Challenges to warrants obtained under Section 28

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COMPETITION AND MARKETS AUTHORITY v CONCORDIA INTERNATIONAL RX (UK) LIMITED

On 5 October 2017, the CMA was granted ex parte a warrant under section 28 Competition Act 1998 to search the premises of the pharmaceutical company, Concordia. The basis upon which the warrant was obtained was that there was a risk that documents relevant to an investigation would be destroyed or concealed (section 28(1)(b)(ii)).

The warrant was in relation to an investigation concerning inter alia the drug hydrocortisone. The CMA had been investigating Concordia in respect of an alleged anti-competitive agreement in respect of this drug since April 2016 and had previously served section 26 Notices on Concordia to obtain information. Concordia sought to have the warrant discharged on the basis that there could be no reasonable grounds for suspecting that any documents relating to the investigation would be destroyed or concealed.

The warrant was obtained in part by relying on information which the CMA said was protected by public interest immunity. The issue arose as to whether the CMA could rely on that material for the purposes of Concordia’s challenge to the warrant but not disclose it to Concordia. The CMA relied on authorities relating to criminal warrants which it said supported that approach.

Mr Justice Marcus Smith ruled that such a process would be unfair to Concordia and “would constitute the sort of “closed material” process that (according to the Supreme Court in Al Rawi) ought only to be sanctioned by Parliament.” He distinguished the approach taken to criminal warrants. Consequently, in so far as material was upheld as being subject to PII, it could not be relied on by the CMA at the inter partes hearing for the variation of the warrant. The Judge, agreeing with the CMA, also rejected a suggestion by Concordia that the CMA place the PII material into a confidential ring of external lawyers only.

The Judge made recommendations for the procedure to be adopted when the CMA applies ex parte for a warrant under section 28 and wishes to rely on PII material.

The Judge gave the CMA permission to appeal his decision to the Court of Appeal.

Mark Brealey QC acted for the Defendant, Rob Williams acted for the Claimant.

To read the judgment please click here.

Two new tenants for Monckton Chambers

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Monckton Chambers is delighted to announce that Alexandra Littlewood and Khatija Hafesji have joined Monckton Chambers on their successful completion of pupillage.

Prior to coming to the Bar, Alexandra Littlewood taught Contract Law at Brasenose College, University of Oxford. She graduated from the University of Oxford (Brasenose College) with a Distinction in the BCL and a First Class degree in Law and French Law. She also holds a Certificat Supérieur de Droit Français et Européen from the Université Panthéon-Assas, Paris II. Alexandra is currently working at the Supreme Court as Judicial Assistant to Lord Reed and Lord Briggs returning Chambers in August 2018.

Khatija Hafesji graduated in History from Cambridge before completing an MPhil Modern Middle Eastern Studies with Arabic at the University of Oxford and a Graduate Diploma in Law at City University. Before coming to the Bar, Khatija spent three years working as an advocate for children in care at the charity Coram Voice. She also undertook research and advisory work for the REES Centre of Fostering and Education at the University of Oxford, the Social Care Institute for Excellence, and the British Library. Khatija volunteered with the charity IPSEA for two years, representing parents and carers at the Special Educational Needs and Disabilities (SENDist) Tribunal. Khatija is currently the Senior Independent Trustee at Become (formerly the Who Cares? Trust), a charity which represents and supports children in care and care leavers.

Two new tenants for Monckton Chambers

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Monckton Chambers is delighted to announce that Alexandra Littlewood and Khatija Hafesji have joined Monckton Chambers on their successful completion of pupillage.

Prior to coming to the Bar, Alexandra Littlewood taught Contract Law at Brasenose College, University of Oxford. She graduated from the University of Oxford (Brasenose College) with a Distinction in the BCL and a First Class degree in Law and French Law. She also holds a Certificat Supérieur de Droit Français et Européen from the Université Panthéon-Assas, Paris II. Alexandra is currently working at the Supreme Court as Judicial Assistant to Lord Reed and Lord Briggs returning Chambers in August 2018.

