Professor Carl Baudenbacher in The Brief – Comment on how Britain can be a leader of outsiders after Brexit

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Professor Carl Baudenbacher is the author of the “Comment” in today’s legal affairs bulletin, The Brief. Published by The Times and produced by Jonathan Ames and legal affairs editor Frances Gibb, The Brief compiles the most important and influential news in the legal industry on a daily basis. Professor Baudenbacher’s “Comment” explores how, if the UK should join forces with the four other EU outsiders to shape its relations with the EU, it could be the leader of an economically successful group of countries. Read the relevant edition of The Brief here.

Investigatory Powers Act not ‘general and indiscriminate’, says Divisional Court

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The Divisional Court (Singh LJ and Holgate J) has today handed down judgment in judicial review proceedings brought by Liberty, challenging the lawfulness of the Investigatory Powers Act 2016. The case was identified by the Lawyer Magazine as one of its Top 20 Cases for 2018.

Today’s judgment concerns the compatibility with EU law of Part 4 of the 2016 Act, which contains a regime permitting the Home Secretary to require telecommunications operators to retain specified communications data (that is, data concerning matters such as the duration of telephone calls or emails, but not their content) for up to 12 months. The ability of public authorities to access such retained data can be of vital importance, for instance in criminal investigations.

Following the CJEU’s December 2016 judgment in Tele2/Watson, the Home Secretary had previously conceded that Part 4 of the 2016 Act is incompatible with EU law in two discrete respects, which are the subject of pending amendments to the legislation. The Divisional Court accepted the Home Secretary’s argument that the only appropriate relief in such circumstances was declaratory relief (including a declaration that the 2016 Act should be amended within a reasonable time), and that it was not appropriate to make an order disapplying the offending parts of the 2016 Act, as Liberty maintained.

Liberty also advanced a series of other EU law-based objections to Part 4 of the 2016 Act. These included an allegation that Part 4 is incompatible with EU law because it permits the ‘general and indiscriminate’ retention of communications data, amounting to a serious violation of privacy rights. Liberty contended that these matters should all be referred to the CJEU. However, the Divisional Court agreed with the Secretary of State that it should not make any reference to the CJEU, in some cases because it accepted the Government’s submission that the challenged aspect of the 2016 Act is compatible with EU law, and in other cases because the subject matter of Liberty’s complaint is already covered by a preliminary reference to the CJEU made by the Investigatory Powers Tribunal.

The Divisional Court rejected Liberty’s argument that Part 4 of the 2016 Act permits the ‘general and indiscriminate’ retention of communications data. The Court found that there was no basis for such a complaint, given (among other matters) the statutory requirement for the Home Secretary to be satisfied that retention notices are necessary and proportionate.

Monckton Chambers’ Gerry Facenna QC and Michael Armitage, led by First Treasury Counsel, acted for the Secretary of State for the Home Department and Secretary of State for Foreign and Commonwealth Affairs.

Tim Ward QC appointed to the Football Association (FA) Judicial Panel

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The Judicial Services Department of the Football Association (FA) has selected Tim Ward QC as a member of the FA Judicial Panel as a Specialist Panel Member, with immediate effect. As such, Tim Ward will be eligible to chair Regulatory Commissions and Appeal Boards for personal hearings. This is the FA’s senior panel which hears the full range of cases in connection with disciplinary and other regulatory matters of football played in England, including on-the-field misconduct, doping, safeguarding, agent activity, and anti-discrimination.

This is not Tim Ward’s first sports panel appointment. In 2013, Tim was appointed to the Rugby Football Union panel, on which he continues to sit as an adjudicator hearing appeals concerning competition issues.

De La Rue abandons blue passport procurement challenge

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De La Rue International Limited has today announced that it will not be pursuing its threatened challenge to the award by Her Majesty’ Passport Office of the contract for the production of blue passports to Gemalto UK Limited. Following a two-week extension for the parties to exchange pre-action correspondence and information, the standstill period in the procurement passed at midnight of the 17th/18th April and no claim under the Public Procurement Regulations having been issued, HMPO will be proceeding to enter into the contract.

Philip Moser QC, Alan Bates, Philip Woolfe and Khatija Hafesji of Monckton Chambers acted for HMPO.

Kassie Smith QC and Ligia Osepciu acted for Gemalto UK.

Former EFTA Court President Carl Baudenbacher joins Monckton Chambers

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The members of Monckton Chambers welcome Professor Carl Baudenbacher, who joins Chambers as a door tenant on 1 May 2018.

Professor Baudenbacher has enjoyed a distinguished career as a judge, university professor, arbitrator, author of legal and political publications, consultant, political advisor and speaker, in recent years with a particular emphasis on Brexit.

A Swiss national, Professor Baudenbacher was the Liechtenstein Judge of the EFTA Court from 1995 and served as the Court’s President from 15 January 2003 to 31 December 2017. He is a renowned expert in the fields of commercial and economic law, in particular competition law, as well as in the law of international courts. He is also the Director of the Competence Center for European and International Law at the University of St Gallen HSG and founder and Chairman of the renowned St Gallen International Competition Law Forum (ICF).

