PHILIP MOSER QC

MA (Cantab), ADR Accredited Mediator
CALL DATE: 1992 SILK: 2012

SUMMARY

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.

Clients include: companies, NGOs and individuals in the UK and abroad (particularly the US, Germany and Austria), as well as HM Revenue & Customs.

Called to the Bar in 1992 (Inner Temple), Philip has extensive forensic experience, having appeared as both junior and lead counsel in the High Court; the Court of Appeal; the House of Lords and the ECJ, as well as acting in national and international arbitrations. A former supervisor in EC Law at Robinson College, Cambridge, Philip occasionally lectures on EU Law and is the editor of The European Advocate. He is bilingual English/German and an accredited mediator.

Philip has been elected a Bencher of the Inner Temple following the Trinity Elections in July 2012. Philip is also a Fellow of the European Law Institute, 2012. Before taking Silk, Philip was a member of the Attorney General's Panel of Junior Counsel to the Crown.

CASES INCLUDE

Case C-285/11 Bonik EOOD, ECJ, pending; VAT input tax claims; test for connection; evidence required; knew or should have known
Case T-306/10 Yusef -v- European Commission, GCEU, pending; UN sanctions; whether post-Kadi EU regime lawful; whether applicant can bring action for failure to act
Case C-239/12 P Abdulrahim v Commission, ECJ, pending; terrorist sanctions; challenge; listing revoked; continuing interest; appeal
Case C-563/11 Forvards V, ECJ, pending; VAT input tax; Kittel test; knew or should have known
Case C-183/12 P Ayadi v Commission, ECJ, pending; terrorist sanctions; challenge; listing revoked; continuing interest; appeal
Joined cases C-113/10, C-147/10 and C-234/10 British Sugar & ors, ECJ, judgment, 27 September 2012; Sugar levy; annulled regulation; legality of new regulation; repayment of sums wrongly levied
Case T-145/09 Bredenkamp and Others v Commission (GCEU, Order, 6 September 2012); Zimbabwe sanctions; lack of reasons; challenge; listing revoked; no continuing interest
Joined Cases C-80 and 142/11 Mahagében and Dávid (ECJ, judgment, 21 June 2012) Directive 2006/112/EC - input VAT - conditions of refusal of right to deduct - due diligence - no contractual proximity required
Emblaze Mobility Solutions Ltd v HMRC [2012] BVC 174 (ChD) Set-off - Assignment of debt - setting off direct against indirect tax debts - legitimate expectation - enforcement of Tribunal decisions - interest - repayment supplement
HMRC v Cozens [2012] STC 420 (ChD) Civil procedure - Customs - Freezing injunctions - Dissipation of assets - Duty of disclosure - Fraudulent evasion of duty
Gateshead Talmudical College v HMRC [2011] STC 1593 (Upper Tribunal) Capital Goods Scheme - Input/output tax - Leases - Taxable supplies by religious college
Indigo Service v Colchester Institute [2011] EuLR 384 (QB): First Regulation 47G application - lifting suspension of award of public contract - American Cyanamid principles
Norbrook Laboratories Ltd & aor v Carr & aor [2011] CP Rep 7: Court of Appeal - civil procedure - costs - unincorporated associations
Mobilx & ors v HMRC [2010] STC 1436: Court of Appeal - MTIC fraud - test cases on ECJ "Kittel test" - knowledge of connection with VAT fraud
Accentuate Ltd v Asigra [2010] 2 All ER (Comm) 738 (QBD); Commercial agency; arbitration; UK jurisdiction where foreign proceedings contrary to EU mandatory rights
PKK v Council [2008] ECR II-45: CFI - EU terrorism list - freezing of funds - annulment of Council decision for lack of reasons
Calltel & Opto v HMRC [2008]: ChD - VAT appeal - test case on security for costs
Lonsdale v Howard & Hallam [2007] UKHL 32: House of Lords - commercial agents - test case re assessment of Reg. 17 compensation
PKK and KNK v European Council [2007] ECR I-439: ECJ - appeal from CFI - EU terrorist list - challenge to decision to proscribe organisation - standing
City of Sunderland v Thoburn [2003] QB 151 (Div Crt): 'Metric Martyr' litigation - metrication - European Community Act 1972 a 'constitutional statute'

