The Lawyer has announced their nominations for The Lawyer Awards and we are honoured to have been shortlisted for ‘Chambers of the Year’.  The awards ceremony will be held at Grosvenor House, Park Lane London on 21 June.

The High Court 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 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 that the imposition of requirements on ISPs under the Act would breach EU law, because:

(i) the Act had not been notified in draft to the European Commission under the Technical Standards Directive;

(ii) the requirements would be incompatible with EU Telecoms Directives (including the E-Commerce Directive, the Privacy and Electronic Communications Directive, and the Authorisation Directive); and

(iii) the requirements were disproportionate in their impact on ISPs, consumers and others, and therefore breached EU law and the European Convention on Human Rights.

The Court rejected the challenge to the Digital Economy Act in full.  However, the Court found for the Claimants on one ground of challenge, which related not to the Act itself, but to proposed rules requiring ISPs (as well as copyright holders) to contribute towards Ofcom’s costs of administering the scheme.  The Court’s judgment means that, unless there is a successful appeal, the Government is free to press ahead with implementing the Digital Economy Act regime, subject only to making adjustments to the way Ofcom’s costs will be recovered.

The Claimants have not yet said whether they will seek permission to appeal against the judgment

Robert Palmer and Alan Bates represented the Secretary of State for Business Innovation and Skills (the Defendant).

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Robert Palmer
Alan Bates

Described by Chambers UK as ‘personable and responsive’ providing ‘proactive and high-quality advice’ Tarl, with over 20 years’ experience as a tax lawyer joins Monckton from Charles Russell LLP, where he founded and headed the Corporate Tax department. Tarl will be specialising in direct and indirect taxes, advising businesses and individuals. His particular strength lies in advising those in the property sector. Tarl has special interests in the effect of EU law on UK taxes; and environmental taxes.

Tarl is a fellow of the Chartered Institute of Taxation and member of the VAT Practitioners Group. He has recently contributed two chapters to ‘Value Added Tax – Commentary & Analysis‘ on Property and the Taxable Amount. Tarl has also written a number of articles on matters such as anti avoidance tax rules affecting transactions in land and tax issues for charities.

Tarl comments; “I feel privileged that I can launch my career at the Bar as a member of Monckton Chambers. I look forward to the exciting challenges ahead.”

David Hockney, Senior Clerk; “I am delighted that Tarl has accepted our offer of tenancy. He has genuine depth to his practice with the ability to offer clients a range of direct and indirect tax services. He is particularly renowned for his work in relation to VAT and more generally taxes associated with the property sector. His knowledge on employment taxes and employee share schemes adds a significant string to the bow of our collective expertise.”

Paul Lasok QC, Head of Chambers; “Tarl is a welcome addition to those members of Chambers who do tax work and enhances our ability to provide a comprehensive tax advisory and litigation service to our clients”.

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Tarlochan Lall

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