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

[2010] UKSC 34; [2010] 4 All E.R. 62 (SC No 1)

[2012] 2 C.M.L.R. 25 (CJEU)

9 July 2012 (Preliminary Ruling, SC No 2)

The Supreme Court has determined that a part-time judge falls within the scope of the Part-time Workers Directive, moving fee paid part-time judges a significant step closer to obtaining pension rights.

This was the second hearing in the Supreme Court. It followed a reference to the Court of Justice of the European Union.

At the second hearing in the Supreme Court, the Ministry of Justice argued that both the issue of whether a part-time judge was a “worker” and the question of objective justification should be remitted to the Employment Tribunal.

The Supreme Court will give reasons for its determination that Mr O’Brien was a part-time worker at a later date.

On the issue of objective justification, the Court has not directed an immediate remission to the Employment Tribunal. Remission will be appropriate only if there are significant disputed issues of fact to be determined. Directions have been given to the parties which are intended to enable that issue to be resolved and to make progress with the determination of the appeal. The Council of Immigration Judges has been given permission to serve witness statements and a further supplementary written case.

There will be a further hearing of the appeal on 21 November 2012 to determine what (if any) issues should be remitted to the Employment Tribunal and to decide any issues which are not remitted.

Ian Rogers appeared for the Council of Immigration Judges in the Supreme Court and in the Court of Justice of the European Union.

Ian has also drafted claims for a large number of fee paid part-time judges in the Employment Tribunal under the Public Access Scheme. Short time limits apply to such claims.

Philip Moser QC has been elected a Bencher of the Inner Temple following the Trinity Elections in July 2012.  Membership of the Inner Temple is divided into three categories: Students, Barristers and Masters of the Bench (Benchers).

The Inn is governed by over 200 governing Benchers, who are responsible for managing the property, supervising the finances and deciding the policy of the Inn.

[2012] EWHC 1919 (QB), Sir Raymond Jack sitting as a Judge of the High Court, 11 and 16 July 2012

1. The High Court has given judgment in a sports law dispute between Pontypool Rugby Club and the Welsh Rugby Union (“WRU”) concerning its relegation from the Principality Premiership with effect from September 2012 and the interpretation of League Rules setting out three criteria for qualification: an A Licence, signing a Participation Agreement and “meritocracy”. Pontypool were required to undertake substantial works to their grandstand by the WRU, removing seats and installing crush barriers. This involved considerable expenditure by Torfaen Council as well as private funds, working closely with the WRU Compliance Department. The works had to be completed by the League Rules deadline of 31 August 2011 in order to be awarded an A Licence, which Pontypool achieved just in time. Pontypool were denied a place in the new ten Club League and were later informed by the WRU that in fact it could never have been eligible in any event by reason of the WRU’s interpretation of “meritocracy”. Pontypool brought an appeal on the basis that other Clubs did not have covered terracing for 1000 spectators (“Criterion 7”), which is a mandatory A Licence requirement, and that the WRU had not followed its own Rules which stated, in relation to the assessment of Criterion 7, “Independent assessor to be appointed – Survey, led by Green Guide requirements.” Nearly three months after the WRU announced the outcome of the selection process, it announced that two other Clubs would be added to the League: Bridgend and Carmarthen Quins. This was the result of pressure from third parties linked to these Clubs who agreed to fund them. There was to be no possibility of promotion to the new Premiership for at least two years and Pontypool became the only applicant Club excluded from the semi-professional game.

2. The case has established the following points upon which Pontypool now rely in its claim to be selected for the Premiership in accordance with the League Rules as the WRU informed the Court they would be varied:-

(i) Pontypool does have a contractual right to be admitted to the Premiership if the Club satisfies the three criteria, rejecting the WRU’s argument that there is no contract;

(ii) Pontypool’s interpretation of the “meritocracy” criterion is the correct one: if more than 10 Clubs achieved an A Licence and signed the Participation Agreement, selection of the 10 Clubs would be decided in the order of the meritocracy rankings. The WRU argued that the meritocracy criterion means that if a Club finished outside the top ten in its meritocracy rankings, then it was necessarily ineligible for the Premiership;

(iii) the WRU had “developed” the contrary argument “in the light of the dispute” with Pontypool, a founder member of the WRU;

(iv) the WRU’s appeal body decision was consistent with it having misdirected itself as to the proper meaning of the meritocracy provision and the basis for its decision was unclear. The Court declined to find a breach of duty and considered that the point had not been pleaded, although Pontypool had in fact pleaded that the appeal body “proceeded on the basis of a misdirection as to the operation of the meritocracy criteria”;

(v)  The WRU’s Board had no power to act in the way it did in relation to the appeal body’s decision. The appeal body recommended that all Clubs’ grounds be independently assessed immediately, given the evidence produced by Pontypool from local authorities which it relied upon to show that Swansea, Bedwas and Cross Keys did not have the required covered terracing safely to accommodate 1000 spectators (required to obtain an A Licence) and that their statements of truth in support of their applications were therefore false. The appeal body’s decision was not communicated to Pontypool until the Board had intervened and reviewed it. The Board overturned the recommendation for independent assessments but otherwise upheld the dismissal of the appeal;

(vi) The WRU argued that Pontypool could not complain about the WRU’s treatment of another Club in relation to the A Licence assessment, but again the Court found in favour of Pontypool, implying terms to the broad effect that there should be fairness as between clubs as they are treated by the WRU. This permitted such a challenge to be made both in contract and under the non-contractual supervisory jurisdiction of the courts over sports governing bodies.

