The Upper Tribunal (Administrative Appeals Chamber) has ordered the Cabinet Office to disclose information about the compliance of Dame Priti Patel MP with the Ministerial Code and Business Appointment Rules.

Ms Patel is alleged to have broken those rules in 2019 when she took up a position as strategic adviser to Viasat, for which she was paid £1,000 per hour, without first clearing the role with the Advisory Committee on Business Appointments (ACOBA). The alleged breach was reported at the time by The Guardian, following which a Freedom of Information Act 2000 request was made to the Cabinet Office for discussions within Government about the situation. Ms Patel was the Home Secretary at the time of the request.

The Information Commissioner ordered the Cabinet Office to disclose the vast majority of the information. The First-tier Tribunal reached the same conclusion, albeit both the Cabinet Office and Information Commissioner agreed that the FTT’s reasoning was flawed.

The UT has upheld the Commissioner’s original decision. Although the UT recognised that revealing internal discussions carried a strong risk of a “chilling effect”, it concluded that disclosure was in the public interest, in particular given the information concerned serious and viable questions about Ms Patel’s compliance with the rules, and because there was a “clear transparency and accountability deficit”. In addition, the UT placed weight on the circumstances surrounding Ms Patel’s resignation as Secretary of State for International Development in 2017, which it considered raised “a serious question about Mrs Patel’s approach to the behavioural standards expected of ministers”. In reaching its conclusions, the UT rejected the suggestion that, because the Prime Minister is the sole arbiter of the Ministerial Code, there is a limited public interest in the disclosure of the views of civil servants about its application.

The judgment also contains a detailed consideration of the approach of Tribunals in FOIA appeals to the evidence of experienced civil servants.

The Upper Tribunal’s judgment is available here.

Will Perry acted successfully for the Information Commissioner.

The United States District Court for the Northern District of California has granted Google LLC’s motion for preliminary (anti-anti-suit and anti-enforcement) injunctions against NAO Tsargrad Media, holding that international comity did not require recognition of a judgment obtained by Tsargrad in Russia in breach of a forum selection agreement.

The court noted that “in applying Article 248.1 [of the Russian Arbitrazh Procedure Code], the Russian courts sought to delegitimize the U.S. court system by holding that the U.S. courts were not a fair forum capable of delivering justice”, which was “the culmination of an effort to frustrate the U.S. courts’ jurisdiction in clear violation of U.S. public policy”.

The order granting in part motion for the preliminary hearing can be viewed at www.pacer.gov, ref. Case No.: 5:24-cv-05423.

Drew Holiner was instructed in the case as an expert in Russian law by King & Spalding in New York & San Francisco.

The Upper Tribunal (Tax & Chancery Chamber) has released its decision dismissing HMRC’s appeal and upholding the decision of the First-tier Tribunal that ride-hailing services do fall within the Tour Operators Margin Scheme (“TOMS”). The Upper Tribunal has ruled that the First-tier Tribunal was correct to find that the single supply of ride-hailing falls within TOMS.

Valentina and Jenn were instructed by Deloitte LLP. A copy of the decision is available here.

In a judgment handed down on 7 March, the Bailiff of Guernsey, Sir Richard McMahon, set aside a 2021 decision by the Guernsey Competition and Regulatory Authority (GCRA) finding that Sure and Jersey Telecom, two of the main providers of mobile telephone services in Guernsey, had entered into an unlawful concerted practice in relation to proposals for the roll-out of 5G mobile telephone services in Guernsey.  The Bailiff set aside the decision on the basis that key findings made in the decision had not been put to the parties in the GCRA’s statements of objections.  He went on to state that in any event he would have been minded to set aside the decision on a number of grounds relating to the substance, including a finding of object infringement.  The judgment also contains rulings on important aspects of Guernsey competition law, including its relationship to EU law and the standard of review to be applied by the Royal Court on appeal.

George Peretz KC assisted a Bedell Cristin team, led by Advocate Jon Barclay, for Jersey Telecom before the GCRA and on the appeal.

Stefan Kuppen assisted a Carey Olsen team, led by Advocate Elaine Gray, for Sure Guernsey on the appeal.

Josh Holmes KC and Julian Gregory assisted a team at the GCRA

The Competition Appeal Tribunal has issued its judgment granting Bulk Mail Claim Limited (“BMCL”) a Collective Proceedings Order, clearing the way for BMCL to bring claims for damages on behalf of retail bulk mail customers, a class of different sized businesses and other organisations such as public bodies, and charities that send high volume mailings to addresses in the UK.

