HM Revenue and Customs, represented by Melanie Hall QC, successfully resisted a challenge to the Landfill Tax by hundreds of site operators in the test case Patersons of Greenoakhill v HMRC.
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. Patersons has yet to announce whether it will appeal.
The CAT yesterday rejected Ryanair’s challenge to the Competition Commission’s decision to continue investigating its minority stake in Aer Lingus.
The minority stake was acquired (largely) in 2006, but review under the Enterprise Act 2002 was delayed because the acquisition was under consideration by the European Commission and subsequently the European Courts as part of Ryanair’s 2006 public bid.
A reference was made to the Competition Commission on 15 June this year. On 19 June Ryanair launched a further bid for Aer Lingus – also falling within the jurisdiction of the European Commission – and argued that the review of the minority stake should again be delayed, challenging the Competition Commission’s decision to proceed and the use of its information gathering powers.
It was common ground that, by contrast with the situation in 2006, on this occasion the European Commission did not have jurisdiction to review the minority stake and would consider only the increase in shareholding brought about by the proposed bid.
The CAT held that:
– While European law confers exclusive jurisdiction on the European Commission, this applies only to the extent that it actually has jurisdiction, and could not be read more widely, for example to cover transactions “inextricably linked” to concentrations under review; and
– The Competition Commission’s duty of “sincere cooperation” with the European Union did not preclude it from taking any further steps in the investigation, as Ryanair contended.
Daniel Beard QC and Alison Berridge appeared for the Competition Commission.
Turning Point Limited v Norfolk County Council [2012] EWHC 2121 (TCC)
Mr Justice Akenhead struck out a claim brought by Turning Point Limited against Norfolk County Council in relation to a breach of the procurement regulations in its entirety. Part of the claim was struck out on the basis that proceedings were brought out of time and there was no basis for an extension to be granted. The other part, which related to a suggested obligation on the Defendant to seek clarification of a notation on the face of the Claimant’s tender, was struck out on the basis that there were no real prospects of success.
The claim alleged that the Council had breached procurement law principles and implied contractual terms by failing to provide what it said was sufficient TUPE and pensions-related information to tenderers. The Claimant also challenged the Defendant’s exclusion of the Claimant’s bid on the basis that it had qualified its bid by asserting the right to re-open discussions with the Council on the issue of redundancy costs in certain circumstances.
After considering recent case law, in particular Sita UK LTd v Manchester Waste Disposal Authority [2011] EWCA Civ 156 and Mermec Ltd v Network Rail Infrastructure Ltd [2011] EWJC 1847 (TCC), Mr Justice Akenhead in concluding that the Claimant should not have an extension of time, rejected an argument put forward by the Claimant that an extension sought of 14 days was a short period of time, emphasising that that cannot in itself be a good reason. The legislature had stipulated 30 days, not “30 days plus a reasonable proportionate and short period”. Any good reason for extension of time would usually be something which was beyond the control of the Claimant, including “illness or detention of relevant members of the tendering team”.
Further, there was no requirement on the Defendant in this case to seek clarification of a qualification placed on the face of the Claimant’s bid as to price, which qualification was expressly not permitted by the ITT. The statement was clearly a qualification and nothing about it suggested that it was a clear and obvious error of the kind referred to in Tideland Signal Limited v Commission of the European Communities [2002] ECR II-3781.
Finally, the Court, referring to the recent line of authorities strictly confining the circumstances in which implied contractual terms might arise in the context of public procurement, concluded there was no prospect of success of the Claimant establishing that an implied obligation arose which, inter alia, required the Defendant to comply with certain general principles.
Elisa Holmes represented Norfolk County Council.
The Court of Appeal has today handed down judgment in Deutsche Bahn AG and Ors v Morgan Crucible and Ors [2012] EWCA Civ 1055, concerning the time limits for the bringing of follow on claims in the CAT. The Court has allowed the appeal, with the result that time for the bringing of claims under section 47A of the Competition Act runs from the point at which there can be no further appeal against the infringement decision by any addressee of the Commission’s Decision. The Court thus overturned the Tribunal’s ruling that time for bringing a claim against a particular addressee runs from the point at which that addressee can no longer appeal, on which approach claims against different addressees would have to be brought at different times, depending on whether the addressee appealed or not.
