The Court of Appeal has dismissed an appeal by mobile phone operator Hutchison 3G from a decision of the Competition Appeal Tribunal upholding Ofcom’s determination that H3G enjoys a position of significant market power in the market for mobile voice call termination on its network.  The Court of Appeal rejected H3G’s argument that other regulatory controls on H3G should be taken into account when assessing H3G’s market power.  The effect of the Court’s judgment is to preserve Ofcom’s decision to impose price controls on H3G’s mobile call termination rates.

The Court of Appeal’s judgment marks the final dismissal of H3G’s challenge to Ofcom’s regulation of H3G’s mobile call termination rates.  The Tribunal and the CC have already rejected all other aspects of H3G’s case.

Peter Roth QC and Josh Holmes represented Ofcom

Jon Turner QC and Meredith Pickford represented T-Mobile, who supported Ofcom.

To read the judgment, please click here.

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Jon Turner QC
Josh Holmes
Meredith Pickford

The Times Law Panel is an advisory body of 100 of the country’s most prominent barristers and solicitors, representing a range of expertise from publicly-funded criminal work to high-value commercial transactions. Members have been hand-picked at the discretion of the editors for an indefinite period of time and do not pay to belong.

The Times describes Ronit as “one of the leading junior barristers in the field of competition law. She joined the Bar in 2005 but began her legal career at Herbert Smith, the City law firm. As a barrister, she has acted in major cases such as Vodafone’s challenge to European price caps on roaming charges and three leading bookmakers’ claim against the racing industry about television rights. Kreisberger, an Oxford graduate, joined Herbert Smith in 1998 and later served as a judicial assistant at the Court of Appeal. Her interests include running, theatre, food and wine.”

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Ronit Kreisberger

We are delighted to announce that one of our junior clerks, Sam Fullilove, has been given the accolade Clerk of the Year by the Institute of Barristers’ Clerks.

Sam, who joined Chambers in 2007, was presented with the John Carter Memorial Trophy by Joanna Greenberg QC at the annual IBC Management Committee’s dinner held at the Institute of Directors on 15 July. The award is in recognition of Sam achieving the highest score amongst all this year’s students studying for the BTEC Advanced Award in Chambers Administration. Sam was accompanied to the dinner by our Senior Clerk, David Hockney, who said, “ Sam truly deserves this award for all the hard work and commitment he has put into his studies, and members and staff congratulate him on this magnificent achievement.”

The Court of Appeal has granted permission to appeal to Emerald Supplies Limited against the decision of the Chancellor striking out the representative element of its cartel damages claim against British Airways plc (BA). The claim arises in connection with BA’s alleged participation in a cartel in relation to the fixing of fuel surcharges in connection with airfreight services in breach of Article 81 EC. Emerald brought a claim in its own right against BA but also sought a declaration that BA has infringed Article 81(1) EC and in respect of the heads of loss that may be recovered on behalf of other direct and indirect purchasers of air freight services in order to facilitate potential damages claims by them. The Court of Appeal will now consider the availability in English law of a representative claim in cartel damages claims at a time when collective forms of redress in competition cases are under consideration by a number of interested bodies such as the Office of Fair Trading and the EC Commission. Permission was granted both on the appeal’s prospects of success as well as the importance of the issues raised.

Ben Rayment is junior counsel to Emerald instructed by Hausfeld LLP.

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Ben Rayment

R(Herron) v Parking Adjudicator (Sunderland City Council as Interested Party), 15 June 2009

“Last week, Mr Justice Keith heard a claim that the Traffic Penalty Tribunal (formerly known as the National Parking Adjudication Service) was not independent and impartial, within the meaning of Article 6 ECHR.