Khatija Hafesji graduated in History from Cambridge before completing an MPhil Modern Middle Eastern Studies with Arabic at the University of Oxford and a Graduate Diploma in Law at City University. Before coming to the Bar, Khatija spent three years working as an advocate for children in care at the charity Coram Voice. She also undertook research and advisory work for the REES Centre of Fostering and Education at the University of Oxford, the Social Care Institute for Excellence, and the British Library. Khatija volunteered with the charity IPSEA for two years, representing parents and carers at the Special Educational Needs and Disabilities (SENDist) Tribunal. Khatija is currently the Senior Independent Trustee at Become (formerly the Who Cares? Trust), a charity which represents and supports children in care and care leavers.

Chambers Bar UK 2018 – “class act” Monckton Chambers is top tier for six practice areas

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The recently launched Chambers Bar UK 2018 ranks 47 individual Monckton barristers across 17 practice areas with many appearing in multiple categories.

Monckton Chambers is one of the most highly ranked sets in the UK as it has been recommended in eleven practice areas; in six of these, Monckton is recognised as a “Band One” leading set:

  • Competition
  • European Law
  • Telecommunications
  • Public Procurement
  • Indirect Tax
  • Community Care

The Set has also been ranked in a further five categories:

  • Administrative and Public Law
  • Civil Liberties & Human Rights
  • Data Protection
  • Sports Law
  • Environment

Individual members were also recognised as “Leading Individuals” in further six categories:

  • Aviation
  • Construction
  • Education
  • Immigration
  • Local Government
  • Police Law

Monckton Chambers is described in the overview of “LEADING SETS BY NUMBER OF RANKINGS” as follows: Monckton Chambers is renowned for the abilities of its competition and European law-focused barristers, and fields a number of experts in these areas at both the junior and silk level. Commentators make reference to Monckton as the “go-to” and “pre-eminent” chambers for these practice areas, with others drawing attention to its “strength in depth.” Monckton is home to the “stellar” Daniel Beard QC and “compelling advocate” Jon Turner, both of whom are frequently instructed in a range of competition matters and telecoms cases. Several of the set’s barristers have been at the forefront of post-Brexit vote debates and cases, including appearances in R (on the application of Miller and others) v Secretary of State for Exiting the European Union in the Supreme Court.

Public procurement cases are another mainstay at Monckton, which boasts the “top procurement practitioner at the Bar,” Michael Bowsher QC. The set is also notable for the regular appearances of its members in social care cases, including matters involving disabled and vulnerable adults and children.

In addition, Monckton hosts several experts in indirect tax law, including VAT. Even the clerks at the set, led by senior clerk David Hockney, are the subject of praise. “They go above and beyond,” says a client, continuing: “They do more than just arrange meetings and fees – they actually help us to progress matters.” Clients and instructing solicitors are also ably assisted by receptionist Linda Antonioni, nominated by one source for the title of “the loveliest person in the world.”

Monckton Chambers is also one of only twenty Sets particularly commended for their provision of quality client service in the section UK BAR: CLIENT SERVICE AT THE BAR “The set’s client service is summed up by one solicitor, who says: “the clerking has been absolutely perfect; head clerk David Hockney runs a very sharp operation there. They like to find a way to facilitate all pockets and be pragmatic, and they’re willing to accommodate you which means, in turn, you keep going back for more.” Another satisfied customer commented: “The chambers as a whole is fantastic. The commitment to the best interests of the client is exemplary and the barristers are very ably supported by everyone from the receptionist to the clerks. Monckton is a class act.”

For further details visit the Chambers & Partners website.

