Mr Justice Roth today handed down judgment in the latest instalment of the litigation relating to the procurement of new trains by Eurostar International Limited (“Eurostar”). The Claimant and unsuccessful tenderer, ALSTOM Transport, had previously attempted to seek an interim injunction to restrain Eurostar’s decision to  award the contract to Siemens plc, as well as a declaration that the contract was ‘ineffective’ under Regulation 45J of the Utilities Contracts Regulations 2006 (as amended). Having failed in those applications, ALSTOM was left to pursue its claim on the merits that the procurement process carried out by Eurostar constituted a breach of its duties under the Utilities Contracts Regulations, and/or obligations under an implied tender contract.

Those allegations, however, raised a preliminary issue which was the subject of today’s judgement: is Eurostar a ‘utility’ for the purposes of the Utilities Regulations? The High Court has unequivocally ruled that it is not, and therefore ALSTOM can no longer proceed with those aspects of its claim based on Eurostar’s alleged duties as a utility. The decisive feature of the judgment is Roth J’s finding that Eurostar does not operate a network, an essential component of the definition of ‘utility’ under the Regulations, on the grounds that it does not provide or operate railway infrastructure, nor does it provide services pursuant to  relevant  conditions laid down by or under the law.  However, Roth J has also ruled in Eurostar’s favour on a number of other important points, in finding for instance that its services are of a commercial character rather than meeting needs in the ‘general interest’, and that it does not operate on the basis of special or exclusive rights.

The judgment thus  strongly supports Eurostar position in the claim as well as representing an important contribution to the development of procurement law in the utilities context. In terms of its wider significance, the judgment also considers the duty of a national court to disapply provisions of national law that are inconsistent with an EU directive, concluding (again in line with Eurostar’s submissions on the point) that there is no general requirement to do so in claims against private parties.

Michael Bowsher QC and Ewan West (instructed by Burges Salmon LLP) appeared on behalf of Eurostar at the hearing.”    

The Oxford University Law Faculty is holding a special lecture to celebrate the career of Sir Jeremy Lever KCMG, QC, a pioneer of both the practice and academic study of competition law in Europe.

Sir Jeremy’s academic contribution has been both profound and prolific. A Distinguished Fellow and Senior Dean of All Souls College, Oxford University, he was one of the earliest and most consistent advocates of an economically sound approach to competition law.  He established and taught one of the first courses in competition law in the United Kingdom at Oxford University. Publishing The Law of Restrictive Trade Agreements he has contributed to Chitty on Contracts, the gold-standard work on English contract law, was a consultant editor for Bellamy & Child, Common Market Law of Competition and has continued throughout his career to contribute articles to the major academic journals on state aid, vertical restraints, the modernisation of Community competition law and a range of other matters.

In practice, Sir Jeremy’s career has been no less remarkable and innovative. Called to the Bar in 1957, taking silk in 1973, first as a tenant, and later as head, of what is now Monckton Chambers, he led it to become a leading set of the London Bar, specialising in European Law. In the European Courts, he acted in some of the most important competition law and state aid cases from the 1970s to the 2000s, including notably IBM, AM&S Europe, Ford, Tiercé Ladbroke, Cimenteries CBR, British Energy and Scott SA. In the UK courts, he has appeared in an extraordinary range of cases from the Restrictive Practices Court in the 1960s, through ex parte Datafin in the Court of Appeal in 1986, to the House of Lords in a series of cases including Crehan v Intreprenneur Pub Co in 2006.

Sir Jeremy has been described as “the father of competition law” in Britain by Judge David Edwards of the Court of Justice of the European Union and was appointed Knight Commander of St Michael and St George for services to European Law in 2003. He has practised at Monckton Chambers for fifty-five years.

