The CMA has withdrawn a record penalty, imposed on JD Sports and its parent Pentland Group, following the lodging of an appeal.

The £300,000 penalty related to an alleged breach of an Initial Enforcement Order addressed to JD Sports and Pentland. Among other things, the CMA found that they had failed to issue adequate guidelines to ensure compliance.

The parties lodged a joint appeal, arguing that there was no breach, and that the CMA had based its decision on fundamental factual errors. In light of the issues raised on the appeal, the CMA withdrew its decision.

No further action by the CMA is now expected.

The CMA’s investigation concerned the market for the provision of platform solutions to investment platforms. Investment platforms enable investors and their advisers to invest in a range of assets, including funds, shares, bonds and other securities. The CMA had found that the merger raised substantial competition concerns in the supply of retail platform solutions to investment platforms in the UK. It ordered FNZ to divest itself of the entire of GBST.

FNZ had challenged the decision before the Competition Appeal Tribunal alleging that there were flaws in the CMA’s counterfactual analysis, market definition, competition analysis and that the remedy was disproportionate.

In response to the Notice of Application, the CMA did not defend its decision before the CAT, but instead asked that it be remitted for reconsideration. The CMA has now published its intended process for the conduct of the remittal, provisionally set to complete by mid-May 2021.

The inquiry page can be found here.

It is believed that this is only the second time that the CAT has quashed a merger decision without a hearing on the basis of the CMA accepting flaws in its decision.

FNZ was represented by Daniel Beard QC and David Gregory.

R (Black) v Secretary of State for Justice

The Administrative Court has refused permission to apply for judicial review to a prisoner seeking to challenge restrictions on child communication placed upon him by his prison.

The Claimant has been identified as a ‘person posing a risk to children’ (‘PPRC’) and is subject to a Sexual Offences Prevention Order (‘SOPO’). The relief he sought was to be permitted to receive photographs showing children and to be able to send greetings cards to child family members.

The Claimant sought to challenge the restrictions on communications with children imposed upon him in application of the Public Protection Manual 2016 (PSI 18/2016) on the basis that they were contrary to s106(3) of the Sexual Offences Act 2003 and that they were contrary to the SOPO.

The Administrative Court has refused permission and accepted the Secretary of State’s submission that the claim ought to be certified as totally without merit. The Court ruled that as the prisoner identified as having PPRC status had not first applied to the prison for child contact in respect of a specified child, a judicial review of the restrictions upon that prisoner was premature.

Imogen Proud acted for the Secretary of State for Justice.

The First Tier Tribunal has ruled that the ICO’s guidance, permitting public bodies to cite the two national security exemptions “in the alternative”, is incorrect as a matter of law. The Tribunal considered that the requirement to “specify” the exemption relied on meant that the public body could not cite an alternative exemption for purely tactical reasons, knowing that it did not apply, in order to mask the actual reasons for its decision.

Alison Berridge appeared for one of the three appellants.

The decision is available here.

Ronit Kreisberger QC, Alison Berridge and Jack Williams have been instructed by the proposed class representative, Justin Le Patourel, in opt-out collective proceedings against BT for alleged excessive pricing in abuse of its dominance position in standalone landline telephone services. The proposed class representative proposes to represent over 2 million consumers and has an estimated value of up to £600m.

The opt-out collective procedure in the Competition Appeals Tribunal has recently been given a significant boost from applicants’ perspectives by the success of Mr Merricks in the Supreme Court, represented by Paul Harris QC.

The counsel team are instructed on behalf of the proposed class representative by Mischon de Reya’s Rob Murray and Natasha Pearman.

Ronit Kreisberger QC is also acting for Mitsubishi Bank of Tokyo in Mr Phillip Evans v Barclays Bank and Othrs and Michael O’Higgins v Barclays Bank and Othrs. Jack Williams was counsel for the (successful) respondent in the first opt-out collective proceedings in the CAT, Dorothy Gibson v Pride Mobility Products Ltd [2017] CAT 9. Monckton Chambers has unparalleled expertise and experience with collective proceedings, having had members appear all actions brought to date, including Merricks, FX, Pride, Train Tickets and Trucks.

Related coverage about the collective proceedings can be found at: The Times, BBC, Mail Online, The Express, The Sun, CityAM, Bloomberg, Legal Week, Metro, Daily Mirror.

In a test case for the education sector, Melanie Hall QC and Elizabeth Kelsey have secured a significant win against HMRC on
the notoriously difficult question of when VAT is payable on Government funding.

Click here for the decision of the Upper Tribunal chaired by Whipple J and here for a case note written by Jack Williams of Monckton Chambers.

Melanie Hall QC and Elizabeth Kelsey represented The Colchester Institute.

Peter Mantle represented HMRC.

Josh Holmes Q.C. and Jack Williams have been instructed by Symphony Environmental Technologies PLC and Symphony Environmental Ltd (the Applicants) in relation a damages action under Article 340 TFEU against the EU Institutions, to be heard before the EU General Court in Luxembourg.