(vi) If the allegations against the three Clubs, based on independent evidence from the local authorities for the three Clubs, are correct, the Court held it would be “a matter of concern”. The WRU sought formal responses from Swansea, Bedwas and Cross Keys only after dismissing the appeal of Pontypool (some ten months after they were drawn to the WRU’s attention by Pontypool). The WRU delayed announcing the outcome until after the trial. The Court held that it is now for the WRU to determine the consequences of its enquiries into the three Clubs. Pontypool had been found in breach of its A Licence shortly after it appealed. Its A Licence was summarily revoked without a hearing and it took six months for it to be reinstated on appeal. The Court has held that an A Licence is a mandatory requirement for selection. The WRU will now proceed to determine the consequences for the three Clubs in accordance with the judgment and the League Rules.

(vii)  the Board’s reversal of its position to accede to the Ospreys and Scarlets’ requests to choose a Club of its choice to add to the Premiership after the selection process was completed was “unfortunate” and “a result of pressure” from those Clubs. They agreed to pay for these Clubs, to which they were linked. The Court accepted Pontypool’s argument that this decision was not in accordance with the League Rules, and that the WRU would have to vary the contract if it wished to give effect to this decision.

3. At trial the WRU produced and relied upon draft rules to vary the League Rules. However, the proposed rules merely increase the number of Clubs in the Premiership from 10 to 12, and otherwise continue to provide that selection is to be determined by the existing three criteria.

4. The judgment binds the WRU in its application of the League Rules – henceforth to be properly interpreted by the WRU – to determine the composition of the Premiership. It enables the parties to work out their respective legal rights in light of the correct interpretation of the League Rules and in the knowledge that their relationship is subject to contractually enforceable rights, as Pontypool contended. As Pontypool has an A Licence and Carmarthen Quins does not, Pontypool is the 12^th highest ranked Club in order of meritocracy and claims to take its place in the Premiership when fixtures are shortly announced, on the basis of the findings in the judgment as applied to the Rules as the WRU informed the Court they would be varied. The Court considered that it did not need to determine this issue, but found that Pontypool’s success on the meritocracy issue was an important point for the Club which might have consequences for the future.

5. Pontypool have openly called for an immediate mediation with the WRU and the affected Clubs to reach an agreement as to the application of the League Rules in accordance with the judgment.

Click to read the judgment in Park Promotion Pontypool Rugby Club

In a judgment handed down today in the case of R(MA and SJ) v. Cabinet Office and Statistics Board, Mr Justice Beatson has rejected a challenge brought by two individuals to the legislation governing the UK census.  The individuals, one of whom was a refugee, argued that the legislation infringed their rights under Article 8 of the European Convention on Human Rights (dealing with privacy) since it permitted disclosure of census returns to foreign governments for the purpose of criminal investigations or proceedings.  They sought a declaration that the legislation was incompatible with Article 8.  One of the individuals had refused to complete a census return and maintained that the claimed infringement of Article 8 gave him a defence to prosecution for failure to make a return.

The High Court rejected the individuals’ claims.  It agreed with the Government’s submissions that the Data Protection Act 1998, the Statistics Board’s policy of resisting disclosure save where ordered by a court, and the obligation on the Board to act consistently with Convention rights, together provided sufficient protection of census data to comply with Article 8.  It also rejected the claimants’ arguments that the census legislation infringed the EU Data Protection and Asylum Directives.

The judgment is likely to put to rest attempts by a number of individuals prosecuted for non-completion of census returns to mount a “human rights” defence based on a claimed infringement of Article 8.

George Peretz acted for the successful Government departments.

To read the full judgment, please click here.

 

The Competition Appeal Tribunal (the “CAT”) has handed down judgement in the first follow damages claim to be brought before it under Section 47A of the Competition Act 1998.

In 2 Travel Group Plc (In Liquidation) v Cardiff City Transport Services Limited Michael and Anneliese represented 2 Travel who were claiming damages against Cardiff Bus,  a company wholly owned by Cardiff Council,  following a decision by the OFT that Cardiff Bus had abused their dominant position by engaging in predatory conduct. The CAT awarded damages for loss of profit in favour of 2 Travel.

The CAT also uniquely awarded 2 Travel exemplary damages. The CAT held that:

“We find that Cardiff Bus’ behaviour is only consistent with that of an organisation that had deliberately decided to disregard the law, and that this conduct was done in cynical disregard of 2 Travel’s rights.”

This is the first English case in which exemplary damages have been awarded for a breach of competition law.

Click to read the judgment in 2 Travel Group Plc v Cardiff City Transport Services

London Welsh will play in rugby’s Premiership next season after an independent appeal panel including Tim Ward QC allowed their appeal.  London Welsh had been refused promotion by the RFU on the grounds that they had failed to satisfy certain provisions of the Minimum Standards Criteria for promotion.  The appeal panel held that some of those Criteria gave rise to an unjustified restriction of competition and were void.