Monckton Chambers are pleased to announce that a further three tenants have been appointed to the FoI Panel. Ian Rogers, Ben Lask and Alan Bates join George Peretz and Gerry Facenna.  The Treasury Solicitor’s Department set up the specialist panel to act in appeals under the Freedom of Information Act 2000 (FOIA) on behalf of government departments in the summer of 2008.

In addition to their new appointments, all members remain free to act in FOIA appeals for private and other public bodies or interest groups seeking access to information.

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Ian Rogers
Alan Bates
Ben Lask

The Court of Appeal (Criminal Division) has given judgment on the first contested criminal proceedings under the ‘cartel’ offence in section 188 of the Enterprise Act 2002.  The defendant, with others, were senior executives in a major company charged with dishonestly agreeing to effect a price fixing arrangement between their company and a competitor.

The issues in the appeal were whether the cartel offence amounted to a “national competition law” within the meaning of Council Regulation (EC) No 1/2003 (“the Modernisation Regulation”), and, if so, whether the Modernisation Regulation prevents the Crown Court from trying an indictment alleging the cartel offence, or imposing a punishment if it is proved to have been committed, when the Crown Court has not been designated as a National Competition Authority under the Regulation.  The Court of Appeal answered both questions in the negative, and dismissed the appeal by the defendant.

Jon Turner QC and Anneli Howard represented the OFT, together with Richard Latham QC, Mark Lucraft QC and Thomas Payne.

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Jon Turner QC
Anneli Howard

The High Court yesterday dismissed an application by Dŵr Cymru (Welsh Water) for judicial review of Ofwat’s policy on “inset appointments” made under section 7(4)(b) of the Water Industry Act 1991 (“the Act”).

That section allows Ofwat to appoint a new operator to replace the incumbent water and sewerage operator on unserved sites (usually development sites).  Over 20 inset appointments have been made.

Ofwat’s policy is to grant inset appointments to applicants who can show both that they can operate the appointment on a sound financial basis and that consumers on the site will be no worse off than they would be with the incumbent.  Welsh Water argued that that policy was unlawful: in its view, Ofwat was required by the Act to find that an incumbent would offer positive advantages to consumers on the site before it could grant an inset appointment.

In a judgment given orally at the close of argument yesterday, Mr Justice Mitting accepted Ofwat’s evidence that its “no worse off” policy had led to benefits for water customers generally, and held that nothing in the Act precluded that policy.  The Judge also rejected an argument by Welsh Water that Ofwat’s policy failed to comply with social and environmental guidance issued by the Welsh Assembly Government, observing that that guidance could not displace Ofwat’s general duty under the Act to promote competition.

Ofwat was represented by John Swift QC, George Peretz, and Ewan West.  A transcript of the judgment is expected to be available shortly.

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John Swift QC
George Peretz
Ewan West

In October, the OFT published a draft guidance consultation document, “Mergers – Exceptions to the duty to refer and undertakings in lieu”.  The draft proposes significantly to amend the existing guidance on the de minimis exception and also clarifies the OFT’s approach to the assessment of customer benefits.  The undertakings in lieu section contains an important discussion of the upfront buyer mechanism.  The deadline for comments is 15 January 2010.

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Alistair Lindsay

The EU Parliament Committee on the Internal Market and Consumer Protection (IMCO) is currently preparing a report on New Developments in Public Procurement.  It will, apparently be receiving written representations as well as holding a hearing in early 2010.  Topics of concern include issues such as certainty and clarity in the current law, the current state of the law on intercommunal cooperation in light of recent case law, and particularly the application of social, environmental and fair trade criteria.  On this last topic, the podcast recorded earlier this year of a conversation between Joshua Rozenberg, Paul Lasok QC and Michael Bowsher QC addresses some of the current hot issues.

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Paul Lasok QC
Michael Bowsher QC

Monckton tenant, Jeremy McBride has recently published a book entitled “Human rights and criminal procedure – The case law of the European Court of Human Rights”

The book is intended to assist judges, lawyers and prosecutors to take account of the many requirements of the European Convention on Human Rights – both explicit and implicit – for the criminal process when interpreting and applying Codes of Criminal Procedure and comparable or related legislation.

It does so through extracts from key rulings of the European Court of Human Rights and the former European Commission of Human Rights dealing with complaints about violations of Convention rights and freedoms in the course of the investigation, prosecution and trial of alleged offences, as well as in the course of appellate and various other proceedings linked to the criminal process.