No compound interest on overpaid VAT

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Littlewoods Ltd and others v HMRC [2017] UKSC 70

The Supreme Court has handed down judgment in Littlewoods Ltd v HMRC [2017] UKSC 70. The Court has ruled that those claiming refunds of overpaid VAT from HMRC do not have a right to compound interest either under EU law or under the common law; and that interest on such refunds is limited to statutory, simple interest under section 78 of the Value Added Tax Act 1994. The Court held (upholding Vos J and the Court of Appeal, and dismissing Littlewoods’ appeal) that sections 80 and 78 of the 1994 Act exclude any common law cause of action in respect of the time or use value of overpaid VAT (whether compound interest or otherwise). The Supreme Court further held (reversing Henderson J and the Court of Appeal, and allowing HMRC’s appeal) that EU law–in particular, the principle of effectivenessdid not give Littlewoods any EU law right to compound interest; and that the UK’s regime, providing for simple interest did not deprive Littlewoods of “an adequate indemnity for the loss occasioned by undue payment” of the tax. Consequently, the High Court’s 2014 judgments in favour of Littlewoods, totalling approximately £1.25 billion, will be set aside. The Court’s judgment also puts paid to approximately 5,000 other claims, estimated at £17 billion, for compound interest on overpaid VAT. This is an important judgment, not just because of the very large sums involved and number of taxpayers affected, but also for the Supreme Court’s reasoning on the relationship between EU law rights and national law remedies and its conclusion that EU law had not harmonised and did not dictate the content of national law interest remedies.

Andrew Macnab and Peter Mantle of Monckton Chambers (led by Jonathan Swift QC of 11 King’s Bench Walk) represented HMRC.

The judgment can be found here.

Competition and Markets Authority accepts commitments from Showmen’s Guild

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The CMA announced yesterday that it has accepted commitments by the Showmen’s Guild of Great Britain, the main association for travelling showmen who earn their living at funfairs. The announcement closes, without the imposition of any penalty, an investigation by the CMA into the Guild’s rules that led to the issue of a Statement of Objections in December 2016 (which indicated that the CMA was at that stage minded to impose penalties).  The commitments offered, and the reasons why the CMA accepted them, are set out here: in essence, the CMA agreed that its concerns were sufficiently addressed by amendments to the Guild’s rules that: (a) made it easier for new members to join the Guild; (b) removed a number of restrictions on the participation of non-members at fairs; and (c) changed the Guild’s system of “established rights” held by its members to grounds at fairs so as to make transfer of such rights easier, and for landowners to make improvements to fairs on their land.  The rule changes now have to be approved by the Guild’s members.

The Guild was represented during the CMA inquiry by George Peretz QC, Michael Armitage and Imogen Proud.

ECJ rules “Bridge is not a sport” – VAT success for UK, represented by Raymond Hill

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The European Court of Justice has decided this morning that contract bridge is not a sport. Therefore, entry fees to bridge tournaments are not exempt from VAT. Although bridge involves intellectual effort and skill, the Court held that the term “sport” referred to an activity characterised by a “not negligible” physical element. The Court recognised that bridge required logic, memory and lateral thinking and benefitted the mental and physical health of players. But the Court disagreed with Advocate General Szpunar that the health benefits of playing bridge indicated that bridge should fall within the VAT exemption for sports.

Raymond Hill represented the United Kingdom before the European Court in successfully arguing that bridge was not a sport.

 

Brendan McGurk successfully defends Italian Rugby’s Marco Fuser

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Brendan McGurk has successfully defended Italy and Benetton Lock, Marco Fuser, following his citing for an alleged bite on Francois Louw during the European Champions Cup clash between Bath and Benetton on 14 October 2017. Louw was also cited in the same incident for making contact with Fuser’s eye. Following a hearing before the EPCR Disciplinary Panel, the case brought against Fuser was dismissed.

Thomas Sebastian appointed as a Visiting Professor at the London School of Economics

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Thomas Sebastian has been appointed a Visiting Professor in Practice at the London School of Economics for the period 2017 to 2020.  Thomas will contribute to postgraduate teaching in the fields of WTO law and international investment law (alongside his full time practice in these areas).

He said “I am delighted to have this opportunity and look forward to engaging with colleagues in the Law Department and the LSE’s diverse postgraduate community in the years ahead.“