The First Tier Tribunal has just given 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).

In its judgment, the Tribunal has found that the non-application of VAT to Local Authority provision of off-street parking would distort competition and the degree of distortion would be more than negligible. This litigation is regarded as a test-case and although car-parking was the subject considered by the Tribunal, the same principles must be applied to the provision of any service or supply 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 Tribunal’s Judgment, HMRC will not be required to refund.

Christopher Vajda QC, Ben Rayment and Brendan McGurk successfully acted for HMRC.

Nicholas Paines QC was a member of the Tribunal.

Click to read the judgment in Isle of Wight v HMRC

Monckton Chambers is pleased to announce that Raymond Hill has been nominated for this year’s Bar Pro Bono Award.

The Award is presented annually to a barrister or group who have made a difference through pro bono work. Lord Goldsmith, president of the Bar Pro Bono Unit, founded the award in memory of his late father and will lead the panel of judges. The winner will be announced on Saturday 10th November at this year’s Bar Conference.

Raymond worked entirely pro bono with an Irish non-profit volunteer organisation, “Justice for Magdalenes” (JFM) to promote equality and advocate for justice and support for the women formerly incarcerated in Ireland’s Magdalene Laundries

Monckton Chambers is delighted to announce the appointment of Christopher Vajda QC as the new UK judge to the European Court of Justice, following a swearing in ceremony on 8^th October 2012.

Minister for Europe, David Lidington MP, welcomed the appointment saying:

“I congratulate Mr Vajda on his appointment. I am confident that his extensive previous experience will enable him to make a significant contribution to the workings of the Court during his term.”

Christopher Vajda QC has practised as a Barrister for the past thirty years. He was appointed Queen’s Counsel in 1997 and a Bencher of Gray’s Inn in 2003. Christopher has sat as a recorder within the Crown court for the past eight years and has significant expertise in the fields of both UK and European law, and the corresponding European and legal systems. As a Barrister he has appeared in front of both the Supreme Court and the European Court of Justice on a number of occasions.

Christopher has taken up his appointment for an initial term of six years.

Melanie Hall QC has successfully represented HM Revenue and Customs in two challenges, saving HM Treasury almost £20 billion.

Melanie Hall QC and Ewan West of Monckton Chambers represented HMRC in Sub One v HMRC, in which The Hon Mr Justice Arnold rejected a challenge made by 1,200 hot food outlets to the UK legislation on VAT payable on hot takeaway food. The outlets argued that the legislation, introduced by Thatcher, was contrary to EU law because it inevitably meant that hot food outlets were taxed differently depending on what was in the mind of the supplier when the food was heated. The Judge disagreed. The legislation did not breach EU law. He concluded that it was perfectly possible to assess the purpose for which food has been heated above ambient air temperature in a way that did not create inequality between competing food outlets.

Suppliers also attempted to blame HMRC for the inconsistent decisions made by the tribunals and the courts since 1987 when a pie maker called John Pimblett and Sons persuaded the Court of Appeal that he had not heated his pies for the purposes of enabling them to be consumed above ambient air temperature. The Judge concluded that no blame could be laid at the door of HMRC or the Government. The taxpayers have yet to announce whether they will appeal.

Melanie Hall QC also successfully represented HMRC in Patersons of Greenoakhill v HMRC, when resisting a challenge to the Landfill Tax by hundreds of site operators in the test case.

The basis of the challenge was that the tax was not payable in circumstances where the methane, produced as part of the process of biodegradation, was converted into electricity.

To read the judgment in Sub One v HMRC, please click here.

Click below to read the judgment in:

Patersons of Greenoakhill Part 1

Patersons of Greenoakhill Part 2

On 5 and 6 September the European Court of Justice heard proceedings brought by the Commission against the UK, Ireland, Denmark, Finland, the Czech Republic and Sweden. Melanie Hall QC represented the UK, arguing that it was not contrary to EU law and/or the VAT Directives to allow non-taxable persons such as holding companies to be part of a VAT Group.

The Advocate General will deliver his opinion on 27 November 2012

Monckton Chambers is pleased to announce that Michael Bowsher QC was called to the Bar of the Republic of Ireland at the Call Ceremony in Dublin on 5 October.

Michael took silk in 2006 and has been a member of Monckton Chambers since 2001. He has built a diverse practice based around EU and commercial law. Michael is best known for his unique practice in public procurement, having appeared in many of the major UK procurement cases over the last decade.  He has been a member of the Bar of Northern Ireland since 2000 and has a busy practice there as well as in England.

