The Upper Tribunal has dismissed an appeal by Finance and Business Training (FBT), a business education provider in Birmingham, against HMRC’s refusal to treat its provision of Masters courses as exempt under Schedule 9, Group 6, Item 1 VATA 1994.

That exemption covers supplies of education and vocational training if made by an “eligible body”. Note 1 defines that term so as to include “a United Kingdom university” as well as any “college” or “institution” of such a university.

The issue was whether FBT was an “eligible body” when providing the disputed Masters Courses. FBT provided those courses in association with the University of Wales, which was itself an “eligible body”. FBT also provided other education and vocational training (including professional accountancy training) independently. It accepted that it was not an “eligible body” when providing the latter category of education, but it argued that it was a “college” or “institution” of the University of Wales when providing the Masters courses in association with that University.

In the Upper Tribunal, Mr Justice Morgan held that the FTT had been right to reject that argument. He confirmed that it was not legally possible for an educational provider to be both an “eligible body” in respect of some of its activities and not an “eligible body” in respect of the remainder of its activities. The exemption did not permit a supplier to distinguish between the different capacities in which it acted when determining whether the supplier was an eligible body or not. There was no support for such an approach in either the language of Schedule 9, Group 6, Item 1 VATA or in the language of the underlying exemption in Article 132(1)(i) of the Principal VAT Directive. Nor was FBT’s approach supported by either the purpose of those provisions or the tenor of the relevant authorities. In those circumstances, FBT was not an “eligible body” when providing the Masters courses and was not entitled to exemption in relation to them.

Why is it relevant? On Morgan J’s approach, it will be difficult (although not impossible) for an education provider to establish that it is an “eligible body” and entitled to exemption if it both  supplies courses in association with a university as well as other courses independently. Whether it can do so will depend on whether it can show that it is sufficiently integrated in the university, which in turn requires it to show that a substantial portion of its activities are connected with the university.

Melanie Hall QC represented FBT.

Raymond Hill represented HMRC.

Michael Bowsher QC acted for Sandwell Homes Ld in this substantial multi-million pound claim arising out of public housing maintenance arrangements in West Midlands.  The party that was told it had won the contract for a multi-million pound multi-year contract claimed that it was entitled to substantial lost profits into the millions when the authority declared that there had been no contract.

The Times sport section today quoted Paul Harris QC as its ‘Silk of the Year’.

The Times praises Paul Harris QC after his defence of Mercedes at the FIA International Tribunal in June regarding tyre test rules. ‘Harris, defending for Mercedes, brilliantly suggested the team’s punishment to the judges – and got it, providing a handy template for the future.’ writes Kevin Eason.

In a judgment which will affect the entire retail sector, the European Court of Justice has ruled that where a customer fraudulently uses a bank card to obtain goods from a retailer and the retailer receives payment of the price  from the card issuer or from its merchant acquirer  there was a supply of goods for consideration. As a result the retailer is required to pay VAT on the supply.

The reference to the ECJ raised the questions (1) whether there had been a “supply of goods” by the retailer (Dixons) within the meaning of the VAT Directives and, if so, (2) whether that supply was for “consideration”. The ECJ  ruled on the current  position and the “identical”  position under the Sixth Directive.

The ECJ accepted HMRC’s case that there was a supply of goods. Dixons had voluntarily handed over the goods to the customer and the fraudulent use of a bank card as a means of payment did not stop the transactions being  supplies of goods.  Dixons’  contention that the transactions were indistinguishable from theft was rejected.

Where a retailer had received payment of the price of the goods through the card system, under an agreement made with the card issuer (here AmEx) or a merchant acquirer bank (here Nat West Streamline), the retailer had received consideration for its supply. Neither the fact that payment was received by the retailer from a third party, here AmEx or Streamline, nor that the third party had provided a payment guarantee service, could lead to the conclusion that the retailer had received no consideration for its supply.  That the sales subsequently turned out to have been paid for by means of cards used fraudulently did not prevent the payment of the price for those sales being consideration obtained by Dixons in respect of those sales

Peter Mantle represented the United Kingdom in the ECJ  (as well as representing HMRC in the First-tier Tribunal which made the reference).

Dixons Retail plc v HMRC (Case C 494/12),  judgment of 21 November 2013

Click here to read the full judgment in Dixons retail plc v HMRC

Click here to read the Dixons case note written by Raymond Hill

On 15 August 2013, the Competition Appeal Tribunal ruled that it had jurisdiction over claims made by a number of UK Claimants in the continuing Deutsche Bahn litigation.  In a written judgment handed down today, the Court of Appeal has upheld the Tribunal’s ruling and dismissed applications by a number of the Defendants for permission to appeal.

Deutsche Bahn AG v Morgan AM PLC full judgment.

The Competition Commission today published its final report clearing Optimax’s completed acquisition of refractive eye surgery provider, Ultralase, on “failing firm” grounds.  Such clearances remain relatively rare, but in this case the CC was satisfied that, absent Optimax’s acquisition, Ultralase would have exited the market.  It went on to compare the likely distribution of Ultralase’s sales in the event of an exit with the actual distribution post-merger, and concluded the merger was not a less competitive outcome.

