R (Cheung) v Office of Intercollegiate Services
Downing College were an Interested Party

The Administrative Court has refused permission to apply for judicial review to a disappointed applicant to Downing College, Cambridge concerning the decision not to offer him a place.

The Claimant applied to study Land Economy at Downing College in the academic year 2020-2021. Following the College’s refusal decision, he sought entry to the University by way of a challenge to the decision of the Undergraduate Admissions Complaints Panel (which operates under the auspices of the Defendant) which he had asked to consider a complaint he made against the College’s rejection decision. The Panel’s remit was to consider whether Downing College had made a ‘serious procedural error’.

The Claimant’s claim centred on an email which the College was said to have received but not taken into account in rejecting the Claimant. It was not in dispute that the putative email contained the fact that the Claimant was to re-sit to A-level exams. It was disputed that the email was ever received, and there was an issue as to whether it contained ‘updated A-level predictions’.

The Claimant advanced four grounds: (1) the Panel had failed to take into account the ‘updated A-level predictions’ in the email; (2) the Panel had erred in finding or was irrational in determining that the Claimant’s complaint was a challenge to academic judgment; (3) the Panel erred in fact in finding that the Claimant had not provided any evidence of predicted results; and (4) the Panel erred in fact or was irrational in finding that the email would have made no difference.

At an oral renewal hearing, the Administrative Court refused the Claimant permission on all grounds on the basis that the Panel had been entitled to find that Downing had made no ‘serious procedural error’. The Court found, as it did so, that there was “no doubt” that the Panel’s decisions had been “conscientious, expert and reasonable”. The judge did not need to determine the issue of whether decisions of the Panel, or university admissions decisions generally, are susceptible to judicial review, which is left for future challenges.

Imogen Proud acted for the Office of Intercollegiate Services

Michael Armitage acted for Downing College

The Court of Appeal has today handed down its judgment in OT Computers (in liquidation) v Infineon and Micron [2021] EWCA Civ 501. The judgment is the first time an appellate court has considered the operation of s.32(1) of the Limitation Act 1980 (postponement of limitation period in case of fraud, concealment or mistake) in the context of an insolvent claimant. It confirms that a claimant’s insolvency is a relevant factor in the application of the test in s.32(1) and, in particular, may affect the question of what a claimant could with reasonable diligence have discovered.

OT Computers (‘OTC’) was a computer manufacturer before entering into administration in early 2002. Its claim for damages follows on from a decision of the European Commission finding a price-fixing cartel in computer memory (DRAM) which operated from 1998–2002. OTC ceased trading before the cartel’s activity had come to an end, and before any information about its existence had entered the public domain. The Commercial Court ([2020] EWHC 415 (Comm); Foxton J) had found that similar claims by other claimants, all filed six years after the European Commission’s decision, were time barred because those claimants could with reasonable diligence have discovered the facts necessary to bring their claims some time before the publication of the decision. This was largely due to information about a parallel investigation into cartel activity in the United States which the judge had found to be known to and of general interest to purchasers of DRAM such as the claimants. The judge however held that OTC was in a different position, as it had already ceased trading at the time this information became available. What mattered therefore in OTC’s case was (in essence) what a reasonably diligent insolvency practitioner could have discovered. On the facts of the case, the sporadic reports in national newspapers were not sufficient to set time running.

The Court of Appeal (Jackson, Coulson and Males LJJ) agreed with the judge’s approach. The Appellants had contended that the judge had erred because the guidance previously given by the Court of Appeal in Paragon Finance Plc v DB Thakerar & Co [1999] 1 All ER 400 that the test for reasonable diligence was ‘how a person carrying on a business of the relevant kind would act’ was binding on the judge and meant that OTC had to be treated, for the purposes of limitation, as if it had continued to carry on its business as a computer manufacturer. The Court rejected this contention as artificial and found that the guidance in Paragon simply did not apply in the context of a claimant that had ceased to carry on a business. It found that while the test in s.32(1) of the Limitation Act was an objective one, it was nonetheless focused on the actual claimant and directed at ensuring that the actual claimant was not disadvantaged by the concealment. The purposes of the objective test was to ensure that ‘claimants in a similar position should be treated consistently. However, a claimant in administration or liquidation which is no longer carrying on business is not in a similar position to claimants which do continue actively in business and it is unrealistic to suggest otherwise’ (at [59]).

