On the 30October 2009 Mr Justice Tugendhat gave judgement in Accentuate Ltd -v- Assigra Inc, a case concerning the relationship between EU law and the law of arbitration.

The judge held that English courts must give effect to mandatory provisions of EU law, notwithstanding any expression to the contrary on the part of the contracting parties, including the situation where the contract had provided for a foreign place of arbitration and a foreign law and the arbitration had not given effect to a mandatory provision of EU law.

Philip Moser acted for the appellant.

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Philip Moser QC

The European Court of Justice this morning published Advocate General Kokott’s opinion in Case C-406/08 Uniplex -v- UK. The case was referred to the ECJ by the High Court and concerns some very important issues in the law of Public Procurement, notably the question of the time from which limitation periods may start to run.

Kassie Smith appeared on behalf of the UK Government.

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Kassie Smith QC

The Court of Appeal (Rix LJ, Lloyd LJ, Sir David Keene) dismissed an appeal against the decision of the Administrative Court refusing Judicial Review of various decisions of the Home Secretary concerning the application of Article 49 EC (the freedom to provide services).

The decision under appeal (R(Lee Ling Low, Rising Sun Catering, Hot Hot Grill and Bar Ltd and others) v Secretary of State for the Home Department [2009] 2 C.M.L.R. 22 was the lead case among 23 Judicial Review applications. A further 650 cases had been dealt with in the same manner by the Home Secretary.

The appeal concerned a scheme in which an Irish company entered into an agreement to supply catering services to a UK restaurant company. The services were to be provided by third country nationals who were illegally present in the UK and had no right to reside in Ireland. An application was made on behalf of the Irish company, UK company and the third country nationals in this and hundreds of other cases, seeking confirmation of the workers’ status as “posted workers” of the Irish company under Article 49 EC and the principle of derivative rights.

The Court of Appeal considered a series of decisions relating to posted workers and Article 49 in the European Court of Justice, the best known of which is Case C-43/93, Vander Elst, [1994] ECR I-3803, together with ECJ case law decided in other contexts. The Appellants argued that the logic of the existing case law should be extended to cover the facts of the present case, with the effect that the UK should grant temporary rights to reside in the UK to the third country nationals, in order to render the Irish company’s freedom to provide services in the UK effective. The Court of Appeal refused the Appellants’ request to make a reference to the ECJ. Reasons for the judgment will be given at a later date. If you wish to be notified when this judgment is available, please send an e-mail to one of the clerks.

Ian Rogers appeared for the Home Secretary

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Ian Rogers

An application by Barclays Bank plc for a review under section 179 of the Enterprise Act 2002 of certain findings made by the Commission contained in a report entitled “Market investigation into payment protection insurance” was decided today.  The Commission found that there were features of the PPI market which prevented restricted or distorted competition in connection with the supply of PPI in the United Kingdom.

The Tribunal concluded that the Commission had failed to take into account the loss of convenience which would flow from the imposition of the POSP in assessing whether it was proportionate to include it in its proposed remedies package.  In the Tribunal’s view, this constituted a failure to take into account a relevant consideration, and the Tribunal has therefore decided to quash that part of the Report which imposes the POSP as part of the proposed remedies package and remit the question whether a POSP should be so included for the further consideration of the Commission in accordance with the principles set out in the Tribunal’s judgment.

John Swift QC, Kassie Smith and Elisa Holmes represented the Commission

Paul Lasok QC and Tim Ward represented the intervening party, Shop Direct Group Financial Services Ltd

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Paul Lasok QC
John Swift QC
Tim Ward QC
Kassie Smith QC
Elisa Holmes

Monckton tenant Jeremy McBride has prepared a study for the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe on ‘The specificity and added value of the acquis of the Council of Europe treaty law’ which will form the basis of a report to be prepared by the Committee’s rapporteur, John Prescott, under the heading ‘For a greater commitment of member states concerning the efficiency and implementation of the Council of Europe Treaty Law’.

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Jeremy McBride

[2009] EWHC 2382 (Admin)

A significant public law case was handed down on 1 October 2009, concerning the competing interests of, on the one hand, public access to information about the accounts of public bodies and, on the other, the rights of third parties to commercial confidentiality. The judgment contains an extensive survey of the authorities concerning the scope of electors’ rights under the Audit Commission Act 1998.

