An Opinion co-authored by Eric Metcalfe for the Equality and Human Rights Commission has advised that the proposed extension of controversial Closed Material Procedures under the Justice and Security Bill would be incompatible with the right to a fair trial under article 6 of the European Convention on Human Rights.

The Commission launched the opinion at a briefing meeting for Peers in the House of Lords on 31 October. The Commission has a statutory duty under section 11 of the Equality Act 2006 to monitor and advise on the effectiveness of equality and human rights law and the likely effect of a proposed change of law. The Bill will be reported back to the House on 19 November.

The Equality and Human Rights Commission press release

The launch of the opinion was also reported in:

The Guardian

The Daily Telegraph

On 30 and 31 October 2012, the Supreme Court heard the appeal in the case of X v Mid Sussex Citizens Advice Bureau and others.  Kassie Smith appeared for the Secretary of State before the Supreme Court.

The Court considered the following issues: (1) Whether the Framework Directive (Directive 2000/78/EC Establishing a Framework for Equal Treatment in Employment and Occupation) applies to volunteers? (2) If it does, whether its provisions can receive direct effect in domestic law between private parties?

The Appellant worked as a volunteer adviser at the Citizens’ Advice Bureau (“CAB”). She was not contractually bound to work and received no remuneration for doing so. Although volunteers often do go on to become employed by the CAB as paid advisers, this is not automatic. There is an open, external recruitment process for paid posts and volunteering arrangements were not for the purpose of determining to whom employment should be offered. The Appellant alleges that, after she informed the CAB that she was HIV positive, she was told that she could not return to work. She claims disability discrimination. As a preliminary issue, the Employment Tribunal determined that the Appellant was not within the scope of the Disability Discrimination Act’s definition of “employment”, because it did not cover voluntary work. The Appellant’s appeals to the Employment Appeal Tribunal and the Court of Appeal, where argument focused more on the terms of the EC Framework Directive, were unsuccessful.

The judgment of the Supreme Court was reserved and will be handed down in due course.

Barclays became the first bank to be ordered to stand trial in a British court over damages stemming from manipulation of the Libor interest rate after a High Court ruling on Monday 29 October 2012.  Guardian Care Homes, a residential care home operator based in Wolverhampton, is suing Barclays for up to £ 37 million over the alleged mis-selling of interest rate hedging products known as swaps.  Mr Justice Flaux rejected Barclays attempts to oppose introduction of the Libor misselling claims.

Guardian Care Homes was also granted permission to introduce a claim alleging that Barclays acted in breach of Article 101 TFEU resulting from Libor manipulation.  That claim was stayed by consent pending the European Commission’s investigation into alleged cartel activities relating to the setting of Euribor and Libor by a number of banks.

The trial is likely to act as a test case for thousands of small British firms who believe they were mis-sold such swaps.

The hearing has been reported in:

Reuters

The Telegraph

Channel 4 News

The Financial Times

Kassie Smith is acting for Guardian Care Homes Limited on the competition law issues.

Click to view the judgment in Graiseley Properties Limited v Barclays Bank

The Supreme Court has handed down judgment in the first competition case to come before it, BCL Old Co. Ltd v BASF plc [2012] UKSC 45.

The case concerned the date on which time begins to run for the purposes of the two year limitation period for bringing follow-on damages claims in the Competition Appeal Tribunal, under section 47A Competition Act 1998.  The Supreme Court considered whether the interpretation of section 47A adopted by the Court of Appeal in BCL Old Co. v BASF plc [2009] EWCA Civ 434, together with the interpretation of the Competition Appeal Tribunal’s Rules adopted in BCL Old Co. v BASF plc. (No. 2) [2010] EWCA Civ 1258, was sufficiently foreseeable and clear to potential claimants to comply with the European law principles of effectiveness and legal certainty.

Christopher Vajda QC and Laura Elizabeth John appeared for the Appellants.

To read the judgment, please click here.

Monckton Chambers are delighted to announce that Meredith Pickford was awarded “Junior of the Year” for EU and Competition law at the annual Chambers Bar Awards held at the Hilton, Park Lane.

Congratulations to Meredith.

The new 4^th edition of ‘EU Merger Regulation: Substantive Issues’ by Alistair Lindsay and Alison Berridge of Monckton Chambers has been published.

‘EU Merger Regulation: Substantive Issues’ provides a detailed guide to the analysis of mergers by the European Commission. Fully revised for 2012, the comprehensive text describes how the Commission determines whether to approve a notified concentration, providing all the necessary information and techniques to secure clearance for mergers in the EU.

It is an essential read for any lawyer or regulator involved in the approval process, providing the most comprehensive and navigable guide available to the substantive analysis at the heart of EU merger control. The text includes a wide-ranging review of the Commission’s decisional practice, guidance and other publications, decisions of the European Courts, economic thinking and international comparisons to provide authoritative guidance on:

• The legal context in which the Commission’s analysis is carried out
• The way in which fundamental concepts such as market definition, market operation and the Commission’s forward-looking analysis are applied
• The theories of harm likely to be raised against a merger and relevant counter-arguments and defences
• The economic theories underlying the Commission’s analysis
• The categories of evidence canvassed before the Commission
• The types of remedies accepted to deal with specific issues

The 4th edition also analyses new developments including the approach taken by the new European Commission (as of 2010) and the influence of the revised US horizontal merger guidelines.

To purchase the book, or for more information, please click here

George Peretz of Monckton Chambers has had an article published in the latest edition of the Tax Journal.

In the article, George analyses the different ways in which taxpayers can seek to complain about differences in tax treatment in EU Law, including fiscal neutrality, State aid law and Article 110 of the TFEU.

To read the article in full, please click here.

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.