The Queen has been pleased to approve the appointment of former Head of Monckton Chambers, Kenneth Blades Parker, Esq., Q.C., to be a Justice of the High Court with effect from 2 October 2009 on the retirement of Mr. Justice McKinnon.

The Lord Chief Justice will assign Mr. Parker to the Queen’s Bench Division. He will be known as Mr. Justice Kenneth Parker.

Head of Chambers, Paul Lasok QC said, “all members of Chambers are delighted to see that Ken has been appointed to the High Court and wish him well in his judicial career”.

Mr. Parker was called to the Bar by Gray’s Inn in 1975 and took Silk in 1992. He was appointed a Recorder in 2000, a Law Commissioner in 2006 and was approved to sit as a deputy High Court Judge.

Members and staff warmly congratulate Kenneth on this prestigious appointment.

In J B Leadbitter & Co Limited v Devon County Council [2009] EWHC 930 (Ch), the High Court confirmed the right of public contracting authorities subject to the Public Contracts Regulations strictly to apply time limits imposed for the receipt of compliant tenders. In this important decision, Mr Justice Richards held that, provided rules regarding compliant tenders have been drawn and applied in ways which are transparent, ensure equal and non-discriminatory treatment and which are proportionate, contracting authorities are entitled to insist on strict compliance.

Mr Justice Richards, considering the application of the principle of proportionality to the terms of a procurement process, held that the general EU law principle of proportionality is capable of applying in these circumstances, so that a court will intervene if the decision of the contracting authority is unjustifiable. According to Mr Justice Richards, this is the proper meaning of “manifest error” in this context, a term used by the courts in several previous decisions, including Lion Apparel Systems Ltd v Firebuy Ltd [2007] EWHC 2179 (Ch). Only in extreme circumstances, however, such as fault on the part of the contracting authority, will the application of the principle of proportionality require contracting authorities to consider tenders received after the deadline.

Michael Bowsher QC, Elisa holmes and Ligia Ospeciu represented Devon County Council.

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Michael Bowsher QC
Elisa Holmes

On 8 May The High Court gave judgment in the first ever VAT Group Litigation test claims, in the VAT Interest Cars Group Litigation. The test claims against HMRC were dismissed in their entirety. As a result of the judgment it appears that all of the claims in the group litigation, valued at about £150 million will be successfully defended by HMRC. Peter Mantle and Philip Woolfe of Monckton represented HMRC, along with first Treasury Counsel (Chancery). The judge upheld HMRC’s argument that, generally, common law claims for interest were excluded by VATA 94. In a headline ruling he decided that where the overpayment of VAT was caused by breach of directly effective provisions of EU law, EU law required HMRC to pay compound interest. This creates conflicting High Court decisions, the judge refusing to follow Lawrence Collins L.J. in ToTel. HMRC succeeded on limitation and causation points. Henderson J. also held that the introduction of the 3 year cap was not a sufficiently serious breach of EU law to give a right to claim damages. The claimants are not appealing the dismissal of their damages claim, but obtained permission to appeal against the successful limitation defence to their restitution claims. Thus the Court of Appeal should hear the compound interest issue. Related Tribunal claims by car dealers are to be heard in June with Peter Mantle and Philip Woolfe again representing HMRC.

For the High Court judgment, please click here.

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Peter Mantle
Philip Woolfe

Following a hearing lasting 11 days at which the Tribunal received extensive evidence from witnesses of fact and expert economists the Competition Appeal Tribunal (CAT) has delivered its judgment on an appeal by National Grid plc against a decision of the Gas and Electricity Markets Authority (the Authority) published on 21 February 2008.

In the Decision the Authority found that National Grid had abused its dominant position in the market in Great Britain for the provision of domestic-sized gas meters, contrary to section 18 of the Competition Act 1998 Act and Article 82 of the EC Treaty. The Decision imposed a fine of £41.6 million on National Grid and ordered National Grid to put an end to the infringement. A number of the competing meter operators – Capital Meters Ltd, Siemens plc and Meter Fit Ltd – intervened in the proceedings in support of the Authority. This was the first significant decision for a number of years by a UK competition authority under section 18/Article 82.

In its judgment the Tribunal dismissed National Grid’s appeal against the finding of infringement but allowed it in other respects, including in reducing the fine imposed on National Grid to £30 million.

Jon Turner QC, Meredith Pickford, Josh Holmes and Laura Elizabeth John were instructed by Pinsent Masons for National Grid plc.

Christopher Vajda QC and Kassie Smith were instructed by Hill Hofstetter for Siemens plc.

Christopher Vajda QC and Ben Rayment were instructed by Slaughter & May for Capital Meters Limited.