The extracts are significant not only because the mere text of the Convention is insufficient to indicate the scope of what is entailed by it but also because the circumstances of the cases selected give a sense of how to apply the requirements in concrete situations.

For more information, and to purchase a copy of the book, please click here.

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Jeremy McBride

The issue in this case is whether it could be proper and lawful for a court to order that a “closed material” procedure be adopted in a civil claim for damages.   Such a procedure would involve the use of Special Advocates who could receive material which was not seen by the claimants themselves.

The issue arises in the present claim, which has been brought against organs of the State by seven former detainees, who have been held by foreign states at various locations including in each case the United States’ detention facility at Guantanamo Bay.

Such “closed material procedures” have operated in SIAC and in relation to Control Orders (amongst other matters) but could it be lawful and proper for a court to order that a closed material procedure be adopted in a civil claim for damages?

Mr Justice Silber considered that it can be lawful and proper for a court to order that a closed material procedure as defined in the preliminary issue can be adopted in a civil claim for damages.

The criticisms of the claimants and the Interveners that the closed material procedure introduces a new and previously unheard of level of secrecy into the present claims for damages such that they should never be adopted were not upheld.

Daniel Beard acted with others  for the government.

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Daniel Beard QC

In a virtually unprecedented urgent decision, the Information Commissioner has upheld a complaint by the Campaign for Clean Air in London (CCAL) regarding the government’s refusal to release full details of a meeting with the Mayor of London on air quality matters in January 2009.

CCAL’s request for the briefing papers and communications under the Environmental Information Regulations 2004 was made in the belief that the requested information may call into question statements made by the government to the European Commission in relation to an application for a time extension for the UK to comply with legal standards on dangerous airborne particles (PM10) under European Directive 2008/50/EC on Ambient Air Quality and Cleaner Air for Europe.

While complaints to the Information Commissioner can take up to a year or more to be determined, CCAL argued in this case that there was a pressing need for urgency and – applying a new “triage” prioritisation procedure – the Information Commissioner issued a decision in less than a month, upholding CCAL’s complaint and requiring the Department for the Environment, Food and Rural Affairs to release the information.

It is the first time a case has been prioritised by the Information Commissioner under the “triage” procedure, and provides a helpful precedent for other requesters frustrated by the well-publicised delays in the FOIA regime.

CCAL is advised on a pro bono basis by Gerry Facenna and Laura Elizabeth John.

Simon Birkett, founder of CCAL, said:

“The Campaign for Clean Air in London would never have succeeded on all counts in challenging the government’s refusal to release crucial information about air quality meetings without decisive advice from Gerry and Laura.  By identifying the key issues and making a strong case for an urgent response from the ICO, they have broken new ground.”

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Gerry Facenna
Laura Elizabeth John

The ECJ upheld RCI’s claim that it should not pay UK VAT in connection with RCI’s scheme for swapping time-share accommodation.  The case centred on the interpretation of Article 9 of the Sixth Directive concerning supplies in connection with property.  HMRC considered that: (i) UK VAT was applicable to the enrolment and subscription fees (pursuant to Art. 9(1)); and further, (ii) that, where the holiday home which the member acquired the right to use was situated within the EU, UK VAT also had to be paid on exchange fees.

The ECJ rejected the United Kingdom’s submission that RCI’s activities were analogous to those of a travel agency.  When using RCI’s service to effect an exchange, the member was paying not for the supply of a holiday, but for the service provided by RCI that facilitated the exchange of the member’s existing usage rights relating to a particular property.  It followed that the property with which RCI’s services were connected was the property in which the timeshare owner’s timeshare was held.

It is only the second time the ECJ has ever looked at the place of supply of transactions connected with property.

Melanie Hall QC represented RCI

Raymond Hill represented the UK government.

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Melanie Hall QC
Raymond Hill

It was with great sadness that Chambers recorded the death of Rupert Anderson QC on 30 July 2009.

Rupert, who was called to the Bar in 1981 and took silk in 2003 was a well liked member of Chambers and a phenomenally gifted barrister.  He will be greatly missed.

There will be a memorial service on 5 November 2009, Temple Church, 5.45pm.  Followed by a reception at Inner Temple Hall.  Please attend to bear witness.