibility, to actual or potential distortions of competition (on a more than negligible scale) with private operators supplying the exact same services for the purposes of Article 4.5(2) of the Sixth VAT Directive (now Article 13 of Directive 2006/112/EC).

The appellant local authorities had appealed against the First Tier’s findings that the non-application of VAT to Local Authority provision of off-street parking would distort competition and that the degree of distortion would be more than negligible. Those findings were made, applying guidance provided by the Grand Chamber of the ECJ to whom a reference had been made by the High Court on an earlier appeal. The local authorities alleged that the First Tier had erred insofar as it had made findings of fact based on an incorrect understanding of the relevant road traffic legislation. The Upper Tribunal has dismissed the appeal in a judgment in which it comprehensively upheld the First Tier’s analysis.

This litigation, which has been running for more than ten years, is regarded as a test-case and although car-parking was the subject considered by the Tribunal, the same principles may apply to the provision of other services or supplies provided by a local authority where there are private operators providing the same service in the same market. Local authorities had collectively brought very significant Fleming claims which, pursuant to the Upper Tribunal’s Judgment, HMRC will not be required to refund.

Ben Rayment and Brendan McGurk successfully acted for HMRC.

Click to read the judgment in Isle of Wight v HMRC

On 14 October,  the Ukrainian Parliament adopted a new Law “On the Prosecutor’s Office” as part of continuing steps to modernise its criminal justice system, to fulfil its commitments under European and International Human Rights Law and to allow implementation of the Association Agreement with the European Union. The Law, which includes the elimination of the former general supervision function of the public prosecution established under the Soviet system, was prepared with the assistance of Jeremy McBride, who acted as an expert for the Council of Europe for  this reform. Previously he advised the Council of Europe on the preparation of a new Code of Criminal Procedure in Ukraine to replace the one adopted during the Soviet era.

 

Monckton Chambers is delighted to announce that Jon Turner QC has been awarded “Silk of the Year” for EU and Competition law at the annual Legal 500 UK Awards.

Congratulations to Jon.