The Competition Appeal Tribunal has allowed in large part the appeals of 3 undertakings against the penalties imposed by the OFT in relation to the construction recruitment cartel.

The OFT fined 7 construction recruitment agencies for engaging in a collective boycott of an intermediary for the supply of candidates to construction companies in the UK and price-fixing. The OFT imposed fines totaling over £40 million.

3 recruitment agencies appealed the amounts of their fines: Eden Brown, CDI and Hays.

The Tribunal gave detailed consideration to several aspects of the Penalties Guidance used by the OFT when calculating fines and to the OFT’s approach to the MDT.  The Tribunal held that the OFT was wrong (i) to calculate the penalties by reference to the agencies’ gross turnover rather than net turnover representing the commission earned on placements and (ii) to calculate the MDT by reference to worldwide turnover only, which resulted in disproportionate penalties. The Tribunal carried out its own assessment to re-calculate the Appellants’ fines, including their respective leniency reductions.

The total amount of the fines imposed on Appellants was reduced by over £30 million.

David Unterhalter SC and Alan Bates represented the Office of Fair Trading.

Paul Harris QC represented Eden Brown Limited and Hays plc, Hays Specialist Recruitment Limited and Hays Specialist Recruitment (Holdings) Limited.

Ronit Kreisberger and Owain Draper represented CDI AndersElite Limited and CDI Corp.

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David Unterhalter SC
Paul Harris QC
Ronit Kreisberger
Alan Bates

The United Kingdom Border Agency, represented by Elisa Holmes, has won a hearing determining its application to have an automatic suspension imposed under Regulation 47G of the Public Contract Regulations 2006 (as amended by the Public Contract (Amendment) Regulations 2009) lifted.

Metropolitan Resources, represented by Philip Moser, issued a claim in February on the basis that UKBA’s decision to obtain what is known as Initial Accommodation services for asylum seekers from a provider – Happy Homes (who to date had only provided a different kind of accommodation for asylum seekers) – instead of from Liverpool City Council (with whom it had a sub-contract but whose contract with UKBA was about to expire) without conducting any kind of competitive procedure was unlawful. The effect of Regulation 47G of the Regulations is that upon the issue of such the claim, UKBA was prevented from finalising arrangements to obtain the services from Happy Homes.

In only the fourth case of its kind, Mr Justice Newey made the order removing the automatic suspension on the basis of the application of American Cyanamid principles. He held that whilst damages would not be an adequate remedy for the Claimant if it was successful in the substantive proceedings, nor would they be adequate for the UKBA if it was successful. The balance of convenience lay in favour of lifting the automatic suspension because if it were not brought to an end, UKBA would in effect be forced to enter into another contract with Liverpool City Council, that such arrangements may well themselves result in a contravention of the Regulations and that UKBA had had concerns with the provision of the services by Liverpool City Council through its sub-contract with the Claimant to date.

The Judgment has not yet been published.

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Philip Moser QC
Elisa Holmes

Friends, colleagues, parents, staff and students were invited to attend the first annual moot in memory of Monckton barrister and alumnus Ian Hutton held in March at the Galleries of Justice in Nottingham.

The moot, which forms an integral part of the final year LLB module, involved a human rights law problem.  The Moot was judged by another Nottingham Law School alumnus, barrister Dr Nick Armstrong.  All the students were praised for their hard work and the quality of their arguments.  The day was a fitting tribute to Ian.

Following a five year investigation into the construction industry, the OFT imposed financial penalties totalling £129.2 million on 103 construction companies for having engaged in cover pricing. The Decision is the longest ever taken by the OFT running to nearly 2000 pages. Twenty five companies appealed to the Competition Appeal Tribunal.  Six appealed both liability and penalty and the remainder appealed in relation to penalty only.

