The Grand Chamber of the European Court of Human Rights has today handed down judgment in the first inter-State case brought  using the special procedure of Article 33 of the Convention (i.e., one brought by one Member State of the Council of Europe against another) since the Court became a full time institution in 1998 and only the fourth such case ever to be brought before the Court.  The case of Georgia v. Russia (I), application no. 13255/07 concerned the alleged existence of an administrative practice involving the arrest, detention and collective expulsion of Georgian nationals from the Russian Federation in the autumn of 2006.

In its judgment in the case, which is final, the Court held, by a majority, that there had been:

a violation of Article 4 of Protocol No. 4 (prohibition of collective expulsion of aliens) of the European Convention on Human Rights;
a violation of Article 5 & 1 (right to liberty and security);
a violation of Article 5 & 4 (right to judicial review of detention);
a violation of Article 3 (prohibition of inhuman or degrading treatment);
violations of Article 13 (right to an effective remedy) in conjunction with Article 5 & 1 and with Article 3; and
a violation of Article 38 (obligation to furnish all necessary facilities for the effective conduct of an investigation).

The Court found no violation of Article 8 (right to respect for private and family life), no violation of Article 1 of Protocol No. 7 (procedural safeguards relating to expulsion of aliens) and no violation of Articles 1 and 2 of Protocol No. 1 (protection of property and right to education).

However, having regard to the parties’ submissions, the statements by 21 witnesses it had examined during a hearing in Strasbourg, and the reports from various international organisations, the Court found that in the autumn of 2006, a coordinated policy of arresting, detaining and expelling Georgian nationals had been followed by the Russian authorities, which had amounted to an administrative practice incompatible with the Convention.

 

The application to the Court was prepared by Piers Gardner and Jeremy McBride on behalf of the Ministry of Justice of Georgia.

 

To read the judgment in full, please click here.

Ian Rogers QC has been appointed a member of the Rugby Football Union (“RFU”) Judiciary.

Ian will sit on the panel to hear appeals, competition appeals and other specialised cases from time to time.

Ian recently acted in Park Promotions Ltd t/a Pontypool Rugby Football Club v Welsh Rugby Union, concerning contractual rights and the scope of the Bradley duty of fairness imposed on sports governing bodies by reason of their control over the sport.

Please click here for more information on this case.

Tim Ward QC of Monckton Chambers was also appointed to the RFU panel last year.

In a decision released today, the Upper Tribunal has held that HMRC’s approach to the taxation of bodies established by statute for the purposes of promoting tourism is incorrect. The ruling is good news for all Tourist Boards, particularly those that have been established by statute to serve the Governments in the country they have been established to promote, because it is now clear that there is no objection in principle to such Boards receiving regular VAT credits from HMRC.

Click here for an analysis of the case by Frank Mitchell, South African Tourist Board v HMRC case note.

Click here for a link to the Upper Tribunal’s decision, South African Tourist Board v HMRC judgment

Melanie Hall QC and Frank Mitchell acted for The South African Tourist Board

The comments made in this case note are wholly personal and do not reflect the views of any other
members of Monckton Chambers, its tenants or clients.

The High Court has rejected a challenge to the Home Secretary’s “no recourse to public funds” policy. Under the Home Secretary’s policy, a foreign national granted permission to stay in the UK on the basis that she has a family life here cannot claim welfare benefits unless she is destitute or there are compelling reasons relating to the welfare of a child.

In a judgment handed down on 20 June, Mr Justice Kenneth Parker rejected a claim that the policy was incompatible with the Home Secretary’s statutory duty to have regard to the welfare of children in the UK. In a decision that illustrates the margin of discretion afforded to Ministers in matters of public policy, the Judge concluded that the policy accorded due weight to the welfare of children and that, in those circumstances, the Court could not strike down a public policy choice made by the elected government even if it disagreed with it.

Ben Lask acted for the Home Secretary.

Please click here to download the NS v Secretary of State Home Office Judgment.

The CMA today closed its investigation into the retail pricing of sports bras, concluding that there were no grounds for enforcement action against the parties involved.

In September last year, following a two year investigation, the OFT issued a Statement of Objections alleging that DBA, manufacturer of the “Shock Absorber” range, had entered into a series of resale price maintenance arrangements with each of Debenhams, House of Fraser and John Lewis, covering three separate periods between 2008 and 2011. This was the first time the OFT had proceeded with an investigation on its own initiative, without a prior complaint or leniency application providing detailed evidence regarding the specific conduct in question.