The Court accepted what it described as the “excellent submissions” of Jon Turner QC, who acted with Rob Williams for the Appellants. In essence, the Court found that the relevant “decision”, referred to in section 47A, is the infringement decision generally, as it concerns all addressees, and not an individual decision concerning a particular party. The Court also found that the proper interpretation of the time limit is a question of domestic rather than European law.
The judgment marks a return to an earlier ruling of a differently constituted Tribunal in the Emerson Electric litigation, which came to the same conclusion as the Court of Appeal. The effect of the ruling is to overturn the striking out of the appellants’ claims against Morgan Crucible, so that the damages claims can proceed in the Tribunal. The Court refused Morgan Crucible permission to appeal to the Supreme Court.
Paul Harris QC has successfully represented the Amateur International Boxing Association (AIBA) at the ad hoc Olympic Division of the London Court of Arbitration for Sport (CAS). A CAS Panel composed of Prof. Massimo Coccia (Italy), President, Mr Martin Schimke (Germany) and Ms Maidie Oliveau (USA) dismissed a request for arbitration filed by Irish boxer Joseph Ward who had challenged his non-qualification for the 2012 Olympic Games.
Having not been selected by either by AIBA or by a Tripartite Commission (composed by representatives of the AIBA, the IOC and the Association of National Olympic Committees (ANOC), Joseph Ward considered that the authorities had not properly applied the qualification criteria.
After an urgent hearing that lasted from 9pm until 2am, the Panel ruled that it lacked jurisdiction to deal with Joseph Ward’s application, either as an application under the CAS ad hoc Rules for the Olympic Games or as an appeal under the usual rules of the CAS. The Panel also considered that, even if it had had jurisdiction, the application would have been dismissed on the merits, since Ward would not in any event have qualified as the next best ranked boxer at the 2011 World Championships.
The Divisional Court this morning allowed the appeal of Paul Chambers against his conviction by the Crown Court in Doncaster in relation to a joke made on Twitter. In January 2010, Chambers jokingly threatened on Twitter to blow Nottingham’s Robin Hood airport “sky high”. He was subsequently convicted by Doncaster Magistrates’ Court of making a menacing statement via a public communications network contrary to section 127 of the Communications Act 2003. The conviction was subsequently upheld by the Doncaster Crown Court.
The Lord Chief Justice held that, taking account of the context, it had not been objectively open to the Crown Court to conclude that the tweet had a menacing character.
Eric Metcalfe acted on behalf of ARTICLE 19 which made written submissions in the appeal. The executive director of ARTICLE 19 Agnes Callamard said:
“This is a victory for common sense and freedom of expression online. The right to express ideas and information includes the right to make jokes, even if others may find them unfunny, distasteful or even shocking. The lower courts exaggerated the Tweet and made it into a threat, when it was clearly a joke made in jest. We welcome the Divisional Court’s ruling for the protection it gives to online speech and the freedom to tweet in particular”
Telefonica O2 UK Ltd, Everything Everywhere Ltd, Vodafone Ltd and Hutchison 3G UK Ltd v BT PLC and Ofcom
The Court of Appeal has today decided that the Competition Appeal Tribunal took the wrong approach in considering appeals against determinations made by Ofcom in disputes between BT and the major mobile telephone network operators (“MNOs”).
The disputes related to the prices charged by BT to MNOs for connecting calls to 0800, 0845 and 0870 numbers hosted on its network. Ofcom had found that there was a risk that the new charging structure proposed by BT would lead to a detriment to consumers. However the Tribunal overturned Ofcom’s determinations in August 2011, finding that Ofcom had failed to pay due regard to BT’s contractual rights and that, in the absence of specific ex ante regulatory conditions, Ofcom should not intervene unless consumer detriment could “clearly and distinctly” be shown. On an appeal by the MNOs, the Court of Appeal has now decided that the Tribunal’s approach was wrong in principle: BT’s contractual rights to vary prices were not a relevant factor once a dispute had been referred to Ofcom; dispute resolution is part of Ofcom’s regulatory responsibility for ensuring interconnectivity; and the Tribunal had been wrong to adopt the presumption in favour of non-intervention.
