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.

The Court of Appeal has upheld an earlier CAT ruling that that OFT could scrutinise Ryanair’s minority shareholding in Aer Lingus.

Back in 2006 Ryanair built up a 30% stake in rival Irish airline  Aer Lingus and then went on to make a public bid for the rest.  The EU Commission scrutinised the deal and said Ryanair could not own Aer lIngus: the bid was blocked.  But the Commission did not require Ryanair to sell down its 30% stake.

Ryanair appealed this decision to the General Court in Luxembourg saying it should have been allowed.  Aer lingus appealed saying the Commission should have required the 30% to be sold.

In the meantime, Aer Lingus turned to the OFT claiming that even if the EU Commission could not require sale of the 30%, under UK merger control law, it gave “material influence” to Ryanair and should be scrutinised by the UK authorities.

The OFT did not take any steps until the appeals in Luxembourg were completed some 3 years later.  At that point Ryanair said the OFT was out of time.  The OFT disputed Ryanair’s challenge saying it could not act because to do so would risk cutting across the “one-stop-shop” merger control regime that operates at an EU level.  The Court of Appeal has upheld the OFT’s approach and concluded that the “duty of sincere cooperation” between the UK and EU meant that it was right to hold off its scrutiny until the EU court process was at an end.

Daniel Beard QC and Julian Gregory acted for the OFT.

Click to view the judgment in

The Campaign for Clean Air in London had requested disclosure under the Environmental Regulations 2004 of documents relating to a meeting between the Mayor of London and the Secretary of State for the Environment in 2009 about air quality in London, and the government’s application to the European Commission for a time extension for the UK to comply with legal standards on dangerous airborne particles (PM10) under European Directive 2008/50/EC on Ambient Air Quality and Cleaner Air for Europe.  After proceedings in the Court of Appeal on the question of whether Defra had a right to raise a new exemption before the  First Tier Tribunal that it had not relied on previously, Defra decided to disclose the disputed information.

Simon Birkett, Founder and Director of CCAL said:

“I would like to thank leading barristers Gerry Facenna and Laura Elizabeth John who provided pro bono advice and without whom none of this information would ever have been released.  They have been fabulous.”

Eric Metcalfe has been appointed as a Fellow of the Bingham Centre of the Rule of Law. The Centre was founded in 2010 in honour of Lord Bingham of Cornhill and aims to carry out original research, analysis and discussion of rule of law issues. To learn more about the Bingham Centre, please click here.

Melanie Hall QC is the latest to feature in the Tax Journal’s ‘One Minute with’ section.  The feature, which interviews the great and the good of the tax profession is designed to provide insight and a little light relief from the technical detail found in the rest of the publication.

To read the interview in full, please click here.

The Ukrainian Parliament adopted a new Code of Criminal Procedure (CPC) as part of steps to modernise its criminal justice system and to fulfil its commitments under European and International Human Rights Law.  The Code was prepared with the assistance of Jeremy McBride, who acted as an expert for the Council of Europe in this reform endeavour.

The CPC was adopted by the Verkhovna Rada (Ukrainian Parliament) on Friday following requests made by European bodies for improvements in the way criminal proceedings are handled in Ukraine. It is a further symbol of the democratic development of Ukraine, its respect for the rule of law and its adherence to European values, and was carried out with the particular support and encouragement of the Council of Europe Group of States against Corruption (GRECO) and the Parliamentary Assembly of the Council of Europe (PACE).

Whereas the previous code granted too much power to the State prosecution and law enforcement bodies, the new code balances the powers of the defence and prosecution as well as introducing the concepts of house arrest, a reduction in the period of detention and a form of  trial by jury.

We are pleased to announce the arrival of Brendan McGurk to Chambers. Brendan who joins us from 4 New Square has a broad commercial and public law practice and regularly appears in the County Courts and the High Court.

Brendan has particular expertise in disputes with a private law/public law overlap and is regularly instructed in Utilities, Procurement, European, Environmental and Sports Law matters. His commercial practice encompasses Insurance, Civil Fraud, Product Liability and all areas of Professional Liability. He is developing a strong Financial Services practice and has advised and acted in a number of claims for and against Independent Financial Advisors.

He obtained First Class Honours as an Undergraduate at Cambridge and as a BCL Postgraduate at Oxford. His D.Phil was supervised by Professor John Gardner and is entitled ‘The Rule of Law in the Regulatory State’. He was short-listed for a Prize Fellowship at All Souls College, Oxford in 2003, won a Queen Mother’s Major Scholarship in 2004 and a Bar European Group Scholarship in 2006. Before coming to the Bar, Brendan held a lectureship in Constitutional and Administrative Law at Wadham College in Oxford.

Brendan is the co-author (with Mark Cannon QC) of Professional Indemnity Insurance, published in March 2010 by Oxford University Press and has published a number of articles on the law of insurance.

Brendan is currently instructed in Brown & Ors v Innovator Plc and others, ranked in the Top 20 cases for 2011 by The Lawyer in which he is defending a £100 million claim arising out of allegedly fraudulent tax efficient technology investment schemes.

Brendan comments:

“I am extremely pleased to be joining Monckton Chambers and so to have the opportunity to strengthen my commitment to public law while continuing to develop my commercial practice. I look forward to joining a team which is so uniquely placed to offer practical, commercial advice across the regulated sectors.”

David Hockney, Senior Clerk comments:

“I am delighted that Brendan has accepted our offer of tenancy. He has developed a sound practice advising and litigating matters of public law in a commercial context. He will add further depth and experience to our busy commercial and public law stable and I am confident that both his individual and the collective practice will continue to flourish as a result. “