Retail customers purchase bulk mail retail services from Royal Mail and “access operators” in the “bulk mail retail services market”. Access operators typically collect bulk mail and carry out an initial sortation, before passing that mail on to Royal Mail for physical delivery. Royal Mail is overwhelmingly dominant on the relevant end-delivery market, which accounts for the largest proportion of the cost of sending bulk mail. Following an investigation, Ofcom found in a decision issued in 2018 that Royal Mail had abused its dominant position in 2014 by proposing to introduce discriminatory pricing for bulk mail delivery, which was designed to exclude Whistl, a major access operator, from the end-delivery market and to protect Royal Mail’s monopoly position.  BMCL claims that in the absence of Royal Mail’s conduct bulk mail retail customers would have benefited from lower prices as a result of competition in the end-delivery market.  The CPO Notice which BMCL is required to publish by the Tribunal states that damages are currently estimated in the region of £1 billion. Whistl recently settled its claim against Royal Mail.

In its Judgment, the Tribunal dismissed Royal Mail’s two objections to certification (in relation to BMCL’s expert methodology for estimating damages) principally on the basis that these were matters for trial. Although Royal Mail did not advance a positive case that BMCL via its sole director, Robin Aaronson, was not suitable to be authorised to bring the claim, the Judgment shows the care the Tribunal takes of its own initiative to ensure that a class representative is a suitable person and has appropriate arrangements in place to advance the claims of the class members. In particular, the Tribunal requested a range of information from BMCL (including, a letter setting out how the claim had arisen and details as to the costs budget), and, in light of the unusual composition of the class, requested that BMCL establish a ‘customer user group’ so that larger class members could offer their input to BMCL.

Bulk Mail Claim Limited was represented by Paul Harris K.C., Ben Rayment, Will Perry and Reuben Andrews instructed by Lewis Silkin LLP.

A copy of the certification Judgment can be found here.

On 7 March 2025, the Competition Appeal Tribunal held that the alleged failure of six water and sewage companies to supply accurate information for the statutory regime of price control under the Water Industry Act was an essential ingredient of the proposed class representative’s claim for breach of statutory duty under the Competition Act.  Accordingly, the Tribunal concluded that the claims for alleged abuses of dominance in alleged breach of the Chapter II prohibition were excluded by s.18(8) of the Water Industry Act 1991.

Accordingly, subject to any appeal, Professor Caroyln Roberts’ proposed collective proceedings have failed at the certification stage and will not proceed further.

The Tribunal explained that if the claims for abuse of dominance were not so excluded, the Tribunal would have granted CPOs in each set of proceedings.

The Judgment is available here.

Anneliese Blackwood, Daisy Mackersie and Jack Williams represented various of the successful water and sewage companies at the certification hearing (instructed by Freshfields, Herbert Smith Freehills, Slaughter and May, Linklaters, Norton Rose Fulbright and Bryan Cave Leighton Paisner).

Julian Gregory, instructed by RPC, represented Professor Roberts (funded by Benchwalk).

Other Monckton counsel involved in these proceedings include Tim Ward KC, Paul Harris KC, Anneli Howard KC, Antonia Fitzpatrick and Hugh Whelan.

The CAT has handed down an important judgment in a post-Brexit jurisdictional challenge/ strike out application in Asda Stores Limited and Others v Bremnes Seashore AS and Others, a cartel damages claim brought by leading UK supermarkets against several of the largest global producers of farmed Atlantic salmon. The claim alleges a cartel infringement relating to the Norwegian spot price index that inflated the cost of salmon products in the UK.

Post-Brexit, claimants cannot simply rely on the heads of jurisdiction set down in the Brussels Recast Regulation or the Lugano Convention to seise the UK courts – instead they have to show that there is a serious issue to be tried and that the UK courts satisfy the Spiliada forum conveniens test. The re-introduction of the former common law test has introduced uncertainty regarding jurisdiction post Brexit.

The Defendants argued that the Norwegian courts were clearly more appropriate given that the alleged cartel took place in Norway and all the witnesses and documentary evidence relating to the cartel would be in Norway.