Between 1993 and 2005 he taught European and International Law as a Permanent Visiting Professor at the University of Texas School of Law. From 1994 to 1995 he served as a member of the Supreme Court of the Principality of Liechtenstein. In 2007 he was a member of the Independent Commission of Inquiry for the Investigation of the Events Surrounding the Hypo Group Alpe‐Adria established by the Government of the Republic of Austria (“Griss Commission”).

An experienced legal expert and arbitrator, he has advised the Swiss Parliament and the Swiss Government as well as the Governments of the Principality of Liechtenstein, the Russian Federation, Israel and the Canton of St.Gallen as well as private clients. His research activities encompass Swiss, European and International business and economic law. Special emphasis lies on the law of EU/EEA fundamental freedoms, unfair competition law, antitrust law, IP law, contract law, company law, labor law, comparative law, law of the globalization and dispute resolution.

Professor Baudenbacher resigned from the EFTA Court bench on 09 April 2018 and has selected Monckton Chambers as the ideal set from which to develop a UK practice. He will focus on both the Continent and United Kingdom across the full spectrum of EEA/EU law, Swiss economic law and certain aspects of German economic law and will involve consulting, litigation strategy, arbitration and speaking engagements.

Philip Moser QC, joint Head of Monckton Chambers, spoke for all the members in saying: “We are delighted that Professor Baudenbacher, with his considerable experience and specialist expertise, has recognised the complementary strengths of Monckton Chambers and its members and has decided to join us in the UK. With Brexit and the position of flux within Europe, this appointment could not be more important nor more timely.”

See full profile for Professor Carl Baudenbacher.

The Lawyer General Counsel Strategy Summit 2018 – Gerry Facenna QC to chair session on GDPR

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This year’s The Lawyer General Counsel Strategy Summit is being held at the Asia Gardens Hotel in Alicante, Spain on 16 – 18 May.

Monckton Chambers continues to support this important annual event, which is organised by The Lawyer magazine and is a forum for many of the UK and Europe’s most influential General Counsel to discuss the strategic and legal issues facing business leaders. The summit will bring together a host of external professionals including lawyers, economists and regulators, as well as those involved in senior decision-making at some of the world’s leading businesses.

Gerry Facenna QC is one of the leading practitioners selected to shape this “must-attend event” for GCs. He will be hosting a roundtable on the EU General Data Protection Regulation (GDPR), which comes into effect shortly after the event on 25 May 2018. Entitled “GDPR – a continuous process, not a destination” the session will focus on the data protection issues facing businesses in the new regulatory landscape, including ownership of GDPR within corporate structures, demonstrating accountability and regulatory compliance, and benefits for business in better control of data.

Gerry Facenna QC is well placed to chair this topic, having been involved in many of the landmark cases that have shaped UK and EU data protection laws.

Monckton Chambers is a leading set in the area of data protection and information rights. Our unique combination of market-leading expertise in information rights, EU law, telecoms and regulatory litigation will all be mobilised to assist our clients when the new regulatory landscape under the GDPR comes into effect.

Who’s Who Legal UK Bar 2018 – Monckton Chambers in top five leading sets, members recognised as “Most Highly Regarded” for Competition, Telecoms and Government Contracts and Ligia Osepciu is a “rising star”

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Who’s Who Legal (WWL) has published its analysis of the UK Bar. 30 members of Monckton Chambers are recognised across eight practice areas. With 48 listings in total, Monckton Chambers is ranked joint fifth in the table “Leading sets in WWL: UK Bar 2018 by total listings”.

Monckton members are particularly strong in three chapters where they are included in the “Most Highly Regarded Tables”, as well as dominating the Junior section in terms of number of members recognised.

Competition

Silks

Daniel Beard QC and Josh Holmes QC are recognised as two of only five of the listed “Most Highly Regarded” Silks. Nine Monckton silks are recommended this year out of a total of 25.

Juniors

Ronit Kreisberger and Anneli Howard are identified as two of the five “Most Highly Regarded” Juniors across the whole of the UK Competition Bar.

Monckton Chambers also shows its Junior strength by demonstrating “a superb junior bar with nine listings, giving it the largest contingent of juniors in this year’s chapter”.

Others listed are: Tim Ward QC, Jon Turner QC, George Peretz QC, Kassie Smith QC, Meredith Pickford QC, Paul Harris QC, Mark Brealey QC, Ben Rayment, Ligia Osepciu, Robert Palmer, Alistair Lindsay, Alan Bates, Alison Berridge and Rob Williams.

Telecoms

Silks

Daniel Beard QC and Josh Holmes QC are again recognised as two of only five of the listed “Most Highly Regarded” Silks. In total five Monckton Silks are recognised for their work in the field.

Juniors

Robert Palmer is one of only two Juniors recognised as “Most Highly Regarded” and once again Monckton Chambers boasts the largest number of juniors in this chapter, with six names listed.

Others listed are: Tim Ward QC, Jon Turner QC, Meredith Pickford QC, Fiona Banks, Alan Bates, Anneli Howard, Stefan Kuppen and Ligia Osepciu.