His Lordship refused to give permission for the ECHR claim to proceed to a full Judicial Review hearing, saying that he was entirely satisfied that the claim was not arguable. At a previous oral hearing before Mrs Justice Dobbs, the Claimant had been permitted to amend his claim to plead a failure to give adequate reasons, but Mr Justice Keith also refused permission to apply for Judicial Review on this ground. The Parking Adjudicator resisted the human rights and reasons challenges, but adopted a neutral stance at the permission stage on a point of statutory construction, involving the principles of substantial compliance and the effect of deficiencies in traffic signs and road markings in controlled parking zones. The claim will proceed to a substantive Judicial Review hearing on the statutory construction issue alone.”

Ian Rogers appeared for the Parking Adjudicator.

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Ian Rogers

National Grid brought a damages claim against a number of multinational engineering groups (ABB, Areva, Siemens and Alstom) which the EC Commission had found had participated in a cartel relating to Gas Insulated Switchgear (GIS). In bringing its damages claim National Grid relied on the Article 81 infringement decision reached by the Commission.  The engineering companies sought an immediate stay of the claim whilst appeals against the Commission’s decision were heard.  They applied for the claim to be stayed pending the outcome of the Court of First Instance Proceedings and any further European Court of Justice appeals.  National Grid said such an immediate stay should not be imposed even if the final trial could not be dealt with before the European Courts had reached their final decisions.

The Chancellor decided that there should be no immediate stay of proceedings.  Whilst the final trial would not be listed until after any EC appeals, steps towards trial could be taken including the closing of pleadings and the parties meeting with a view to considering appropriate disclosure.  A case management conference would be fixed to consider any disclosure issues arising and other matters.

To read the judgment, please click here.

Jon Turner QC and Daniel Beard represented National Grid

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Jon Turner QC
Daniel Beard QC

The High Court has upheld the bingo and casino operator Rank Group’s claim for a £62 million VAT refund from HMRC. Rank successfully argued that the UK’s different VAT treatment of different types of mechanised cash bingo games breached European fiscal neutrality rules; Rank also successfully argued that a difference in VAT treatment of different types of gaming machine also breached those rules.

Subsequent legislative changes to both gaming and tax law mean that the difference in VAT treatment dealt with in this case is no longer an issue.

To read the judgment, please click here.

Paul Lasok QC and Valentina Sloane represented the Rank Group.

Christopher Vajda QC and George Peretz represented HMRC.

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Paul Lasok QC
George Peretz
Valentina Sloane

Kassie Smith

The judgment of the ECJ in the Bouygues case

On 2 April 2009, the European Court of Justice (“ECJ”) handed down judgment in Case C-431/07 P Bouygues SA v Commission.  The ECJ upheld the judgment of the Court of First Instance (“CFI”).

Member(s) of Chambers involved in this case: Christopher Vajda QC

Both the European Commission and the Department of Justice have appointed women at their helm.  To mark that achievement, Global Competition Review has conducted a world-wide survey of 100 leading female members of the profession to discuss issues such as career progression and promotion, mentoring, discrimination and work-life balance. The 100 Respondents included female partners from leading law firms world-wide, members of the European Commission and national regulatory authorities. Anneli Howard was delighted to be selected as one of two barristers to take part.

To see the GCR guide to the world’s leading women in antitrust, please click here.

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Anneli Howard

Commissioners for Her Majesty’s Revenue and Customs v. Procter & Gamble [2009] EWCA Civ 407

The Court of Appeal has allowed an appeal by HMRC and reinstated the decision of the VAT & Duties Tribunal that Pringles were both “made from the potato, or from potato flour, or from potato starch” and were “similar products” to potato crisps. Accordingly, the Court of Appeal concluded that Pringles were properly standard rated for VAT, falling within Excepted Item 5 to the zero-rating provision (Schedule 8, Group 1, VAT Act 1994). The main message from the Court was that an appeal court should be slow to interfere with a Tribunal’s classification of a product and that this sort of question is “not one calling for or justifying over-elaborate, almost mind-numbing legal analysis.”

Christopher Vajda QC and Raymond Hill were instructed by HMRC in the Court of Appeal. Raymond had previously appeared before the Tribunal and the High Court.

For the Court of Appeal’s judgment, please click here.

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Raymond Hill