Michael Bowsher QC, Kassie Smith and Valentina Sloane represented the interveners NHS Shared Business Services Ltd (NHS SBS) and the Secretary of State for Health in the successful defence of a  judicial review challenge brought by the trade union, UNISON.  UNISON claimed that the proposed outsourcing of administrative functions of 10 primary care trusts to a private contractor, NHS SBS in a cost saving exercise failed to comply with EU public procurement rules.  UNISON challenged the Trust’s argument that they would be able to call off the proposed contracts as the subject-matter and terms differed to those set in the framework agreement.

Mr. Justice Eady held that a breach of the Public Contracts Regulations 2006 could affect the members of a union so that remedies could be sought through public law.  However, he refused permission to UNISON on the basis that it lacked standing and was out of time.  He considered but declined to apply the Court of Appeal’s obiter judgment on standing in the Chandler case.

Michael Bowsher QC and Valentina Sloane represented the interveners NHS Shared Business Services Ltd.

Kassie Smith represented, as the second intervener, the Secretary of State for Health.

Click to read the judgment in Unison v NHS

Yesterday, the Administrative Court dismissed a challenge to the lawfulness, under EU law, of the Government’s decision to stop imports of goods by mail order from the States of Jersey and Guernsey (“the States”) into the UK from being VAT free. The Chancellor will table resolutions intended to achieve this aim on 21 March 2010 (the date upon which the Budget is announced), and it is anticipated that the resolutions will pass into law on 26 March 2012.

The States are not part of the EU for the purposes of the harmonised VAT union. Ordinarily, therefore, imports from the States into the UK should be subject to VAT upon entry.

For the purposes of administrative simplification, however, Article 23 of Directive 2009/132 provides that imports which have a low or negligible value can be exempt from VAT, which is referred to as Low Value Consignment Relief (“LVCR”). The threshold currently set by the UK Government is £15. Critically, under Article 23 the Member States retain the power to exclude mail order goods from the ambit of this exemption.

LVCR gives a plain competitive advantage to traders importing goods into the UK from or via the States, and consequently a mass fulfilment industry has developed. This industry covers a wide range of products, including CDs/DVDs, plants, video games, household appliances, stationery and health supplements. The industry’s estimated value is £500 million a year.

The States commenced an urgent judicial review against the decision on 20 December 2011. During the expedited trial which started on 13 March 2012, the States argued inter alia that: (a) Article 23 only granted the EU Member States an “all or nothing” or binary power i.e. they could only remove LVCR from all non-EU countries or let all such countries enjoy the exemption; and (b) the decision breached the principles of equal treatment and fiscal neutrality because the UK would be treating the States’ imports differently from imports coming from other non-EU countries such as Taiwan or Switzerland.

The association called Retailers Against VAT Avoidance Schemes (“RAVAS”) was granted permission to submit evidence about and make written submissions in support of the Government. RAVAS submitted evidence showing that traders operating through the States are engaging in abusive practices, and that the LVCR is having a hugely detrimental impact on UK-based retailers.

The Court rejected the States’ application for judicial review because Article 23 of the Directive granted the Member States an unfettered discretion to exclude mail order goods from LVCR. Further, as the States are not members of the EU the principles of fiscal neutrality and equal treatment do not apply to them. The Court’s judgment means that the Government is free to press ahead with tabling the resolutions removing the exemption from the States on Budget day.

The Administrative Court granted the States permission to appeal on the basis that the case raised important issues, and, accordingly, it was appropriate for a higher court to hear the case.

The case has been widely reported in the press.

Valentina Sloane and Julianne Stevenson represented RAVAS.

Chambers takes great pleasure in welcoming Julianne Stevenson.  Julianne joins Chambers having successfully completed a six-month pupillage. As a pupil, Julianne gained experience of all Chambers’ main practice areas – including public law, competition law, European law, public law, procurement, commercial law and VAT.

Prior to joining, Julianne obtained a first class degree in Law with Advanced Studies from UCL where she was first in her year.  She was awarded a number of prizes during her undergraduate studies, including the Andrew’s Medal for being the top finalist in law at University College of London (2008), the Sweet & Maxwell prize for excellence in overall degree performance (2008); and prizes for her academic performance in each year of her degree.

Julianne studied at Harvard Law School where she obtained an LL.M with a concentration in International Human Rights.  She was awarded a Queen Mother’s Scholarship by the Middle Temple to study the BVC, and, accordingly, in 2009 to 2010 Julianne completed that course at BPP. Alongside her studies at BPP, Julianne was a tutor of public law and human rights at UCL.