The Government of Myanmar (Burma) is understood to have confirmed the release of 28-year-old TV journalist Hla Hla Win, who had been detained since September 2009.  She had been sentenced to a total of 27 years’ imprisonment, having been arrested whilst on a journalistic assignment for a Norway-based media organisation.  The offences she was alleged to have committed involved unlawfully accessing the internet and allowing herself to be carried as a passenger on an illegally imported motorcycle.  Her news organisation has always maintained that the real reason for her detention was to suppress her journalistic reporting of politically sensitive issues.

In November 2011 a petition was filed with the UN Working Group on Arbitrary Detention seeking a formal opinion as to the arbitrariness of her detention.  The Government of Myanmar’s decision to release Miss Win comes before the date by which it had to file its defence to the petition.  Miss Win was amongst a number of political prisoners released to coincide with the recent visit of UK Foreign Secretary William Hague.

Monckton barrister Alan Bates, who was instructed by the Burma Justice Committee in relation to the filing of the petition, commented:

“It is brilliant news that this courageous young woman has been released following international pressure from multiple sources, though of course many other journalists and political activists continue to be detained. The UN Working Group on Arbitrary Detention is just one of a number of international legal mechanisms available for drawing attention to individual cases in which human rights treaty obligations are alleged to have been breached.”

In JBW Ltd v Ministry of Justice [2012] EWCA Civ 8 (16 January 2011) the Court of Appeal held that the procurement of bailiff services by the Ministry of Justice was a service concession and therefore fell outside the scope of the Public Contracts Regulations 2006 (“the Regulations”).

The vast majority of bailiffs’ work under the tendered contracts consists of the execution of warrants of distress issued by Magistrates for non-payment of fines. A bailiff enforcing a warrant issued by a Magistrates Court is entitled to levy distress against a fine defaulter by taking money or goods which are sold to generate funds to pay the fine.  The bailiff has a statutory right to retain out of the money thereby generated “the proper costs and charges of the execution of the warrant”.  In the case of distress warrants, monies received from defaulters are applied first to pay the court penalty, and then to pay the bailiff’s fees. The bailiff’s fees could be set by the bailiff on a case-by-case basis, leaving defaulters to verify for themselves that the fees are reasonable in the circumstances.  Tenderers were required to specify on a Schedule in the Invitation to Tender (ITT) the fees which they would charge.  Tenders were given marks according to whether the fee structure proposed was efficient, effective, economic and fair to debtors. Contractors were not guaranteed any particular level of work and the numbers of warrants issued would depend upon the numbers of defaulters which will vary from time to time.  And work could be allocated to a reserve contractor in the event that performance targets were not met.

JBW was an unsuccessful tenderer. It issued proceedings complaining of, amongst other things, a breach of the Regulations, alternatively, breach of an implied contract created by the ITT read with JBW’s tender in response to it, containing obligations of transparency and equality of treatment as under the Regulations.  JBW did not allege breach of EU Treaty rules as there was no cross-border interest in the contracts.

The Ministry applied for summary judgment on, alternatively strike-out of, the Claim on the basis that the contracts were service concessions which were excluded from the scope of the Regulations and that no contract could be implied as alleged by JBW. The Ministry was successful on both points.  Because of the importance of the case the appeal from the Master it went directly to the Court of Appeal.

A services concession contract is a public services contract under which the consideration given by the contracting authority consists of or includes the right to exploit the service or services to be provided under the contract (reg. 2(1)). The Ministry relied on recent ECJ decisions in Case C-206/08 Wasser and Case C-274/09 Stadler to say that it was sufficient to satisfy the definition of services concession that payment to the contractor came from third parties rather than the contracting authority, and that some risk was transferred from the contracting authority to the contractor, even if that risk was small having regard to the nature of the services to be provided.

Although the Court of Appeal considered that the contracts at issue was not “a paradigm case of a concession” where the contractor is put in charge of a business opportunity which he could exploit by providing services to third parties and charging for them, the Court nonetheless held that this was a service concession. Its reasoning was that i) there was some transfer of risk from Ministry to the bailiffs in the running of the bailiff service, ii) there was no direct payment by Ministry to the bailiffs for the performance of the service and iii) a service was provided to third parties, and iv) it did not matter that those third parties were unwilling recipients of the services.

