On Friday, the Investigatory Powers Tribunal held a rare public hearing into complaints against the UK’s intelligence services following media reports of their alleged involvement in mass surveillance of phone calls, text messages, emails and internet use in the UK and overseas.

A coalition of human rights groups from seven different countries allege that GCHQ, MI5 and MI6 unlawfully intercepted emails, internet use, phone calls and text messages in cooperation with the US National Security Agency by way of such programmes as Prism, Tempora and Upstream.

Eric Metcalfe is junior counsel for Liberty, the American Civil Liberties Union, the Canadian Civil Liberties Association, the Egyptian Initiative for Personal Rights, the Hungarian Civil Liberties Union, the Irish Council for Civil Liberties and the Legal Resources Centre (South Africa).

A five-day open hearing of the claims is expected to be held in July.

Click here to read the Guardian report.

The First-tier Tribunal has dismissed an appeal by Trapps Cellars against assessments totalling about £1.5 million in relation to the diversion of a number of lorry loads of spirits at some point between Trapps’ warehouse in London and two destination warehouses in Italy.

The Tribunal rejected Trapps’ main argument that it was not liable to duty because the diversion was a “loss” occurring under suspension arrangements which was attributable to “fortuitous events”. It argued that those fortuitous events entitled it to relief from duty under Article 14(1) of Directive 92/12/EEC. The Tribunal dismissed that argument, holding that goods were only “lost” within the meaning of Article 14(1) if they were unusable or not consumable. Diverted goods were not “lost” simply because the tax authorities were unable to ascertain where they were and could not collect the excise duty owing. In such circumstances, the missing goods remained available for sale to consumers within the EU.

In any event, the Tribunal found that Trapps had failed to establish the pre-conditions for a fortuitous event. It needed to show that the loss resulted from abnormal and unforeseeable conditions, which could not have been avoided even with the exercise of all due care. The Tribunal held that it was not enough for an excise warehousekeeper to establish that it acted in good faith. It had to show that it had taken appropriate measures to limit risk. In this case, Trapps did not take due care to prevent the consignments from going missing by undertaking due diligence on the consignees and the transporters.

The Tribunal also rejected an argument by Trapps that HMRC had allowed the consignments to run and that it should therefore have remitted duty, by analogy with the ECJ’s decision in relation to customs duty in Case C-61/98 De Haan. In that case, the ECJ held that a custom agent was not liable where it was not informed that consignments were being allowed to run as part of a criminal investigation. The Tribunal held that, although there was evidence that the Italian authorities had suspicions regarding the two Italian destination warehouses, that did not entitle Trapps to remission of duty, since De Haan was limited to cases where the tax authorities deliberately allowed offences or irregularities to be committed. There was no requirement to remit duty just because the tax authorities had suspicions at the time of the diversions, since a tax authority is not obliged to warn any taxpayer of its suspicions.

Finally, the Tribunal held that HMRC had jurisdiction to assess Trapps to UK excise duty – Trapps could not suggest that it should have been assessed to Italian excise duty, which was now out of time for assessment. Under the jurisdiction provisions set out in Article 20 of Directive 92/12/EC, the excise duty point was in the UK where the goods did not arrive at their destination. The duty point would only have arisen in Italy if the irregularity had been detected in the course of the movements by the Italian authorities. In the present case, the irregularities were detected after the end of the movement – and in any event, they were first detected by HMRC and not by the Italian authorities.

Raymond Hill represented HMRC, instructed by Shepherd & Wedderburn.

The Council of the European Union has today adopted the package of public procurement directives which will in due course replace the existing EU directives in this field and which is made up of:

– Click to view the new directive on public procurement, replacing Directive 2004/18/EC;

– Click to view the new directive on procurement by entities operating in the utilities sectors, replacing Directive 2004/17/EC

and

– Click to view the new directive on the award of concession contracts.

To read the full Women in Business interview click here.

House of Lords hears evidence on EU Sanctions Regimes 6 February 2014 The House of Lords (Sub-Committee C – External Affairs) heard evidence today (Thursday 6 February 2014) on EU restrictive measures. A video of the evidence given to the Committee by Philip Moser QC of Monckton Chambers and Maya Lester is available here.