PUBLICATIONS

Editor of 'Making Community Law - The Legacy of Advocate General Jacobs at the ECJ' (with Katrine Sawyer), Edward Elgar Publishing (2008) - for further details, please click here.
Author of 'Damages for Breach of the EC Public Procurement Rules in the United Kingdom' (with Michael Bowsher) (2006) 15 PPLR Issue 4, p.195
Author of 'Finished Business: calculating termination payments to commercial agents' (2002) 146 SJ 1062, and (with J. Munro) of the follow-up: 'Uncertain rewards' (2005) 149 SJ 256
Assistant Editor of 'Professional Negligence and liability' (1st ed.) (LLP, 2000; gen. ed.: Mark Simpson)
Contributor of Chapter on 'EC Law and Crime' in 'Practitioners' Handbook of EC Law', Trenton Publishing/Bar Council/BEG, 1998 (with Alan Newman QC)
Author of 'The Impact of the Applicable Law of Contract on the Law of Jurisdiction under the European Conventions' (1996) 45 ICLQ 190 (with Christopher Forsyth; "real meat" test approved by Court of Appeal in Print Concept v GEW [2001] EuLR 577)
Sole contributor of 'Precedents' chapter to: 'European Courts Practice and Precedents', Sweet & Maxwell, 1^st ed., 1996 (gen. ed.: Richard Plender QC)

COMMERCIAL AGENCY

Having appeared in the leading cases of Lonsdale and Ingmar, Philip is regularly instructed by agents and principals. Cases include:

Accentuate Limited v Asigra Inc [2009] EWHC 2655 (QB): foreign arbitration and law clause in agency contract - award contrary to mandatory EU law rights unenforceable by analogy with Ingmar
Lonsdale v Howard & Hallam [2007] UKHL 32; [2007] 1 WLR 2055, House of Lords - commercial agents - test case re assessment of Reg. 17 compensation (sole counsel for the agent in House of Lords)
Smith & ors v Howard & Hallam [2006] EuLR 578, QBD: agents re-engaged by purchaser of business after termination - Reg. 17 compensation (counsel for the agents)
Ingmar v Eaton Leonard [2001] EuLR 755, QBD: Commercial Agents Regulations - assessment of Reg. 17 compensation for termination (counsel for the principal)
Hackett v Advanced Medical Computer Systems Ltd [1999] CLC 160, Merc. Crt.: Commercial Agents Regulations - notice of agents' claim need not be in particular form (counsel for the principal)

COMMERCIAL/ARBITRATION

Philip frequently acts in commercial matters, usually with an international element, either in national courts (cases for or against multinational companies) or international arbitration. Cases include, e.g.: acting for largest UK telecom company in telecoms arbitration; acting for Austrian media company in arbitration against Lloyd's insurers; copyright/design right dispute over corset designs (Vollers Corset Company Ltd v Cook & ors [2004] ECDR 28 (interim relief in IP cases)).

COMPETITION LAW

Philip has done regular advisory work in competition law ranging from advising a global paints company to advising a Cypriot fast food franchise and Article 81/82 EC complaints. He has appeared before the Commission in Brussels and national courts and reported cases include: Sockel GmbH v The Body Shop International [2000] EuLR 276, ChDiv (injunction abuse of a dominant position).

EUROPEAN LAW

Philip has appeared before the ECJ in Luxembourg and the Commission in Brussels and in EU law cases at all levels of the English courts, as well as in appeals before the VAT and Duties Tribunal. He has also given evidence to the House of Lords EU select committee. Philip has particular expertise in EU sanctions, having dealt with respectively: terrorist; Zimbabwe; Burma, and Iran sanctions cases. Cases include:

Case C-147/10 British Sugar plc v RPA, an Executive Agency of DEFRA: ECJ - validity of Sugar Regulation - calculation of levy after Jülich (for DEFRA); pending
Case C-113/10 Zuckerfabrik Jülich AG v Hauptzollamt Aachen (No.2): ECJ - validity of Sugar Regulation - calculation of levy after Jülich (for UK, intervening); pending
Case T-145/09 Bredenkamp & ors v Commission: General Court - Zimbabwe sanctions - rights of defence - annulment (for applicant); pending
Case T-229/02 PKK v Council [2008] ECR II-45: CFI - EU terrorist sanctions - annulment of Council decision for lack of reasons (lead counsel for applicant)
Case C-409/04 R(Teleos) v Customs & Excise [2007] ECR I-7797: ECJ - VAT input tax - MTIC trading - liability of trader without knowledge (as junior counsel for traders in ECJ)
Case C-229/05P PKK and KNK v Council [2007] ECR I-439, ECJ: appeal on admissibility from CFI - EU terrorist sanctions - challenge to decision to proscribe organisation - representative's authority to initiate direct action (as lead counsel in ECJ)
Case T-02/04 Korkmaz & Ors v Commission [2006] (Order, 30 March 2006), CFI: EU Courts - access to justice in environmental/Human Rights matters (as lead counsel for applicants)
R v Joy and Bossom [2005] EuLR 765; [2006] EuLR 1131, CA: under-10 metre fishing vessels - criminal prosecution - proportionality of DEFRA licensing scheme under CFP (as counsel for Bossom)
City of Sunderland v Thoburn [2001] EuLR 587; [2003] QB 151, DivCrt: 'Metric Martyr' litigation - metrication - European Community Act 1972 a 'constitutional statute' (as junior counsel for Sunderland)