In accordance with the 1998 Act, the Council notified the public that “the accounts to be audited and all books, deeds, contracts, bills, vouchers and receipts relating to them” were to be open for inspection for a four week period. Mr Dowen was a local elector and environmental campaigner, who made a request under section 15 of the Audit Commission Act 1998, for information relating to a waste management contract entered into between the Council and its contractor, Veolia. The Council determined, on advice, that it was obliged to disclose certain information pursuant to the Act.

Veolia applied for judicial review of the Council’s decision, asserting that certain pricing formulae contained in the contract and the invoices it submitted constituted commercially confidential data. It contended that the information is valuable to commercial competitors and to its sub-contractors and that if the information entered the public domain it would damage its ability to compete in bids with other local authorities and it would impair its ability to hold down sub-contract prices in the contract.

Cranston J held that the Council had correctly decided to provide the information sought, and that the exceptions to disclosure under section 15 did not cover Veolia’s claim of commercial confidentiality.

Ian Rogers represented the Council.

To view the judgment, please click here.

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Ian Rogers

The shortlists for these awards are now online and we are pleased to announce that Valentina Sloane has been nominated for the ‘Rising Star within Indirect Tax’ award.

The results will be announced on 15 October 2009 at the Glaziers Hall in London.

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Valentina Sloane

Monckton Chambers was honoured to be awarded the accolade of “Set of the Year” for our work in the field of EU and competition law at the fifth annual Chambers Bar Awards held at the Grosvenor House Hotel, London.

The work of Daniel Beard was also recognised last night as he scooped “Junior of the Year” in the same field.

Congratulations to everyone.

Monckton Chambers is delighted to welcome two new tenants, Ligia Osepciu and Owain Draper following their successful completion of pupillage.

During pupillage, Ligia appeared as a junior in the High Court in JB Leadbitter v Devon County Council [2009] EWHC 930 (Ch) (led by Michael Bowsher QC and Elisa Holmes), a leading case on the application of the EC law principle of proportionality in the procurement context.

Ligia said, “I am very pleased and excited to be joining Monckton Chambers as a tenant.  My pupillage at Monckton has afforded me great experience of European and commercial law practice and I hope to be able to contribute to Chambers’ tradition of excellence in these areas.”

Owain said, “I am pleased to join Monckton Chambers as a tenant primarily because of its deserved reputation for excellent work in all of its areas of practice.  I am confident that I will be able, in developing a broad EU law based practice, to emulate the more experienced members of Chambers in giving equal importance to intellectual rigour and hard work, on the one hand, and approachability, on the other.  I look forward to working with both public and private clients in the varied contexts of competition law, indirect taxation and commercial litigation.”

From October until mid-December 2009, Owain will be undertaking a stage in the chambers of Eleanor Sharpston QC, the English Advocate General to the European Court of Justice in Luxembourg.  This, it is intended, will provide an invaluable opportunity to increase his knowledge of and experience in European law litigation and, in particular, the process at the ECJ.

Commenting on Monckton Chambers’ latest tenants David Hockney, Senior Clerk, said, “I am delighted that Owain and Ligia have joined Chambers.  Having completed successful pupillages they can now look forward to fruitful careers in Chambers.”

Monckton Chambers now has a total of 51 members.

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Ligia Osepciu

On 1 October 2009, the European Court of Human Rights handed down its judgment in Kimlya and Others v. Russia, which concerned an application lodged with the Court under the European Convention on Human Rights by two Russian nationals, Mr Kimlya and Mr Sultanov, and an unincorporated religious group, the Church of Scientology of Nizhnekamsk.

The applicants complained about the domestic authorities’ decisions refusing State registration of the applicants’ religious groups as legal entities, which in turn relied upon a legal provision in Russia’s Religions Act that requiring religious groups to be in existence in a locality for 15 years before they could obtain legal entity status.  The applicants complained that this rule prevented their religious groups, which had been in existence in the locality for less than 15 years, from exercising fundamental aspects of the right to practice their religion.  They also maintained that the rule unfairly discriminated against new religious groups.

The Court held unanimously that the resulting situation gave rise to a violation of Article 9 (freedom of religion) read in the light of Article 11 (freedom of association).

Monckton tenant Drew Holiner, who is also a member of the Russian bar, acted for the applicants.

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Drew Holiner