The Foreign and Commonwealth Office also gave evidence, but asked that its evidence be kept confidential in a closed session.

The OFT has today published its finalised Principles for online and app-based games.

In April 2013, the OFT announced the launch of an investigation into the ways in which online and app-based games encourage children to make purchases. It investigated whether there was general market compliance with consumer protection law, in particular the Consumer Protection (from Unfair Trading) Regulations 2008, the Unfair Terms in Consumer Contracts Regulations 1999 and the Electronic Commerce (EC Directive) Regulations 2002.  It explored whether online and app-based games included commercial practices that may be considered misleading, aggressive or otherwise unfair under that legislation.

The result is a set of principles that clarifies the OFT’s  view of the obligations of operators in this dynamic new industry under consumer protection law.  The principles can be found here.

Ben Rayment has been advising companies concerned by the OFT’s investigation on the correct application of the law in this sector.

On 28 January 2014 Mrs Justice Rose handed down judgment in Arriva The Shires Ltd -v- London Luton Airport Operations Limited [2014] EWHC 64 (Ch).

The decision, which follows a three-week hearing in the Chancery Division in October – November 2013, contains an extensive consideration of the law of abuse of dominance in the context of a claim by the claimant bus company that the defendant airport operator had abused its dominant position in awarding an exclusive concession to operate a service from the airport’s bus station to one of the claimant’s competitors.

The case had previously been the subject of an injunction hearing before Roth J in June 2013.

Paul Harris QC, Ben Rayment and Michael Armitage (instructed by Bond Dickinson LLP) appeared for the Claimant.

Tim Ward QC (instructed by King and Wood Malleson LLP) appeared for the Defendant.

Click here to read the judgment on arriva v luton airport.

The Supreme Court has dismissed appeals challenging the Government’s decision to proceed with a high speed rail link from London to Birmingham, Leeds and Manchester (HS2). Challenges to HS2 had been brought by 15 local authorities located along the route of HS2, HS2 Action Alliance (local residents’ groups opposing HS2) and Heathrow Hub. The Appellants argued that the Government’s decision failed to comply with the SEA Directive, and that to proceed in Parliament by way of the hybrid bill procedure breached EU environmental law (the EIA Directive).  The Supreme Court rejected both of these grounds of appeal.

Kassie Smith QC appeared (with Nathalie Lieven QC) for the local authorities.

The case has been widely covered by the local and national press;

The Guardian

Financial Times

BBC

Click here to read judgment on HS2 v SoS for Transport

National Grid Electricity Transmission plc v ABB ltd & Ors, has been selected as one of the top 20 cases to watch this year by The Lawyer.

Jon Turner QC, Daniel Beard QC and Laura Elizabeth John are instructed by Berwin Leighton Paisner for the claimant National Grid.

This major cartel damages case will consider a number of precedent-setting issues, including how to calculate cartel ‘overcharges’ in antitrust damages claims.

The cases, selected by over 100 leading litigators, barristers and senior clerks represent the most significant cases for 2014 in terms of developing the law.

Producers organisations (POs) – national organisations of producers of particular agricultural products – are  an important aspect of the CAP and receive significant amounts of European funding.  Over the last few years, there has been a considerable amount of litigation as to the extent to which POs must retain day-to-day control of functions that they choose to outsource, marketing.  In a reference from the High Court decided today by the European Court of Justice (Case C-500/11, Fruition PO), the ECJ agreed with the approach taken by the UK authorities when it held  that POs must, when they outsource functions, remain vigilant to ensure that effective performance of those functions is guaranteed, and that they retain the ability to take “timely and peremptory” action.  It was not enough to show that in practice the PO and the entity carrying out the outsourced function operated on the basis of consensus.

George Peretz represented the Department of the Environment, Food and Rural Affairs in the High Court and the United Kingdom in the ECJ.

Click to read the full judgment in Fruition Po Ltd v Minister for Sustainable Farming and Food and Animal Health,