The Tribunal has delivered its first judgment in the appeals covering six appeals on 11 March 2011. The Tribunal found that the starting point of a penalty of 5% of relevant turnover imposed by the OFT was too high and substituted one of 3.5%. It further found that the OFT was wrong to take as the relevant year the year before the Decision but rather should have taken the year preceding the date when the infringement came to an end. It also found that the OFT’s calculation of a Minimum Deterrence Threshold (MDT) based on the worldwide turnover of the undertaking was unfair and unlawful; the MDT was applied mechanistically and without proper and case by case consideration of all relevant factors. As a result the Tribunal imposed very significant reductions in penalties.

Ballast Nedam N.V. & Others v Office of Fair Trading [2011] CAT 3

Christopher Vajda QC and Ronit Kreisberger (instructed by CMS Cameron McKenna) appeared on behalf of the Appellant, Ballast Nedam N.V. Its fine was reduced from £8,333,116 to £534,375.

Paul Harris (instructed by Nabarro LLP) appeared on behalf of the Appellant, Corringway Conclusions plc. Its fine was reduced from £769,592 to £119,344.

David Unterhalter SC and Alan Bates (instructed by the General Counsel, Office of Fair Trading) appeared on behalf of the Respondent.

Galliford Try Plc & Others v Office of Fair Trading [2011] CAT 7

John Swift QC and Kassie Smith (instructed by Pinsent Masons LLP) appeared on behalf of the Galliford Try Plc. It’s fine was reduced from £11,111,105 to £1,395,000.

David Unterhalter SC and Philip Woolfe (instructed by the General Counsel, Office of Fair Trading) appeared on behalf of the Respondent.

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John Swift QC
David Unterhalter SC
Paul Harris QC
Kassie Smith QC
Ronit Kreisberger
Alan Bates
Philip Woolfe

Chambers is delighted to announce that Robert Palmer has been elevated to the A Panel, Ronit Kreisberger has been elevated to the B Panel and Ewan West has been appointed to the Attorney General’s C panel.

Robert’s recent human rights cases have included acting on behalf of the government in the House of Lords in the challenge to the controversial “deportation with assurances” programme, and to the use of “closed evidence” to support the deportation of those believed to present a threat to national security.  The ‘technical and incisive’ Robert ‘has appeared in a number of High Court proceedings, including acting for the developer in Phillips v Secretary of State for Communities and Local Government’ – Legal 500.

Ronit is widely recognised as a leading senior junior in EU Law.  Following 7 years as a senior associate and Solicitor-Advocate at Herbert Smith, she joined Chambers in 2005 where she “quickly won a reputation at the Bar” – Chambers UK.  In January 2007 Ronit was listed by The Lawyer as one of the year’s “Hot 100” in which she was described as a “rising star”.

Ewan has considerable experience of dealing with Government departments, regulatory and other public sector bodies, including the European Commission, senior figures in the private sector and Ministers.  He has been closely involved in the preparation of primary and secondary domestic legislation and has represented the UK in negotiations over the passage of Community legislation.

Monckton Chambers now boasts 23 panellists, one of the highest of any set.  The appointments are a great honour and acknowledge our expertise in public, civil and European Community law litigation.

A Panellists include:

Andrew Macnab, Peter Mantle, George Peretz, Raymond Hill, Paul Harris, Tim Ward,
Kassie Smith, Daniel Beard and Robert Palmer.

B Panellists include:

Philip Moser, Ian Rogers, Meredith Pickford, Ronit Kreisberger, Valentina Sloane, 
Gerry Facenna, Anneli Howard and Elisa Holmes.

C Panellists include:

Julian Gregory, Rob Williams, Alan Bates, Ben Lask and Ewan West

R(Camden Council) v Parking Adjudicator [2011] EWHC 295 (Admin)

This was a test judicial review case brought by Camden Council to challenge various decisions of parking adjudicators who had allowed appeals against the payment of penalty charges during a period in which Camden claimed an additional 1.3% as an “administration fee” for payments by credit card. Camden accepted for the purposes of the proceedings that it had no right to recover the 1.3% “administration fee” but denied that the parking adjudicators had the power to disallow recovery of the penalty charge itself.

In some cases, parking adjudicators directed the Council to cancel the penalty charge on the statutory ground that in substance the penalty exceeded the prescribed amount. In other cases, adjudicators held that the inclusion of a statement requiring an extra 1.3% to be paid with credit card payments fell within the statutory ground of “procedural impropriety”, whether or not the recipient of the parking ticket tried to pay by credit card.