In comments more generally applicable to statutory interpretation, the Court stressed that ‘it is a mistake to read a judgment as if it were a statutory text, especially on a point that was not in issue’ (there was no insolvent claimant in Paragon Finance) (at [55]). The focus had to be on the language and purpose of the statute itself: ‘To treat the terms of a judgment as laying down a rule of law applicable to circumstances which were never in contemplation runs counter to the whole approach of the common law, which develops flexibly as new factual situations arise. What was said in Paragon Finance has rightly been described as “authoritative guidance”, and no doubt will provide the answer in many cases, but it can be no more than guidance. To treat it as providing an answer to the present case would be to force a square peg into a round hole. What matters are the language and purpose of section 32’ (at [56]).

The judgment can be found here.

Stefan Kuppen acted for the claimant respondent OTC.

The Rank Group plc v HM Revenue and Customs [2020] EWCA Civ 550, [2020] STC 1155

On 24 April 2020, the Court of Appeal dismissed Rank’s appeal against HMRC’s refusal to repay a £67m refund of VAT overpaid between 1996 and 2002.  The Court upheld, on different grounds, the decision of the Upper Tribunal [2019] UKUT 100 (TCC).  The Court rejected Rank’s attempt to circumvent the 4-year limitation period that had time-barred its earlier claims for those sums, made in 2011 under s.80(1) VATA.  In 2013, Rank made a new claim for a refund of those sums under s.80(1B), in combination with the set-off provisions of s.81(3) and (3A) and dicta in Birmingham Hippodrome Theatre Trust Ltd v RCC [2014] 1 WLR 3867.  Rank argued that HMRC should have brought Rank’s out-of-time claim into account when calculating other, earlier, in-time s.80(1) claims; that, by failing to do so, HMRC had underpaid Rank £67m in respect of those in-time claims; and that HMRC’s underpayment of the £67m was to be construed as an overpayment by Rank of the same sum.

On 23 February 2021, the UK Supreme Court refused Rank’s application for permission to appeal.

Andrew Macnab represented HMRC throughout.  Read the full decision of the Court of Appeal here

Bechtel Ltd v High Speed Two (HS2) Ltd ((No.2) Costs of the interested party)

Judgment of 24 March 2021; Fraser J; [2021] EWHC 640 (TCC).

The TCC yesterday handed down an important judgment on the ability of interested parties to recover their legal costs in public procurement litigation, including costs incurred to protect commercially confidential information and comply with confidentiality ring provisions.

The ruling arises out of litigation between Bechtel Ltd. and HS2 Ltd. regarding a contract for the construction of Old Oak Common Station, a “super-hub”, which will connect the HS2 line with the West Coast Main line, Heathrow Express and Crossrail. Once completed, Old Oak Common will be one of the largest and most expensive stations ever built in Europe.

Fraser J dismissed Bechtel’s claim ([2021] EWCH 458 (TCC)) and following that judgment, ‘BBVS’, the winning bidder and an interested party to the proceedings, made an application for costs: (1) incurred to comply with the confidentiality ring provisions and protect its own confidential information; and (2) arising out of the plea by Bechtel for a declaration of ineffectiveness.

BBVS was awarded the former category of costs but not the latter. In his judgment, Mr Justice Fraser set out (at paragraph 25) principles “of general application to costs applications by interested parties in procurement challenges”. It would also appear that these principles will also be relevant to public procurement claims commenced in the Administrative Court by way of judicial review.

Michael Bowsher QC and Ligia Osepciu were instructed for Bechtel.

Anneliese Blackwood and Will Perry were instructed for BBVS, the interested party. Philip Moser QC was also instructed for BBVS at an earlier stage of proceedings.

Please click here to read the case note.

The EU General Court dismissed an application brought by ViaSat Inc (“ViaSat2”) for the annulment of various decisions taken the European Commission and/or for the Commission’s failure to act regarding the pan-European authorisation of mobile satellite services on the 2GHz frequency band. Those frequencies were awarded, following a competitive tender, to a UK company, Inmarsat Ventures Ltd (“Inmarsat”), who has launched in-flight satellite broadband services to airplanes and passengers travelling across the European airspace. ViaSat, who is a direct competitor to Inmarsat, has brought litigation in a number of States, including the UK , seeking to set aside Inmarsat’s authorisations.