Government Contracts

Silks

Michael Bowsher is one of the five “Most Highly Regarded” Silks as Monckton Chambers “stand out for their exceptional work in in the procurement law”.

Juniors

Ewan West and Valentina Sloane are two of only four “Most Highly Regarded” Juniors. With seven leading juniors in the procurement space who impress commentators with the depth of their expertise, Monckton Chambers again lead the way in terms of Juniors.

Others listed are: Philip Moser QC, Fiona Banks, Anneliese Blackwood, Ligia Osepciu, Ben Rayment, Valentina Sloane, Ewan West and Rob Williams.

Members are also recognised in the following categories:

Sport: Paul Harris QC, Fiona Banks

Environment: Jon Turner QC, Gerry Facenna QC, Alan Bates

Media & Entertainment: Jon Turner QC, Daniel Beard QC, Meredith Pickford QC

International Trade & Commodities: Tom Sebastian

Corporate Tax: Valentina Sloane

Rising Stars

For the first time, WWL has identified some of the standout members of the junior Bar as “rising stars” with the aim of highlighting the work of those barristers, aged 45 or under, and of 15 years’ call or less, who are operating at a level beyond their call. Monckton’s Ligia Osepciu who is listed in the Competition, Government Contracts and Telecoms chapters of WWL: UK Bar 2018 is one such “rising star” as she wins praise for her “extensive experience in the public procurement space” and is recommended as “a superb case strategist”. She is also identified as “really good” in the competition and telecoms arenas, where sources highlight her as “very quick and clear”.

This is the fourth edition of Who’s Who Legal and it features more than 100 sets; however, over 40 per cent of the listings are earned by practitioners from 12 standout sets, one being Monckton Chambers. This comprehensive guide to 28 distinct practice areas at the bar is published by Law Business Research Ltd.

Michael Collins SC delivers report to Irish Prime Minister on events which led to resignation of Deputy Prime Minister

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When it transpired in November 2017 that the Irish Department of Justice had failed to disclose certain emails involving the Minister for Justice to a Tribunal of Inquiry into an alleged police campaign against a whistleblower within the police, the minority Irish government almost fell, saved only by the reluctant resignation of the Minister for Justice and Deputy Prime Minister, Ms. Frances Fitzgerald. The Prime Minister, Leo Varadkar, appointed Michael Collins SC to conduct an inquiry into how and why the Department had failed to disclose the crucial emails, the absence of which led the Prime Minister to unwittingly mislead Parliament on two occasions as to the knowledge of the Minister in relation to an alleged police strategy against the whistleblower. Mr. Collins delivered his report on 9th March 2018 and the Government published it on 27th March 2018. Mr. Collins concluded that in response to a request for assistance from the Tribunal, the Department disclosed relevant documents from the Policing Division of the Department but failed to conduct searches of its own internal emails (which search would have unearthed the controversial emails). No meaningful explanation was offered for this failure beyond a perception within the Department that the Tribunal’s terms of reference were primarily focused on the police force rather than the Department. However, Mr. Collins also concluded that there was no deliberate concealment and that the Department and the Minister at all times acted in good faith.

 Mr. Collins’ report is the subject of an editorial in the Irish Times 29th March 2018.

Robert Palmer appointed Recorder to the South Eastern Circuit

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Monckton Chambers’ Robert Palmer is one of the 133 Recorders appointed by the Queen on the advice of the Lord Chancellor, the Right Honourable David Gauke MP, and the Lord Chief Justice of England and Wales, The Right Honourable The Lord Burnett of Maldon. Robert has been deployed to the South Eastern circuit covering the jurisdiction of crime. The appointment will take effect from 4 April 2018.

This is a part-time appointment and there will be no impediment to Robert’s continued availability to handle work at the Bar.

For full list of appointments see the Courts and Tribunals Judiciary announcement here.

CAT refers Paroxetine case to CJEU

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In the latest instalment of competition litigation surrounding the issue of ‘Pay for Delay’, the Competition Appeals Tribunal has referred a series of appeals against a decision of the Competition and Markets Authority to the EU Court of Justice.

The CMA had fined GlaxoSmithKline – the patent holder of antidepressant drug, Paroxetine – and a number of generics companies over a series of settlement agreements. Those agreements settled litigation in which GSK alleged that the generics companies were threatening to enter the market in breach of its patents. The CMA considered that the agreements were anticompetitive and amounted to an abuse of dominance by GSK.

GSK and the generics companies appealed the CMA’s decision on a number of grounds. Whilst dismissing the appeals in part, the CAT referred central questions to the CJEU relating to what constitutes potential competition, infringements by object and effect, abuse of dominance, and what it describes as a ‘novel’ approach to market definition.

The CAT also recognised that existing cases before the CJEU raised many of the same issues as the present appeal.

Ronit Kreisberger appeared on behalf of Merck KGaA.

Jon Turner QC, Thomas Sebastian, and Elizabeth Kelsey appeared on behalf of the CMA.