The Defendants also sought to set aside the Tribunal’s previous order granting permission to serve out of the jurisdiction for material non-disclosure on the basis that the proceedings are stand-alone rather than follow-on. This case is one of the first claims issued post-Brexit, where the Claimants rely on a European Commission Statement of Objections to support the cartel allegations in their claim. As yet there is no Commission infringement decision and, as the Commission investigation was formally instigated after the end of the Brexit implementation period, any Commission findings will not be binding on the Tribunal. Notwithstanding that any eventual Commission infringement decision would not be binding as to liability, the Tribunal confirmed that it may have regard to any eventual decision and the Commission’s findings may still be persuasive in UK stand-alone proceedings.

The claim, which will now proceed in the UK, gives important guidance for determining jurisdiction challenges on forum non conveniens grounds, an issue that has arisen in several recent post-Brexit cases. The Tribunal ruled that the UK, rather than the Norwegian courts, is the more appropriate forum to hear the claims. Although the main events relating to the cartel activities are alleged to have taken place outside the UK, the Tribunal found that the direct and indirect effects on UK prices relating to both Norwegian salmon and Scottish salmon (said to have resulted from the collusion in Norway) made the UK the natural and appropriate forum for the proceedings.

The Defendants also sought to strike out the claims against their UK subsidiaries, on the basis that they were engaged in different ‘economic activity’ as they primarily sold Scottish salmon rather than Norwegian salmon products. The Tribunal gave an important judgment regarding the interpretation and application of the Sumal test (a post-Brexit CJEU ruling) for being part of the same economic undertaking for the purposes of competition law. In this case, the UK subsidiaries were either wholly owned by the Norwegian Defendants or were part of 50/50 or 60/40 joint ventures. The Tribunal held that there was an arguable case on control or decisive influence and that the UK subsidiaries were engaged in the ‘same economic activity’ as their parents as they sold the same species of salmon products in the UK – it made no difference if there was a slight difference in the geographical denomination or commercial branding of their products. Accordingly, the Tribunal took a broader, pragmatic approach to the interpretation of economic activity. The ruling also confirms the importance of UK anchor defendants in establishing a substantial connection with the UK and demonstrating that the UK is an appropriate forum.

Anneli Howard KC, Julian Gregory and Alastair Holder Ross of Monckton Chambers, instructed by Stephenson Harwood, acted successfully for the claimant supermarkets.

Josh Holmes KC and Conor McCarthy of Monckton Chambers, instructed by Shepherd & Wedderburn, act for the SSF (Scottish Sea Farms) Defendants.

The Court of Appeal today gave judgment in R(British Gas Trading and E.ON) v Secretary of State for Energy Security and Net Zero, the first case before it dealing with the post-Brexit UK subsidy control regime. The case concerned the then government’s package of subsidy to facilitate the acquisition in 2022 by Octopus of Bulb, a major retail supplier of electricity that went into special administration in 2021. British Gas and E.ON brought judicial review proceedings in the Administrative Court claiming breach of the subsidy control provisions in the UK/EU Trade and Cooperation Agreement (“TCA”), which has been incorporated into domestic law by the EU (Future Relationship) Act 2020. (The Subsidy Control Act 2022, which now regulates grants of subsidy by UK authorities, had not at that stage come into force.) They claimed that defects in the tender process leading to the selection of Octopus as the acquirer meant that the subsidy could not properly be regarded as the minimum necessary and that subsidy had been granted to Octopus as well as to Bulb: they also claimed breach of the specific TCA provisions relating to restructuring subsidies. The Divisional Court rejected their claims in March 2023, refusing permission to bring judicial proceedings on the ground of delay and also finding that the graunds of judicial review failed in any event. British Gas and E.ON appealed to the Court of Appeal.

In its judgment, the Court of Appeal finds that the Divisional Court was wrong to refuse permission on the ground of delay in relation to the claim for financial relief (a recovery order), both on domestic law principles and because of provisions of the TCA that required the claimants to be provided with sufficient information about the subsidy, information that was not provided until very shortly before they brought their claim. However, the Court of Appeal rejected the appeal on the merits, holding that the decision to grant subsidy was subject to review only on conventional domestic law principles of judicial review, including rationality.  It went on to hold that the Secretary of State was entitled to take the view that the process followed to select Octopus was open, transparent and non-discriminatory so as to provide the basis for a conclusion of minimum subsidy to Bulb (and no subsidy to Octopus) and that he was also entitled to take the view that the subsidy responded to a global or national economic emergency: a conclusion that made it unnecessary for the Court to decide whether the subsidy complied with the specific rules on restructuring subsidy.

