[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.

The Constitutional Court of South Africa has handed down judgment in two important cases.  David Unterhalter SC successfully represented the respondents in each case – both against the Competition Commission.

In Competition Commission v Yara South Africa and Others David successfully defended an appeal from the Commission in relation to an earlier Competition Appeal Court (CAC) decision which found that the Commission was not entitled to amend a complaint so as to introduce a new complaint or new respondent unless a fresh complaint alleging this had been properly initiated.  The judgment concluded that even if the application was allowed, it was not in the interests of justice to grant the Commission leave to appeal directly to the Constitutional Court.

Competition Commission v Loungefoam and Others saw the Commission appeal the whole judgment of the CAC.  The Court considered similar factors as those in Yara and found that the Commission had failed to seek leave from the CAC before approaching the Constitutional Court and showed no compelling circumstances that would justify a direct appeal.

The Constitutional Court dismissed both applications.

Please click below for the relevant judgment.

 

Competition Commission v Yara

 

Brendan McGurk acted on behalf of Team GB’s Winston Gordon in persuading the British Judo Association to overturn its decision (which it had upheld further to an appeal) to select another player ahead of Mr Gordon for London 2012. The case has obvious parallels with the Aaron Cook case, in particular since (i) Mr Gordon is also the British number one in his weight division and (ii) since the decision to reverse the original selection required the involvement of the British Olympic Association who, on further consideration of the selection criteria with the British Judo Association, accepted that the athlete who had previously been selected was ineligible under the International Judo Federation eligibility rules.

Mr Gordon has now been formally nominated by the BJA to the BOA, and is delighted to have the opportunity to compete in his home games.

Raymond Hill has been working 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.

Thousands of women and girls were imprisoned in ten Laundries operated by four religious orders from Irish independence in 1922 until the closure of the last Laundry in 1996. The reasons why they were sent there varied – including unmarried pregnancy, male sexual abuse, disability and petty crime. In virtually every case, the women and girls were imprisoned without court sanction and without any certain date of release – many stayed for life and were buried in the Laundry grounds. Those who escaped were likely to be returned to the Laundries by members of An Garda Síochána (Irish police force). While imprisoned, the girls and women worked in the nuns’ commercial laundries for no pay. For those who left, even today their state pensions fail to reflect those years of unpaid work.

Raymond has been working with JFM to collect evidence of Irish State involvement in the Laundries for submission to an Irish inter-departmental committee of inquiry headed by Senator Martin McAleese.  On 24 May, the submissions he drafted with Professor James Smith of Boston College, Massachusetts, were presented to every member of both Houses of the Oireachtas (Irish Parliament). This was reported in the Irish Times on 25 May . On 28 May, a further submission which Raymond drafted with Professor Smith and Ms Maeve O’Rourke was presented to the United Nations Committee on Torture.

Brendan McGurk was part of the counsel team that successfully defended Collyer Bristow Solicitors against an alleged £50 million investment fraud. The litigation – known as the Innovator litigation – was a class action claim heard by Mr Justice Hamblen over 4 months in the Commercial Court, brought by more than 550 High Net Worth Investors, each of whom invested substantial sums into one or more of the Innovator Technology schemes. Investors had sought to avail of a very generous tax break under the Capital Allowances Act 2001, designed to encourage investment in British start-up technologies. Investors borrowed 80% of their investment and became partners in LLPs which would acquire and oversee the exploitation of particular technologies. Collyer Bristow acted for Innovator Plc, the company that brought these technology schemes to the investment market. In the event, none of the schemes succeeded and HMRC refused to allow full relief on the geared investments. Investors alleged that Innovator was an elaborate fraud and further alleged that two former partners of Collyer Bristow had either conspired to defraud investors or dishonestly assisted in breaches of trust said to consist in the payment away of investment monies. A series of other claims were brought, including under sections 26-30 of the Financial Services and Markets Act 2000 (“FSMA 2000”). The claims failed in their entirety.

The decision is important in so far as it contains a much-needed discussion of what satisfies the definition of a ‘collective investment scheme’ under section 235 of FSMA 2000. The decision is also important in so far as it clarifies the relationship between the remedial structure contained within FSMA 2000 and common law claims that might be brought in light of alleged breaches of duty under the FSMA scheme.

Click to read the judgment in Brown v Innovator

The case has been reported in the press.

If you would like further information on the Judgment, please contact Brendan.