Julianne comments:

“I am delighted to be joining Monckton Chambers and so to have the opportunity to develop a diverse practice across Chambers’ wide range of specialist areas.”

Philip Moser who has recently taken Silk has been admitted as a Fellow of the European Law Institute.  The ELI is an independent non-profit organisation established to initiate, conduct and facilitate research, make recommendations and provide practical guidance in the field of European legal development.

To learn more about the ELI and its functions, please click here.

The Court of Appeal has today dismissed a challenge to the lawfulness, under EU law, of the provisions of the Digital Economy Act 2010 aimed at requiring internet service providers (ISPs) to help reduce illegal ‘peer to peer’ file-sharing.

Under the controversial Act, Ofcom must make a Code requiring ISPs to notify their subscribers of alleged instances of online copyright infringements, and to compile lists to allow copyright owners to identify repeat offenders. The Act also makes provision potentially to require ISPs to take “technical measures” against the most serious copyright infringers, such as to limit their use of, or even to terminate, their internet connections.

The challenge was brought by two major ISPs, BT and TalkTalk, who argued, inter alia, that the imposition of requirements on ISPs under the Act would breach EU law, because the Act had not been notified in draft to the European Commission under the Technical Standards Directive, and the requirements would be incompatible with EU Telecoms Directives (including the E-Commerce Directive, the Privacy and Electronic Communications Directive, and the Authorisation Directive). After the challenge failed in the High Court in April 2011, the ISPs appealed to the Court of Appeal.

The Court of Appeal rejected the challenge to the Digital Economy Act in full.  However, the Court found for the ISPs on one minor ground of challenge, which related not to the Act itself, but to proposed rules requiring ISPs (as well as copyright holders) to contribute towards the costs of the body that will hear appeals from subscribers against copyright infringement notifications.  The Court’s judgment means that the Government is free to press ahead with implementing the Digital Economy Act regime.

The ISPs have not yet said whether they will seek permission to appeal to the Supreme Court.

Robert Palmer and Alan Bates represented the Secretary of State for Culture, Olympics, Media and Sport (the Respondent).

On 2 March 2012, the High Court (Henderson J) gave judgment in Investment Trust Companies (in liquidation) v HMRC [2012] EWHC 458 (Ch).  Between 1990 and 2002, the claimants paid sums to managers by way of VAT on supplies of investment management services.  The managers accounted for and paid sums by way of VAT to HMRC, after deducting attributable input tax.  In 2007, the ECJ held in JP Morgan Claverhouse that the managers’ supplies should have been exempt.  The managers made claims for repayment under section 80 of the VAT Act 1994.  HMRC repaid to the managers the over-declared output tax (referred as the £100), less the over-claimed input tax (referred as the £25); claims in respect of the periods from December 1996 to 2002 were time barred by s.80(4) VATA (referred to as the “Dead Period”).  The managers passed the sums back to the trusts (i.e. £75 for uncapped periods, £0 for the Dead Period).  The trusts brought direct mistake-based restitution claims against HMRC for restitution of the £25 (uncapped) and £100 (Dead Period).

The court held (1) that as a matter of common law, the claimants had direct mistake-based restitution claims against HMRC;  (2) that such claims were excluded by section 80(7) VATA; (3) that, following the ECJ’s decision in Reemtsma and Danfoss,  EU law required the claimants to have a direct claim against HMRC for payment of the £25 in respect of uncapped periods, but not for payment of the £100 in respect in respect of the Dead Period; and (4) whether the national court had to disapply the statutory exclusion to permit a mistake-based restitutionary claim (which would allow claims going back to 1990) or only a “Woolwich” claim (in which case most claims would be statute-barred) would be stayed pending the Supreme Court’s judgment in the Franked Investment Income (FII) litigation and the ECJ’s judgment in Littlewoods.

On 2 March 2012, the High Court (Henderson J) gave judgment in Investment Trust Companies (in liquidation) v HMRC [2012] EWHC 458 (Ch).  Between 1990 and 2002, the claimants paid sums to managers by way of VAT on supplies of investment management services.  The managers accounted for and paid sums by way of VAT to HMRC, after deducting attributable input tax.  In 2007, the ECJ held in JP Morgan Claverhouse that the managers’ supplies should have been exempt.  The managers made claims for repayment under section 80 of the VAT Act 1994.  HMRC repaid to the managers the over-declared output tax (referred as the £100), less the over-claimed input tax (referred as the £25); claims in respect of the periods from December 1996 to 2002 were time barred by s.80(4) VATA (referred to as the “Dead Period”).  The managers passed the sums back to the trusts (i.e. £75 for uncapped periods, £0 for the Dead Period).  The trusts brought direct mistake-based restitution claims against HMRC for restitution of the £25 (uncapped) and £100 (Dead Period).