George Peretz KC and Harry Gillow, instructed by Pinsent Masons LLP, acted for E.ON in the appeal to the Court of Appeal.

In the matter of Thames Water Utilities Holdings Limited and in the matter of the Companies Act 2006 [2025] EWHC 338 (Ch), judgment 18 February 2025, Leech J

Philip Moser KC and Hugh Whelan of Monckton Chambers have acted successfully for Thames Water in its application to the Court to sanction its proposed restructuring plan. This approval paves the way for Thames Water to access significant further funding.

The restructuring plan was principally contested by a group of creditors holding Class B junior debt (known as the ‘Class B Creditors’) who advanced several Grounds of Objection to the plan. By their fourth objection, the Class B Creditors submitted that there was a ‘blot’ in the proposed restructuring plan because one of its clauses, known as the ‘June Release Condition’ (which provided certain conditions for the release of future tranches of funding), infringed the Chapter I Prohibition contained in section 2(1) of the Competition Act 1998.

Leech J dismissed this objection, holding that the Class B Creditors had failed to prove any of their allegations on the balance of probabilities, so the objection failed on the facts. Leech J further found that, even if the Class B Creditors had proved their allegations, he would have dismissed the objection in any event based on the application of the law to the facts, as there was neither a restriction of competition by object nor a restriction of competition by effect.

The Judgment can be found here.

Philip Moser KC and Hugh Whelan of Monckton Chambers, instructed by Linklaters, acted for the successful Applicant Company in relation to the competition law matters.

The Court of Appeal (Coulson LJ, Fraser LJ, and Zacaroli LJ) has handed down a significant judgment in a procurement dispute, clarifying the circumstances in which a contracting authority is obliged or entitled to seek clarification of errors in a tender.

The claimant (Optima Health) had tendered for a call-off contract under a framework agreement to provide occupational health and employee assistance programme services to the Department for Work and Pensions. Under the framework agreement, suppliers could not charge prices in excess of framework prices for any call-off contract. Optima submitted a pricing schedule in which a small number of items were in excess of the framework prices. DWP considered Optima’s tender to be non-compliant and excluded it from the competition, although it had the highest score on quality and would (but for its non-compliant prices) have been the winning bidder.

Optima alleged that the pricing schedule contained obvious clerical errors and that its disqualification was in breach of the principles of transparency and equal treatment and/or disproportionate. At trial, the Court was asked to determine: (i) whether the tender documentation clearly and transparently set out the consequence of exceeding framework prices (ii) if the tender documents were clear and DWP therefore had a discretion, whether it had acted unlawfully by excluding Optima rather than taking alternative action, such as reducing the prices to the maximum framework prices, waiving the non-compliances, or seeking clarification.

The High Court found against Optima on both grounds, holding that (i) it was clear from the tender documentation (understood in its commercial context) that bids with prices in excess of framework prices would or might be excluded and (ii) DWP had lawfully excluded Optima from the competition.

Optima appealed on the basis that (i) the judge had erred in finding that the tender documentation contained a clear rule of mandatory exclusion and (ii) in the circumstances DWP ought to have permitted to Optima to correct and/or clarify the errors in its tender.

The Court of Appeal allowed the appeal, concluding that: the tender documentation did not contain a clear rule of mandatory exclusion; DWP had failed properly to exercise its discretion in relation to clarifying the errors; in the circumstances it was obliged to seek clarification of them and to do so would not have been a breach of the principle of equal treatment.

The lead judgment of Coulson LJ contains an in-depth consideration of the existing European and domestic authorities, clarifying when corrections to tenders may be permissible and the circumstances in which a contracting authority is required to seek clarification. The judgment emphasises that equal treatment is not an end in itself; rather the principle must be applied with regard to the overall purpose of public procurement, which is to ensure healthy and effective competition and to allow a proper evaluation of tenders. In those circumstances, a contracting authority is obliged is to seek clarification where it is clear that the details of a tender require clarification or where it is a question of the correction of obvious clerical errors; clarifications should then be permitted where they are not substantial and do not amount to the submission of a new bid (which will be a matter of judgment for the evaluators).

This judgment will be of widespread interest to both economic operators and contracting authorities as regards the correct treatment of non-compliant tenders and the circumstances in which exclusion of a tender is permitted.

Valentina Sloane KC acted for Optima Health (instructed by Eversheds Sutherland (International) LLP).

Azeem Suterwalla and Alfred Artley acted for DWP (instructed by the Government Legal Department).

A copy of the judgment can be found here.