The Applicants allege that the EU institutions are non-contractually liable under Article 340(2) TFEU and Article 41(3) of the Charter of Fundamental Rights in respect of the adoption of Article 5 and Recital 15 (insofar as they apply to oxo-biodegradable plastic) of Directive (EU) 2019/904 of the European Parliament and of the Council of 5 June 2019 on the reduction of the impact of certain plastic products on the environment (OJ L 155, 12.6.2019, p. 1–19) (“the Directive”).

Article 5 of the Directive directs that Member States “shall prohibit the placing on the market of the single-use plastic products listed in Part B of the Annex and of products made from oxo-degradable plastic”.

The Applicants argue that insofar as the restriction imposed by Article 5 of the Directive encompasses, by means of the definition of “oxo-degradable plastic” in Article 3(1) and (3), a total prohibition of the placing of oxo-biodegradable plastics on the market (“the Article 5 Prohibition”), it is unlawful. This is on the basis that the adoption of the Article 5 Prohibition is vitiated by procedural errors, breaches the principle of proportionality, is based on manifest errors of assessment, fails to take into account relevant considerations, is discriminatory and breaches the Applicants’ fundamental rights. Accordingly, they seek damages.

Josh and Jack are representing the Applicants in accordance with their continued rights of privilege and audience before the EU Courts under the arrangements in the Withdrawal Agreement for cases started before the end of the transition period. Both also retain rights of privilege to advise confidentially on any new matters of EU law and represent clients before the EU Courts on account of their being called to the Irish Bar (in addition to the Bar of England and Wales).

Fenix International Ltd v RCC [2020] UKFTT 499 (TC) (First-tier Tribunal, Tax Chamber, 15 December 2020)

Fenix International Ltd is the operator of the well-known Only Fans website/online social media platform, which allows “Creators” to post content for “Fans” in return for payment. Fenix’s case is that it acts as agent in respect of transactions between Creators and Fans. Fenix charges Creators a 20% commission on all sums paid by Fans and accounted for VAT in respect of that intermediary service for the accounting periods at issue. Thus, if a Fan pays 100 and Fenix charges the Creator commission of 20, Fenix accounted for VAT on the 20, rather than the 100.

HMRC have assessed Fenix for VAT on the basis that Article 9a of Council Implementing Regulation (EU) No. 282/2011, which was directly applicable in the UK prior to IP Completion Day (23:00 GMT on 31 December 2020) and which remains applicable in the UK, deems Fenix to be liable for VAT on 100. Fenix has appealed against those assessments to the First-tier Tribunal (Tax Chamber) (“FTT”), arguing that the deeming provisions go beyond the power to “implement” the Principal VAT Directive, in this case Article 28 PVD, conferred on the Council by Article 397 PVD. Prior to IP Completion Day, any challenge to the validity of an EU Regulation could only be entertained by the CJEU; and challenge before a national court had to be referred for a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union (“TFEU”).

On 15 December 2020, the FTT referred a question to the CJEU concerning the validity of Article 9a under Article 267 TFEU. On 22 December 2020, the FTT’s order for reference was registered at the CJEU Registry (as Case C-695/20). On IP Completion Day, the ability of UK courts and tribunals to make Article 267 references (relevantly) ended. The combined effect of the Withdrawal Agreement (Articles 86 and 89) and section 7A of the European Union (Withdrawal) Act 2018 is that the CJEU has jurisdiction to entertain the FTT’s reference and that the FTT and UK will be bound by the CJEU’s answer.

Valentina Sloane QC, leading Max Schofield of 3PB, acted for Fenix.

Andrew Macnab acted for HMRC.

Read the FTT’s decision to refer here.

Just Digital Marketplace Ltd [2021] EWHC 15 (QB), 8 January 2021, Master McCloud

The High Court (Master McCloud), in a Part 8 claim brought by one of the leading players in High Court enforcement, has held and declared that an enforcement agent may enter into a controlled goods agreement (“CGA”) within the meaning of para 13 of Schedule 12 to the Tribunals, Courts and Enforcement Act 200 with a judgment debtor whether or not the enforcement agent has physically entered the premises on which the goods are located. Accordingly, an enforcement agent and judgment debtor can enter into a valid CGA via a video call made over Zoom or other video platform (a “non-entry CGA”).

Master McCloud further held, however, that many of the provisions of Schedule 12 concerning subsequent enforcement of a CGA (involving entry or re-entry on the premises) did not apply to a non-entry CGA; and that it would be a matter for the Government and the legislature to consider the implications of the judgment and whether, and if so what, rules and procedures were required for entry into and enforcement of non-entry CGAs..

Andrew Macnab, instructed by the Government Legal Department, represented the Ministry of Justice, the third interested party.

Read the full decision here.