Members and staff warmly congratulate Michael on his success.

The Upper Tribunal (Mr Justice Norris) today set aside a decision of the First Tier Tribunal(“FTT”) in 2009  that the United Kingdom had breached the principle of fiscal neutrality in the period up to 2005 by subjecting certain types of gaming machines (“Part III machines”) to VAT but not imposing VAT on Fixed-Odds Betting Terminals (“FOBTs”).  Although HMRC had withdrawn a number of their legal arguments against the FTT’s decision following a reference by the Upper Tribunal to the European Court of Justice, HMRC argued that it followed from the ECJ’s judgment that the FTT had erred in law in holding that FOBTs and Part III machines were “similar”.  The Upper Tribunal agreed with HMRC that the FTT had gone wrong by (a) applying a “high level of abstraction” test (previously laid down by Norris J himself in an earlier ruling in the case) rather than the test laid down by the ECJ, which was to examine “the relevant or significant elements or circumstances liable to have a considerable influence on the consumer’s decision to play one game or the other”; and (b) regarding differences in stake and prize limits as legally irrelevant to the question of similarity. The question of whether FOBTs and Part III machines were similar, applying the correct test, has been remitted to the FTT for re-determination.

Rank’s is the lead case in a large number of claims for repayment of VAT imposed on Part III machines over the years leading up to 2005: the claims are estimated to be worth many hundreds of millions of pounds.  The Upper Tribunal’s judgment will not only be important for these cases but also for other cases where taxpayers seek to argue that different tax treatment of similar products infringes the principle of fiscal neutrality.

George Peretz and Laura Elizabeth John acted for HMRC; Paul Lasok QC and Valentina Sloane acted for Rank.

Click to read the judgment in HMRC v Rank

Michael Bowsher QC is to address the Government Contracts Year-In -Review Conference in Washington DC.

Michael will be joining an hour-long panel, addressing “Anti-Corruption Internationally: Challenges in Procurement Markets Abroad” and how the UK Bribery Act is being implemented.

Thomson-Reuters/West Publishing annually hosts the conference, which is the largest event for government contracting lawyers and professionals in the United States.  It is a summary of the prior year’s key developments in procurement law.

The conference is taking place on 19^th February 2013 at the Omni Shoreham Hotel, Washington, DC.

Faced with a constant rise in the number of cases dominated by references for a preliminary ruling, the Court of Justice is adapting its rules of procedure to ensure that the particular features of those cases can more readily be taken into consideration, while at the same time strengthening its ability to dispose within a reasonable period of time of all the cases that are brought before it.

In recasting its rules of procedure, which will enter into force on 1 November 2012, the Court seeks primarily to adapt to the changes in its caseload. The new measures are designed to reflect the fact that references for a preliminary ruling from the courts and tribunals of the Member States represent, quantitatively, the primary category of cases brought before the Court.  The new rules of procedure devote a separate title to such references, while making the rules in that title both clearer and more comprehensive, for litigants as well as for national courts and tribunals.

A second key objective of the recasting of the rules is to encourage cases to be dealt with swiftly and efficiently. Those measures include, in particular, the possibility of the Court adopting a decision with a view to limiting the length of written pleadings or observations lodged before it, or the relaxation of the preconditions for the Court’s adoption of a reasoned order, particularly where the answer to the question referred by a national court or tribunal for a preliminary ruling admits of no reasonable doubt.

In addition to the pursuit of the aforementioned objectives, the new rules of procedure seek to clarify existing rules and practices. Thus, a clearer distinction is drawn between the rules that apply to all types of action and those that are specific to each type (references for a preliminary ruling, direct actions and appeals), while all the articles of the new rules are specifically numbered and headed, making searches easier.

Finally, this recasting of the rules of procedure simplifies the existing rules, either by repealing certain rules that are outdated or not applied, or by revising the procedure for dealing with certain cases.

The Court of Justice remains convinced that, together, these measures offer the best means of enabling the Court to continue to fulfil its task of ensuring that the law is observed in the interpretation and application of the Treaties within a reasonable period of time.

To read the full Rules of Procedure, please click here

Monckton Chambers has been featured in an article in The Lawyer. ‘Get set, go’ interviews Paul Lasok QC, Melanie Hall QC, Tim Ward QC, Paul Harris QC, Daniel Beard QC and Senior Clerk, David Hockney, discussing ‘the rise and rise’ of Monckton Chambers.

To read the full article, please click here.