Viasat’s challenge alleges that Inmarsat’s European Aviation Network (EAN), which dynamically uses its satellite with ground components, is not compatible with the conditions of its spectrum licence. It sought to argue that the Commission was obliged to take steps to revoke the award of the frequencies and to intervene to restrain the national competent authorities in all EU States from granting national authorisations to operate the EAN.

The General Court dismissed all of ViaSat’s arguments. The action for failure to act under Article 265 TFEU was inadmissible since the Commission had responded explaining why it was not obliged to adopt the measures sought. The action for annulment was dismissed since the Commission lacked competence, under the EU regulatory framework established for mobile satellite services, to take the measures requested by ViaSat.

Anneli Howard QC, instructed by Jones Day, acted for Inmarsat in its intervention before the General Court in support of the European Commission.

The judgment is here.

In the first case of its kind, the Western Sahara Campaign UK (“WSCUK”) has brought a legal challenge to the domestic implementation of the UK’s new post-Brexit trade arrangements with Morocco, set out in the UK-Morocco Association Agreement.

The UK-Morocco agreement is controversial in that it purports to apply to products and resources from Western Sahara, over which Morocco claims territorial sovereignty, despite the International Court of Justice having ruled no ties of sovereignty exist.

WSCUK contends that the provisions of the agreement which purport to extend to Western Saharan resources are contrary to the principle of self-determination and treaty law prohibiting the imposition of obligations on a third party to a bilateral treaty. WSCUK contends that the provisions which purport to apply to Western Sahara must be read down or treated as of no legal effect. WSCUK’s case is that domestic implementing legislation giving effect to the UK-Morocco Association Agreement misconstrues the relevant treaty provisions and is therefore ultra vires the Taxation (Cross-border Trade) Act 2018.

This is the first occasion on which the domestic courts have been called upon to interpret one of the UK’s new post-Brexit trade agreements and rule on the legality of the domestic implementation of that agreement by reference to principles of international law.

Conor McCarthy has been instructed by Leigh Day for the Claimant in this case.

Which? today announced that it has launched opt-out collective proceedings, on behalf of millions of UK consumers, against US-based wireless telecoms company Qualcomm Incorporated. Which? is represented by an all-Monckton team of Jon Turner QC, Anneli Howard, Michael Armitage and Ciar McAndrew.

In summary, Which? alleges that Qualcomm abuses its dominant position on the relevant markets for the supply of chipsets used in smartphones and the licensing of associated standard essential patents, in order to force smartphone manufacturers across the industry to pay inflated “royalties” for Qualcomm’s technology. These royalties operate as an industry-wide tax which is passed on to final consumers.

Which? has applied to be authorised to act as the class representative on behalf of approximately 29 million UK consumers who have purchased qualifying Apple or Samsung smartphones since October 2015. The proposed class is estimated to have suffered losses totalling approximately £482.5 million.

The counsel team is instructed by Nicola Boyle, Wessen Jazrawi and Lucy Rigby of Hausfeld & Co. LLP.

The proposed collective proceedings have received extensive media coverage, including from the BBC, Sky News, City AM, the Mirror, the Daily Mail and inews.

This claim is the latest in a series of proposed collective proceedings in which Monckton members have been instructed. Monckton Chambers has unparalleled expertise and experience with collective proceedings, its members having appeared in all major class actions to date: Merricks, FX, Pride, Train Tickets, Trucks, Le Patourel and McLaren.

 

In a judgment handed down today, the CAT has dismissed Lexon’s appeal against the CMA’s Information Exchange Infringement decision with respect to Nortriptyline, a medicine used to treat depression.

The infringement was comprised of exchanges of information over a 10 month period between Lexon, which is primarily a wholesaler of pharmaceutics, and two of its competitors (King and Alissa). The CMA imposed a fine of £1.2 million on Lexon and issued proceedings in the High Court seeking a Competition Disqualification Order against Lexon’s principal director, Mr Pritish Sonpal.

Lexon argued in particular that the CMA failed to establish the existence of a “by object” restriction of competition and challenged the fine. The CAT rejected Lexon’s appeal on all grounds. The judgment provides an interesting overview of the law on “object” infringement.

Josh Holmes QC, David Bailey and James Bourke acted for the CMA. Mark Brealey QC acted for Lexon.