The Court also rejected the argument of JBW that there could be an implied contract incorporating the terms akin to the duties found in the Regulations. Such terms were not necessary to give efficacy to the contract; there could have been no common intention to imply these obligations as the Ministry had always proceeded on the basis that the Regulations did not apply; and the Ministry had an express power to depart from the terms of the tendering document which was inconsistent with implying the EU principle of transparency. The Court held that the only contract that could be implied was one limited to consider tenders submitted as required by the invitation to tender, and also to consider them in good faith, as per the Court of Appeal’s decision in Blackpool Aero Club v Fylde BC.

This is an important case. It is the first time that the Court of Appeal has ruled on service concessions. The Court also made clear that a disappointed tenderer cannot rely on an implied contract to bring EU procurement obligations when the tender falls outside the scope of the EU rules.

Christopher Vajda QC acted for the Ministry of Justice.  Click to read the judgment inJBW Group Limited v Ministry Of Justice

Eric Metcalfe acted on behalf of the NGO intervener JUSTICE in the case of Othman v United Kingdom before the European Court of Human Rights. JUSTICE, jointly with Amnesty International and Human Rights Watch, had been granted leave by the Court to intervene in the proceedings, which concerned the UK government’s attempt to deport radical cleric Abu Qatada to Jordan, notwithstanding its ‘widespread and routine’ use of torture.

In Feburary 2009, the House of Lords unanimously upheld the earlier ruling of the Special Immigration Appeals Commission (‘SIAC’) that Othman – better known as Abu Qatada – could be safely returned to Jordan notwithstanding its well-known use of torture, on the strength of a Memorandum of Understanding between the UK and Jordan that promised that those returned would be humanely treated. The House of Lords also overturned the Court of Appeal ruling’s that Abu Qatada could not be deported on fair trial grounds, due to the likelihood that any subsequent trial in Jordan would involve reliance upon evidence obtained by torture.

The European Court upheld the House of Lord’s conclusion that Abu Qatada would not face a ‘real risk’ of ill-treatment contrary to Article 3 of the European Convention of Human Rights, despite considerable evidence of the use of torture by the Jordanian security forces, due to guarantees contained in the Memorandum of Understanding between the UK and Jordan. The Court also found that Abu Qatada had been able to challenge relevant evidence in proceedings before SIAC, notwithstanding its extensive reliance on closed material and the lack of sufficient disclosure to Abu Qatada of the case against him. However, the European Court agreed with the earlier conclusion of the English Court of Appeal that Abu Qatada’s removal to Jordan would involve a ‘flagrant denial of justice’, due to the existence of a ‘real risk’ that any trial in Jordan would involve the use of testimony from witnesses extracted under torture. The ruling provides important guidance concerning the reliance on governmental assurances against ill-treatment contrary to article 3 in the context of deportation, extradition and removal, as well as significant analysis of the ‘flagrant denial of justice’ test under articles 5 and 6 of the Convention.

For further press coverage, please click here.

Tim Ward QC, instructed directly by the Icelandic Foreign Minister is set to represent Iceland in a dispute with the European Free Trade Association (EFTA) Surveillance Authority (ESA) over its breach of the Deposit Guarantee Directive.

The claim concerns the application of the Directive to UK and Netherlands-based depositors in Landsbanki’s Icesave branches following the bank’s collapse in October 2008.

For further coverage on this item, please click here.

Paul Lasok QC, Melanie Hall QC and Frank Mitchell will be speaking to the Irish Tax Institute on Thursday 20 January in Dublin.  The talks will focus on the impact of the European Courts of Justice in relation to VAT.

Chambers is pleased to announce that Christopher Vajda QC has been listed in The Lawyer’s Hot 100 2012 which states that “Vajda’s EU and competition expertise is top notch.”