Once an SO is issued, it is unusual for the investigation to be closed: over the past five years, 90% of parties receiving an SO alleging an anti-competitive agreement or concerted practice have gone on to be the subject of infringement decisions.

However, in this case, following written and oral representations from the parties, the CMA reassessed the evidence on its file and concluded that there were no grounds for action against the parties.

Daniel Beard QC and Alison Berridge represented House of Fraser.

Anneli Howard and Michael Armitage advised the CMA.

The Court of Appeal today confirmed that HMRC are entitled to charge VAT on hot takeaway food. Over 1,200 hot takeaway food outlets stood behind this test case brought by Sub One, part of the Subway franchise. The Court of Appeal dismissed the appeal, finding that the legislative test, which focuses on the purpose for which food has been heated, did not give rise to any lack of certainty or unfairness based on the VAT principle of fiscal neutrality. Permission to bring a fresh challenge to that part of the legislative test which decides whether food is hot by reference to the ambient air temperature was also refused.

Click to view a copy of the judgment in Sub One v HMRC

 

Melanie Hall QC, representing HMRC, led Ewan West of Monckton Chambers and Owain Thomas.

 

 

Philip Moser QC of Monckton Chambers was interviewed on Radio 5 Live today (4 June), discussing the judgment in Delaney v Secretary of State for Transport.

The High Court held in this case that the UK’s current exceptions to the payment of compensation for passengers under the Uninsured Drivers’ Agreement 1999 are contrary to EU law.

To download the podcast, dated 4 June, please click here.

The case has been featured in various media, including the BBC, The Telegraph and the Independent.

For more information on Delaney v Secretary of State for Transport, please click here.

The High Court has held that the UK’s current exceptions to the payment of compensation for passengers under the Uninsured Drivers’ Agreement 1999 are contrary to EU law.

The Agreement between the Secretary of State for Transport and the Motor Insurers’ Bureau was intended to implement the UK’s obligations under the Second Motor Insurance Directive.

The Court also found that the UK’s breach was sufficiently serious to warrant the payment of Francovich damages to the Claimant, who had sustained life-threatening injuries following a collision in 2006.

Philip Moser QC and Eric Metcalfe, instructed by Pinto Potts, acted for the Claimant.

Click to read the full Delaney v SoST judgment.

Monckton Chambers is delighted to announce that experienced EU practitioner Christopher Muttukumaru CB has joined Monckton as a tenant.

Monckton Chambers is the leading set in EU law, and Christopher’s extensive experience in Constitutional and Administrative Law, European Union (including State Aid) Law and Information Law will complement Monckton Chambers’ key areas of practice. Christopher’s EU work in the Better Regulation field will also bring a unique perspective.

Christopher’s illustrious career includes positions as Deputy Legal Advisor at the Ministry of Defence, Legal Director for the Department for Culture, Media & Sport and Legal Director for the Environment, Local Government and Housing at the Department for the Environment, Transport and the Regions (DETR). Christopher is also an accredited mediator.

Christopher’s legal excellence and specialist knowledge gained from 30 years within the Government Legal Service will be an invaluable addition to Monckton.

Paul Lasok QC, Head of Monckton Chambers said: “Professional and lay clients in a number of market sectors encounter difficult problems in relation to which Christopher, with his background and experience, is uniquely placed to give authoritative guidance and advice. His return to private practice after many years in the public sector fills a serious gap in the market.”

Christopher Muttukumaru said: “Monckton is rightly regarded as a top set of chambers. Their invitation to me to join is therefore a fantastic opportunity. I look forward in due course to supporting a fresh client base through a consultancy service that brings new insights to problem-solving.”

David Hockney, Senior Clerk said: “I am delighted that Christopher has accepted our offer of tenancy. Christopher’s unique skill set and very considerable experience working within the corridors of the power, will serve Monckton Chambers very well, neatly complementing our market leading practice.”

The Upper Tribunal has confirmed the correctness of the decision of the First-tier Tribunal in Patersons of Greenoakhill which dismissed a test case behind which appeals by 123 landfill site operators have been stayed.

The Upper Tribunal found that landfill tax is payable on biodegradable waste, notwithstanding the fact that the methane, which is an inevitable by-product of the process of degradation, is converted  into electricity and fed into the national grid. The Upper Tribunal found that exemption would defeat the policy objectives of the tax and that extracting and converting methane into electricity is part and parcel of running a landfill site. Since methane production is inevitable, it is no more used than a gardener uses rain falling on her garden to water it. Since “use” by the landfill site operator was the Appellant’s core argument, the appeal was dismissed.

Please click for the Decision in Patersons v HMRC