The court held (1) that as a matter of common law, the claimants had direct mistake-based restitution claims against HMRC;  (2) that such claims were excluded by section 80(7) VATA; (3) that, following the ECJ’s decision in Reemtsma and Danfoss,  EU law required the claimants to have a direct claim against HMRC for payment of the £25 in respect of uncapped periods, but not for payment of the £100 in respect in respect of the Dead Period; and (4) whether the national court had to disapply the statutory exclusion to permit a mistake-based restitutionary claim (which would allow claims going back to 1990) or only a “Woolwich” claim (in which case most claims would be statute-barred) would be stayed pending the Supreme Court’s judgment in the Franked Investment Income (FII) litigation and the ECJ’s judgment in Littlewoods.

The Court of Justice has given judgment following a reference for a preliminary ruling under Article 267 TFEU from the Supreme Court in O’Brien v Ministry of Justice (Council of Immigration Judges intervening), Case C-393/10, 1 March 2012.

The case concerns the refusal by the Ministry of Justice to pay Mr O’Brien a pension in respect of his service as a Recorder, which is alleged to be discrimination contrary inter alia to the Part-time Workers Directive (“PTWD”). The PTWD is implemented in the UK by the Part-time Workers Regulations (“PTWR”). Regulation 17 of the PTWR, entitled “Holders of judicial offices”, provides that the regulations do not apply “to any individual in his capacity as the holder of a judicial office if he is remunerated on a daily fee-paid basis”.

The Council of Immigration Judges, representing several hundred daily fee-paid judges, intervened in the Supreme Court and also made oral submissions in Luxembourg.

The following questions were considered by the ECJ:-

(1) Is it for national law to determine whether or not judges as a whole are “workers who have an employment contract or employment relationship” within the meaning of clause 2.1 of the PTWD, or is there a Community norm by which this matter must be determined?

(2) If judges as a whole are workers who have an employment contract or employment relationship within the meaning of clause 2.1 of the PTWD, is it permissible for national law to discriminate (a) between full-time and part-time judges, or (b) between different kinds of part-time judges in the provision of pensions?

As to the first question, the Court of Justice held that European Union law must be interpreted as meaning that it is for the Member States to define the concept of “workers who have an employment contract or an employment relationship” in Clause 2.1 of the PTWD, and, in particular, to determine whether judges fall within that concept. However, this is subject to the condition that that does not lead to the arbitrary exclusion of that category of persons from the protection offered by the PTWD.

The Court further held that an exclusion from that protection may be allowed only if the relationship between judges and the Ministry of Justice is, by its nature, “substantially different” from that between employers and their employees falling, according to national law, under the category of workers.

As to the second question, the Court held that the PTWD must be interpreted as meaning that it precludes, for the purpose of access to the pension scheme, national law from establishing a distinction between full-time judges and part-time judges remunerated on a daily fee-paid basis, unless such a difference in treatment is justified by objective reasons, which is a matter for the referring court to determine.

The judgments in the Court of Justice can be found here and in the Supreme Court here.

Tim Ward QC represented the Ministry of Justice in the Court of Justice.

Ian Rogers represented the Council of Immigration Judges in the Supreme Court and in the Court of Justice. He also represents a large number of fee paid judges in different jurisdictions making protective claims.

Monckton Chambers is pleased to announce the appointment of Philip Moser to Queen’s Counsel.  Philip will be formally appointed at the swearing-in ceremony on 30 March.

Called to the Bar in 1992, Philip is regularly instructed in EU law cases, often involving novel or untested points of law. Specialist practices in public procurement, commercial agents’ cases, EU sanctions cases and MTIC fraud have each developed out of his involvement with EU law. He also has particular expertise in Conflict of Laws. Commercial work, often with cross-border elements, complements his specialist areas.

Members and staff warmly congratulate Philip on his success.

Eric Metcalfe acted for the Information Commissioner before the Information Tribunal, successfully resisting a bid to disclose the identity of the individual that donated £50,000 to the Global Warming Policy Foundation, a body which has attracted widespread controversy for its skeptical views on climate change. The donor’s identity had been requested under the Freedom of Information Act, and had the backing of many leading climate scientists. The Tribunal nonetheless upheld the Commissioner’s decision that identity of the donor should not be disclosed, among other things because it would breach the donor’s reasonable expectation of privacy.

To read the full article from The Guardian, please click here.