The Lawyer states:

“Appearing in not one but two of The Lawyer’s top 20 cases for 2012, and with two Supreme Court cases expected to be heard in the coming months, Monckton Chambers’ Christopher Vajda QC is on a roll.

In March interlocutory hearings will begin as telecoms giant Nokia, represented by Vajda, seeks damages for alleged price-fixing against LCD screen manufacturers Samsung.  Later in the year Vajda will argue the case for HM Revenue & Customs over VAT payments on loyalty card schemes in the Supreme Court and will also return to the court to argue a competition case, BCL Old Co Ltd & Ors v BASF & Ors. Vajda’s EU and competition expertise is top notch.

The annual supplement identifies members of the legal profession who have excelled in their chosen fields during the past year.

R (Imperial Tobacco, BAT, Philip Morris and Gallaher) v Secretary of State for Health

Twice adjourned and listed as one of the top 10 cases of 2011 by The Lawyer, the tobacco industry’s long running proceedings for judicial review of the primary and secondary legislation prohibiting the display of tobacco products in shops have now concluded in the Government’s favour. The tobacco manufacturers and retailers alleged that the prohibition of display infringed in particular the free movement of goods and freedom of expression provisions of the EU Treaty and the ECHR respectively. A five day hearing was fixed for early February 2012, but the Claimants have now discontinued proceedings.

Ian Rogers was instructed by the Secretary of State for Health.

In England, the ban will come into force in large shops, such as supermarkets, on 6 April 2012 and will protect young people from unsolicited promotions, helping them to resist the temptation to start smoking. It will also help and support adults who are trying to quit. Smoking kills more than 80,000 people in England alone every year. Small shops do not have to change their displays until 2015.

Wales, Scotland and Northern Ireland are also moving towards similar bans.

In a case run in parallel with the display challenge, the Court of Appeal upheld the prohibition of cigarette vending machines by a majority and set out in detail how the principles of proportionality and the margin of discretion applied in a public health context: R(Sinclair Collis) v Secretary of State for Health [2011] EWCA Civ 437; [2011] 3 C.M.L.R. 37; [2011] A.C.D. 98.

In addition, Ian Rogers appeared at the oral hearing for the United Kingdom in support of Norway’s case in the EFTA Court (Philip Morris Norway v Norway Case E-16/10), in which Philip Morris sought to strike down the Norwegian display ban.

R (Imperial Tobacco, BAT, Philip Morris and Gallaher) v Secretary of State for Health

Twice adjourned and listed as one of the top 10 cases of 2011 by The Lawyer, the tobacco industry’s long running proceedings for judicial review of the primary and secondary legislation prohibiting the display of tobacco products in shops have now concluded in the Government’s favour. The tobacco manufacturers and retailers alleged that the prohibition of display infringed in particular the free movement of goods and freedom of expression provisions of the EU Treaty and the ECHR respectively. A five day hearing was fixed for early February 2012, but the Claimants have now discontinued proceedings.

Ian Rogers was instructed by the Secretary of State for Health.

In England, the ban will come into force in large shops, such as supermarkets, on 6 April 2012 and will protect young people from unsolicited promotions, helping them to resist the temptation to start smoking. It will also help and support adults who are trying to quit. Smoking kills more than 80,000 people in England alone every year. Small shops do not have to change their displays until 2015.

Wales, Scotland and Northern Ireland are also moving towards similar bans.

In a case run in parallel with the display challenge, the Court of Appeal upheld the prohibition of cigarette vending machines by a majority and set out in detail how the principles of proportionality and the margin of discretion applied in a public health context: R(Sinclair Collis) v Secretary of State for Health [2011] EWCA Civ 437; [2011] 3 C.M.L.R. 37; [2011] A.C.D. 98.

In addition, Ian Rogers appeared at the oral hearing for the United Kingdom in support of Norway’s case in the EFTA Court (Philip Morris Norway v Norway Case E-16/10), in which Philip Morris sought to strike down the Norwegian display ban.