The judgment can be found here.

R (Good Law Project Ltd & ors) v Secretary of State for Health and Social Care

Judgment, 19th February 2021; Chamberlain J; [2021] EWHC 346 (Admin)

This is the first in a series of procurement law judicial review (JR) cases relating to Covid-19 brought by the Good Law Project (GLP) to have reached the judgment stage. The case concerned the (non)publication of contract award notices (CANs) within 30 days under regulation 50 Public Contracts Regulations 2015 (PCR) and of other contract notices and materials within 20 or 90 days under relevant transparency policies.

The judgment is noteworthy for findings on standing in procurement JRs, on the potentially binding nature of Government policy statements and on appropriate remedies. The Judge also made an important and novel ruling as to the High Court’s jurisdiction in relation to the recording and televising of video proceedings under the Coronavirus Act 2020.

The Claim

The Claimants were the GLP and a group of MPs. They complained of “a conscious decision to de-prioritise compliance with regulation 50 and with the Transparency Policy and Principles” in relation to Covid-19 related procurement of goods and services by the DHSC since March 2020 and sought declaratory and mandatory relief. The breach of reg 50 (but not of the policies) was admitted by the DHSC, citing the extraordinary circumstances of the pandemic. Any “de-prioritisation policy” was denied. The DHSC also argued that neither the GLP nor the MPs had standing.

Standing

On standing, the Court held that the GLP had standing on the facts of the case but that the four MP Claimants did not. On the GLP, the Court followed and restated the test for standing in procurement law JRs in Chandler [2009] EWCA Civ 1011 and found that an organisation such as the GLP had standing because a challenge alleging breach of the publication obligation of reg 50 and associated policies was not one that an economic operator could realistically be relied upon to bring in Part 7 proceedings under the PCR. The MPs did not have standing however, since where there is already a claimant with standing, there is no reason for standing for additional parties, applying Jones [2020] 1 WLR 519.

Substance and relief

On the substance, the Court found that there was no “de-prioritisation policy” as alleged. In addition to the admitted breach of reg 50, the Court also found a breach of the publication policy, on the basis of its precise terms, according to specific dates. Hence the DHSC had a common law duty to comply with it, absent good reason to depart from it, which departure would however have to have been done contemporaneously, not ex post facto.

On relief, the Court refused mandatory relief in circumstances where the position on publication at the date of the hearing had moved close to complete compliance. It granted declaratory relief on the breaches found.

Rebroadcasting video proceedings

In a postscript the Judge explained his refusal to give permission for a television production company to record and re-broadcast the proceedings, which the Claimants had applied for. Section 41 of the Criminal Justice Act 1925 imposes a general prohibition on photography in court which extends to video recordings: Loveridge [2001] EWCA Crim 973. No exception applies to Administrative Court proceedings and this had not been altered by ss. 85A and 85B of the Coronavirus Act 2020 on “proceedings conducted wholly as video proceedings”. There is accordingly no power to permit proceedings in the Administrative Court to be recorded for the purposes of broadcast, even when the proceedings are conducted wholly as video proceedings.

Philip Moser QC and Ewan West of Monckton Chambers acted for the Secretary of State.

The Administrative Court has handed down judgment this morning in judicial review proceedings concerning the scope of the duty on local authorities and NHS clinical commissioning groups to provide after-care services for patients who have previously been “sectioned” under the Mental Health Act 1983. Michael Armitage acted (unled) for the successful Claimant (AK), a 16-year-old child with post-traumatic stress disorder and a range of associated mental health problems who had for many months been detained for the purposes of treatment in a psychiatric hospital. The Claimant established that the relevant local authority and NHS clinical commissioning group had failed lawfully to assess and plan for AK’s needs for after-care services under section 117 of the 1983 Act following her discharge from hospital, including because of a failure to comply with the applicable Code of Practice. The case is noteworthy because there is no previous reported case on the precise nature of the assessment and planning obligations under section 117. A copy of the judgment is here.

The Claimant was represented throughout the proceedings by Michael Armitage, instructed by Rebekah Carrier of Hopkin Murray Beskine. Michael has developed a specialism in judicial review claims concerning NHS clinical commissioning groups, having also recently acted for the successful Claimant in judicial review proceedings concerning the provision of NHS continuing healthcare (here).