This is the first case in which the Court of Appeal has considered the approach which Ofcom should adopt to deciding disputes under s.185 Communications Act 2003.
Jon Turner QC and Philip Woolfe appeared for Vodafone Limited, Everything Everywhere Limited and Hutchison 3G UK Limited.
Click to view the judgment in Telefonica O2 v BT and Ofcom
Paul Harris QC represented the claimant, Paddy Power, in urgent action against the London Organising Committee of the Olympic and Paralympic Games (LOCOG). LOCOG requested that the bookmaker remove promotional campaign posters as they claimed that the posters breached the London Olympic Association Right.
In fact, the tongue in cheek “We Hear You” adverts related to Paddy Power’s sponsorship of an egg and spoon race in London, Burgundy yesterday.
A spokesperson from Paddy Power said: “We pride ourselves on listening to our customers and what we’ve heard loud and clear is that LOCOG have got their priorities upside-down. It’s a pity they didn’t put the same energy into the ticketing and security arrangements for the Games that they put into protecting their sponsorship revenue streams. We’re taking this fight to the High Court in the interest of our customers and of common sense”
None of the Olympic sponsors are betting companies and the IOC has strict rules on betting being linked to the Olympics.
Paul Harris QC represented the claimant, Paddy Power, in urgent action against the London Organising Committee of the Olympic and Paralympic Games (LOCOG). LOCOG requested that the bookmaker remove promotional campaign posters as they claimed that the posters breached the London Olympic Association Right.
In fact, the tongue in cheek “We Hear You” adverts related to Paddy Power’s sponsorship of an egg and spoon race in London, Burgundy yesterday.
A spokesperson from Paddy Power said: “We pride ourselves on listening to our customers and what we’ve heard loud and clear is that LOCOG have got their priorities upside-down. It’s a pity they didn’t put the same energy into the ticketing and security arrangements for the Games that they put into protecting their sponsorship revenue streams. We’re taking this fight to the High Court in the interest of our customers and of common sense”
None of the Olympic sponsors are betting companies and the IOC has strict rules on betting being linked to the Olympics.
The Newcastle upon Tyne Hospital NHS Foundation Trust v Newcastle Primary Care Trust [2012] EWHC 2093 (QB)
The latest judgment of the High Court on an application to lift the automatic suspension of a procurement process has resulted in a further victory for members of Monckton Chambers. Rob Williams, instructed by Hempsons and acting for four Primary Care Trusts in the North East of England, successfully persuaded Mr Justice Tugendhat that the suspension of a procurement process for diabetic retinopathy screening services should be brought to an end, allowing the PCTs to proceed to award the contract.
The application was in fact made some way into the proceedings. The Defendants had been planning to rely on the incumbent service providers, which included the Claimant, whilst the proceedings were resolved. However, one of those service providers subsequently decided that it was unable to extend the existing arrangements. The Court accepted that it had been reasonable for the Defendants to bring forward an application to lift the suspension at that point in time.
As to the merits of the claims made, the Judge decided that “Mr Williams had very much the better of [the] argument” both as to liability and limitation, but decided the application on the balance of convenience. He found that, although the Claimant hospital had an interest in the quality of service provision, damages would be an adequate remedy for the Claimant in its capacity as an “economic operator”. The Judge also found that it would not be just to put the Defendants in a position where they had no choice but to appoint the Claimant to provide services on an interim basis when they did not consider that to be appropriate course.
Members of Monckton Chambers have now succeeded in five successive applications to lift the suspension of procurement processes subject to regulation 47G.
Click to view the judgment in Newcastle Upon Tyne Hospital NHS Foundation