INTERNATIONAL LAW

Philip has dealt with numerous private international law (Conflict of Law) cases in courts in England and Germany as well as the ECJ. Since acting as junior counsel in Webb v Webb [1994] ECR I-1717, ECJ (Brussels Convention - jurisdiction over English Trust property in France lies in England) Philip has handled cases both under the Brussels and Lugano Conventions, now the Jurisdiction Regulations, as well as English choice of law rules. Cases include:

Accentuate Limited v Asigra Inc [2009] EWHC 2655 (QB): successfully argued for UK jurisdiction where foreign arbitration award contrary to mandatory EU law rights
Cronos v Palatin & ors [2003] 2 Lloyd's Law Reports 489: an Austrian/English conflict over trust property
Cadle Co v Hearley [2002] 1 Lloyd's Rep 143: English/US garnishee orders and limitation

PROCUREMENT LAW

Philip is regularly instructed by private contractors, the Government and public bodies in this specialist area. Advisory and litigation work includes: the first Regulation 47G application to lift a suspension on contract-making; limitation (pre- and post- Uniplex); NHS procurement issues; damages claims (including the issue of loss of a chance) and disclosure. Philip frequently lectures on procurement law and was co-author of 'Damages for Breach of the EC Public Procurement Rules in the United Kingdom' (2006) 15 PPLR Issue 4, p.195.

Recent or ongoing cases include:

Indigo Service v Colchester Institute [2010] EWHC 3237 (QB): New Regulation 47G - lifting suspension of award of public contract - American Cyanamid principles
R on the Application of Redwood Health Limited v NHS PASA [2009] EWHC 2511 (Admin): Successfully resisting judicial review proceedings - Case C-454/06 pressetext - "essential term" and "new award"
Amaryllis Ltd v HM Treasury (No.2) [2009] EWHC 1666 (TCC); [2010] EuLR 152: Confidentiality - disclosure - public interest immunity
Amaryllis Ltd v HM Treasury [2009] EWHC 962 (TCC), [2010] EuLR 85: Regulation 47 - limitation - proper notice and "prompt"

PROFESSIONAL NEGLIGENCE

Philip has wide forensic and advisory experience of professional negligence cases, principally those involving solicitors, especially where there are EU law or cross-border elements. Reported cases include Feakins v Burstow [2006] PNLR 6, QBD: solicitors' negligence case arising out of ECJ litigation - export of sheep - pre-paid export refunds - loss of a chance (lead counsel for solicitors).

VAT

Philip is frequently instructed in indirect tax matters, mainly by HMRC. This includes a particular expertise in MTIC fraud, in which he did the first full post-Kittel trial (Calltel) and the subsequent test cases on the Kittel test (Mobilx; Blue Sphere Global; Calltel).

Cases include:

Gateshead Talmudical College v HMRC [2010] UKFTT 244 (TC): Capital goods - Colleges - leaseback
Mobilx; Blue Sphere Global; Calltel & aor v HMRC [2010] EWCA Civ 517; [2010] S.T.C. 1436; [2010] Lloyd's Rep. F.C. 445: Court of Appeal - MTIC fraud - test cases on meaning of "connection" and "knowledge" and application of ECJ's Kittel test
Olympia Technology v HMRC [2010] UKFTT 45 (TC): MTIC fraud - constructive knowledge from surrounding circumstances in some transactions but not all
Livewire Telecom v HMRC; Olympia v HMRC [2009] EWHC 15 (Ch); [2009] STC 643: MTIC fraud - "Knew or should have known" - dishonesty - "naïve" trader and objective knowledge
Calltel v HMRC [2008] EWHC 2107 (Ch); [2008] STC 3246: Security for costs in VAT appeals to High Court

ADDITIONAL INFORMATION

Education: Robinson College, Cambridge; Vienna University; MA(Cantab); Inns of Court School of Law; Duke of Edinburgh Scholarship.

Languages: German (bilingual); French (working knowledge).

Professional Background: Research Associate, Centre for European Legal Studies (CELS), University of Cambridge 1996-1998; Supervisor in EC Law, Robinson College, Cambridge 1995-97; Editorial Board, European Law Reports 1999-; Editor, The European Advocate 2000-; Bar Council Representative to the Federation of European Bars 2001-2007; accredited as Mediator (College of Law); elected UK Council Member for the International Criminal Bar 2003-2007; Chairman, ICB Election & Constitution Committees, 2003-2007.

Committees: Bar European Group Committee 1998-; International Relations Committee of the Bar Council 2000-; Bar Liaison Committee, Inner Temple, 2003-; UKAEL Committee, 2005-.

Memberships: European Law Institute, 2012; Bar European Group; Europäische Anwaltsvereinigung (DACH); Association of German-Speaking Lawyers; UKAEL; European Circuit; South-Eastern Circuit; PNBA.