Optimax was represented by Alison Berridge and Michael Armitage.

The Court of Appeal has given a significant judgment on the scope of an English jurisdiction clause, including whether that clause covered an English law  breach of statutory claim under Article 101 TFEU against a member of an Italian jet fuel cartel.

The underlying claim was brought by Ryanair, the well-known Irish airline, against Esso Italiana (“Esso”), part of the ExxonMobil group. The Italian Competition Authority had found that Esso and certain other oil companies selling jet fuel at various Italian airports had engaged in information sharing agreements in breach of Article 101 TFEU, with an inflationary effect on prices. Ryanair claim was based on both (a) a breach of a provision in its contract with Esso for the supply of jet fuel, and (b) a breach of statutory duty, which included a claim that Esso should be held jointly and severally liable  for all the losses resulting from the cartel. Ryanair alleged that because its contractual claim was subject to the jurisdiction of the English courts, the same must apply to its breach of statutory claim. At first instance, Eder J ([2012] EWHC 200 (Comm)) agreed.

In allowing Esso’s appeal, the Court of Appeal held that, on its proper construction, the contractual clause on which Ryanair relied for its breach of contract claim did  not, in fact, cover a claim in respect of losses suffered as a result of Esso’s involvement in the cartel in breach of Article 101 TFEU. In those circumstances, the submission by Ryanair which had found favour with Eder J – that a rational businessman would have intended the English jurisdiction clause to cover both its breach of contract claim and its breach of statutory duty claim  – simply fell away, since it critically depended on the fact that Ryanair actually had a contractual claim within the scope of the English jurisdiction clause in its agreement with Esso. In addition, however, the Court of Appeal considered the broader question of whether an English jurisdiction clause expressed as covering “disputes under this Agreement” could extend to a breach of statutory duty claim for damages suffered at the hands of an Italian cartel in relation to the sale of fuel at Italian airports. In a judgment with which the other members of the Court of Appeal agreed, saw nothing in cases (such as The Fiona Trust) on the presumption of “one stop adjudication” to suggest that a pure breach of statutory duty claim against a member of an Italian cartel should fall within the jurisdiction provisions of an English law contract, irrespective of the availability (or otherwise) of any parallel contractual claim governed by English law. The decision therefore suggests that English courts may be slow to accept jurisdiction over cartel damages claims based on Article 101 TFEU when the cartel in question is more obviously connected with another EU Member State.

Daniel Beard QC acted for the successful appellant.

Michael Armitage wrote the following case note on Ryanair v Esso

The Court of Appeal rejected an appeal by Chemistree Homecare against a judgment of Roth J in February this year dismissing an application by it for an interim injunction under Chapter II of the Competition Act 1998 (abuse of dominant position) requiring a leading pharmaceutical company to supply it with specified quantities of a branded HIV medicine. The Court of Appeal agreed with the pharmaceutical company that it was not in a dominant position, and rejected claims that the relevant product market was the branded medicine.  It was able to dismiss the appeal on that basis without needing to consider Roth J’s further holding that Chemistree had put forward no arguable case on abuse.

George Peretz represented the pharmaceutical company before the Court of Appeal and Roth J.

Click here to read the full judgment in Chemistree Homecare Limited v Abbvie Ltd

Anneliese Blackwood wrote the following Chemistree v Abbvie case note

The Court of Appeal has allowed IMI’s appeal against the judgment of Roth J, and has ruled that follow on claims brought in the tort of conspiracy by claimants in the Travis Perkins group cannot be brought under section 47A of the Competition  Act 1998.

The Court found that a conspiracy claim could in principle be brought under section 47A if supported by the Commission’s infringement findings – that may only be in rare cases.  The Court nevertheless upheld the approach to section 47A established in the Enron cases, and rejected a wider interpretation that the claim made need only be consistent with the Commission’s findings.

In the present case, the conspiracy claim depended on showing that the defendants intended to injure the claimants.  The Court of Appeal disagreed with the judge’s finding that an intent to injure could be inferred from the defendants’ intention to benefit their own businesses, noting for instance that the claimants might have been able to pass any losses on.

The Court hence ordered that the remaining conspiracy claims should be struck out.

Click to read the Newson v IMI full judgment

or our case note on Newson v IMI PLC written by Brendan McGurk.

Monckton Chambers is pleased to announce that Nicholas Paines QC has been appointed to the Law Commission. He joins the Commission on 18th November 2013, and will lead their work on public law.

Nicholas Paines QC is a leading silk in EU and public law. He sits as a Deputy High Court Judge in the Administrative Court, a Deputy Judge of the Upper Tribunal (Administrative Appeals Chamber) and the First-tier Tribunal (Tax Chamber) and a Recorder in the Crown Court. He is also a member of the Bar of Northern Ireland.

Members and staff warmly congratulate Mr Paines QC on this prestigious appointment.