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Jon Turner QC
Kassie Smith QC
Ben Rayment
Meredith Pickford
Laura Elizabeth John

Jeremy McBride has prepared an opinion for the Office of Democratic Institutions and Human Rights of the Organisation for Security and Co-operation in Europe which is being used to influence proposed changes to the law on non-commercial organisations in the Kyrgyz Republic.

For more information on the OCSE and the background towards these changes please click here.

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Jeremy McBride

The FIA International Court of Appeal has dismissed the appeals brought by Ferrari, Red Bull and Renault against the aerodynamic device fitted to the back of Brawn GP’s car. A five judge FIA panel ruled that Brawn GP’s designs did “comply with the applicable regulations”.

Paul Harris successfully represented Brawn GP.

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Paul Harris QC

R (on the application of Sovio Wines Ltd) v Food Standards Agency [2009] EWHC 382 (Admin)

The High Court case has recently been reported in The Times Online. The case concerns the decision of the Food Standards Agency to seize a consignment of partially de-alcoholised wine which was manufactured using an unauthorised oenological process and was labelled as Spanish semi-sparkling wine. Rebecca Haynes successfully acted for the Food Standards Agency.

For the High Court judgment, please click here.

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Rebecca Haynes

Bouygues & Bouygues Telecom v Commission (State aid) [2009] EUECJ C-431/07

The European Court of Justice has dismissed an appeal by Bouygues (Case C-431/07P) against a judgment by the Court of First Instance (“the CFI”) in Case T-475/04, where the CFI found that the grant of 3G mobile licences by France to Orange and SFR, the two largest mobile phone operators in France did not involve the grant of state aid. Christopher Vajda QC who was instructed by the Paris office of Denton Wilde Sapte, acted on behalf of SFR, both before the CFI and ECJ (addressing the Court in French).

For the ECJ judgment, please click here.

R (on the application of Partridge Farms LTD) v Secretary of State For Environment Food & Rural Affairs [2009] EWCA Civ 284

Christopher Vajda QC (who did not appear in the High Court) successfully represented the Secretary of State for Environment Food & Rural Affairs in his appeal against a judgment of the Administrative Court. which had held that the payments provided for under the Cattle Compensation (England) Order 2006 breached the EC law principle of equality. The principal means of ascertaining the amount of compensation payable under the Order was by means of a tabular valuation, which defined categories of bovine animals and required the average market price for each category to be calculated. For pedigree cattle, the compensation payable was the average market price during the period of six months preceding their slaughter. The judge found that Order discriminated as it did not provide for payment of anything like a reasonable approximation of the true healthy market value of pedigree cows and that the Secretary of State had failed to objectively justify the differential treatment satisfying the requirement of proportionality.

The Court of Appeal held that, although the principle of non-discrimination, applied to prohibit indirect discrimination, it did not preclude legislation of general application from affecting different persons in different ways provided it was determined on the basis of objective criteria formulated to meet the relevant objective. The fact that one particular group was affected to a greater extent than another by a legislative measure did not necessarily mean that the measure was disproportionate or discriminatory inasmuch as it sought a comprehensive solution to a problem of general public importance. In the instant case, there was no discrimination. The true value of any animal once it had tested positive for tuberculosis was the salvage value of its carcass, so the true value of so called “high value” cattle was not materially different from any other cattle which had been diagnosed with tuberculosis. The Order provided for compensation in excess of salvage value of the cattle, which applied to all owners of pedigree cattle. The whole purpose of the Order was to depart so far as possible from individual valuation. The fact that there was no discrimination was also reinforced by the difficulty in determining what were “high value” cattle.

For the Court of Appeal judgment, please click here.

Judgment was delivered on 26 March 2009 in JML Direct Ltd v Freesat UK Ltd [2009] EWHC 616. The case concerned the allocation of Electronic Programme Guide (“EPG”) numbers by Freesat, a new multi-channel TV service owned jointly by the BBC and ITV (an EPG is an on screen television programme guide used by digital TV systems)

JML (a provider of TV shopping channels) claimed that Freesat had, in breach of contract, failed to comply with its own EPG Listing Policy and the Ofcom EPG Code in allocating numbers to the channels broadcasting on its platform. As a result, JML’s channels had been listed lower down the EPG than they should have been. Dismissing JML’s claim, Mr Justice Blackburne held that Freesat’s Listing Policy was an “objectively justifiable method” for the purposes of the Ofcom Code and that, in applying the Policy, Freesat had acted within the margin of discretion afforded to it under its contract with JML. The judgment confirms that, in order successfully to challenge the exercise of contractual discretion, a claimant must show that the party exercising that discretion acted dishonestly, in bad faith or “irrationally” in a sense analogous to the pubic law concept of Wednesbury unreasonableness.

Tim Ward and Ben Lask were instructed by the BBC on behalf of the successful Defendant.

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Tim Ward QC
Ben Lask