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. “

Two Azerbaijan journalists have made an application to the European Court of Human Rights to challenge an effective monopoly of control over the country’s broadcasting system.  Yashar Agazade and Rasul Jafarov, represented by Gerry Facenna, have brought a case regarding the repeated refusal of the Azerbaijan authorities to grant a licence for an independent radio station.

The former Soviet republic controls most TV and radio outlets, while international broadcasters have been banned and nominally independent broadcasters are controlled by those close to the Government. The President also appoints all nine members of the broadcasting regulatory body, the National Television and Radio Council, whose responsibilities include granting broadcast licences.

Agazade and Jafarov argue that the refusal to grant licences to independent broadcasters not only denies their right to freedom of expression under Article 10 of the European Convention but means that Azerbaijan is failing to ensure a pluralistic media landscape, as the Convention requires.

Freedom of speech is officially guaranteed by the constitution, although there is little public debate on political, economic and other vital issues.  The matter has particular urgency because elections are due in 2013, and a favourable decision by the Court could force the government to make media reforms that would allow for more open debate.

Gerry Facenna is instructed by Finers Stephens Innocent, working with the not for profit organisation Media Legal Defence Initiative, which exists to help journalists and media outlets to defend their rights.

On 4 April 2012, Mr Justice Roth, handed down his judgment in National Grid’s application for disclosure, first brought before the court on 15 June 2011, the day after the European Court of Justice’s Pfleiderer ruling.  In its application, National Grid inter alia sought disclosure from the defendants (the GIS cartelists) of relevant parts of documents submitted by them to the Commission which may contain leniency material.

The case was part of the long running follow-on damages claim being brought by National Grid against members of the Gas Insulated Switchgear cartel. The defendants had sought to argue no leniency material should be disclosed even if it was of real assistance to the claimants in pursuing their claim.  The court rejected this approach and carried out a careful analysis of the relevant documents.

The outcome is in contrast to the conclusion of the German court in the Pfliederer case which decided to afford no disclosure of any leniency material notwithstanding the ECJ’s judgment.

The National Grid judgment is already being studied across Europe. The result is another stage in the process of balancing the need for successful prosecution of cartelists by the competition authorities through the use of leniency and empowering litigants to enforce their competition law rights in the national courts

Jon Turner QC and Daniel Beard QC acted for National Grid

Click to read the judgment in National Grid

Daniel Beard QC has been listed in Global Competition Review’s “40 Under 40” feature.  The feature, produced every 4 years sources those young lawyers whose superior technical skill, practical judgment and commitment to the competition sector mark them out as part of the next generation of leading antitrust practitioners.

Daniel explains in the feature that he chose competition law;

“initially by accident – I was interested in EU law and started dealing with competition cases. The first big piece of competition litigation I was involved in was the Premier League/OFT case – even the disclosure was fun on that one. As I got into competition law, the thing I appreciated was the breadth of the subject and the interaction between law and economic thinking. I also like the fact that you have parts of competition law dealing with public enforcement and making markets work, and other parts that are direct private party battles.”

Nokia  has successfully defended applications by Hitachi and Samsung to strike out/summarily dismiss Nokia’s claims in the English High Court arising out of their alleged participation in a cartel that raised the prices of liquid crystal displays (LCD) supplied to Nokia. An application by Nokia to amend its Statement of Case, to particularise the activities of the alleged cartel participants (which included Hitachi, Samsung, Samsung SDI, Sharp, Toshiba and AU Optronics), was also successful.

Click to view the judgment in Nokia Corporation

Christopher Vajda QC, Paul Harris QC and Ben Rayment were instructed by Bird & Bird LLP on behalf of Nokia

Paul Lasok QC and Alistair Lindsay were instructed by Allen & Overy LLP on behalf of Samsung SDI