In addition, the test case explored (a) whether the obiter comments of another adjudicator who would additionally have allowed the appeal by way of a collateral challenge to an invalid administrative act would provide a good ground for appeal and (b) whether the cases would fall within the statutory ground “that the alleged contravention did not occur”. Extensive argument dealt with the scope of the powers of the parking adjudicators generally. This was the first case to consider the breadth of the power of the adjudicators to consider collateral challenges and the new statutory grounds for appeal under the Traffic Management Act 2004.

Mr Justice Burnett upheld the decisions of the parking adjudicator in each case and dismissed Camden’s application for judicial review of their decisions. Both of the statutory grounds relied upon were held to have been correctly applied by the adjudicators. In addition, the judgment has provided valuable guidance on the scope of the statutory grounds of appeal and the power to consider collateral challenges to the validity of administrative acts.

The Judge set aside a protective costs order which had not been requested by the Parking Adjudicator, but which had been made by the Judge who had granted permission to apply for judicial review in order to ensure that the court would have the benefit of detailed argument from the Parking Adjudicator at the hearing. However, following the final judgment, Mr Justice Burnett made an order that Camden should pay the Parking Adjudicator’s costs of the proceedings.

The press reported that Camden face a possible liability of £10 million in overpaid charges. Camden were granted permission to appeal to the Court of Appeal.

Ian Rogers appeared for the Parking Adjudicator (instructed by the Parking and Traffic Appeals Service).

Ian Rogers is also appearing on behalf of the Parking Adjudicator (instructed by the Traffic Penalty Tribunal) as respondent to an appeal in the Court of Appeal on 11-12 July 2011 in the case of (R(Herron) v Parking Adjudicator).

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Ian Rogers

Monckton Chambers is very pleased to announce the appointment of Ian Rogers, Robert Palmer and Gerry Facenna to the Equality & Human Rights Commission Panel of Counsel.

The EHRC’s responsibility is to “promote and monitor human rights and to protect, enforce and promote equality across the seven “protected” grounds – age, disability, gender, race, religion and belief, sexual orientation and gender re-assignment.”

For further information on the EHRC, please click here.

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Ian Rogers
Robert Palmer
Gerry Facenna

In R (Western Power Distribution Investments Ltd) v Cardiff County Council, the Administrative Court quashed a decision of the Council to designate land it owned as a nature reserve under section 21 of the National Parks and Access to the Countryside Act 1949. The Claimant was engaged in a long running planning battle with the Council over its plans to develop the neighbouring land.

The Council had acquired the designated land as “public walks or pleasure grounds” under section 164 of the Public Health Act 1875, with the result that it was held under a statutory trust for the benefit of the public for the purposes of recreation. Western Power successfully argued that the designation of the land as a nature reserve was unlawful because the 1949 Act required that nature reserves be managed for conservation purposes, and that any recreational purposes for which the land was also managed should not compromise the conservation purposes. Since management of the land for conservation purposes would conflict with the recreational purposes for which the land was held in trust, the Council ought first to have sought formally to appropriate the land for use as a nature reserve – which would have required it to advertise its intentions and to allow an opportunity for the public (including the Claimant) to object.

Robert Palmer represented Western Power, led by John Steel QC.

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Robert Palmer

The NHS has launched a High Court claim for damages for abuse of a dominant position in relation to the supply of Gaviscon against Reckitt Benckiser with all 10 Strategic Health Authorities and 144 Primary Care Trusts in England behind Andrew Lansley as Secretary of State for Health who is leading the action.

Last year the OFT fined Reckitt Benckiser £10m over its supply of Gaviscon to the NHS for abusing its dominant market position in the supply of heartburn remedies by restricting competition.  Reckitt withdrew cheaper alternatives as their patents had expired, therefore limiting the choice available to prescribing pharmacists.

Christopher Vajda QC and Philip Woolfe are representing the Department for Health.

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Philip Woolfe