Heathrow Airport Ltd v Office of Rail & Road [2017] EWHC 1290 (Admin)

The High Court (Ouseley J.) has dismissed a judicial review challenge by Heathrow Airport to the decision of the Office of Rail & Road concerning Heathrow’s ability to impose track access charges on Crossrail reflecting the costs of building the Heathrow rail spur.

Crossrail services are due to commence operations into Heathrow in 2018 and will use the Heathrow rail spur, which was funded and built privately by the airport in the 1990s for the Heathrow Express. In May 2016 the ORR determined that, when charging Crossrail access fees to use airport rail infrastructure, Heathrow could not take into account its historical long-term costs of constructing the railway. This meant that ongoing costs to Heathrow of around £40m-£60m a year could not be recovered from Crossrail users and would instead fall on airline passengers. This was a matter of concern to the Civil Aviation Authority, who made representations to the ORR and intervened in the judicial review claim.

In his judgment, handed down today, Mr Justice Ouseley has dismissed Heathrow’s challenge to the ORR’s decision. While accepting that there was force in Heathrow’s criticisms of the decision and the quality of the ORR’s reasoning, the Judge found that it was rationally open to the ORR, on the evidence before it, to conclude: (i) that the railway spur would still have been built even if fare revenues were inadequate to recover any of the long-term costs, given the railway’s importance to the development of the airport; and (ii) that the CAA would not have precluded such costs being recovered from airline passengers.

In relation to whether the Heathrow rail spur is properly exempt from the relevant EU framework as a “network intended only for the operation of urban or suburban passenger services”, the Judge found that the answer was not clear at all and that “rail services to its main airport seem an obvious part of rail services for a conurbation”. However, he ultimately declined to decide the point on the basis that a decision in Heathrow’s favour was likely to cause substantial prejudice to the Crossrail sponsors, and since the point was academic between the parties given their contractual relations.

A copy of the judgment is available here.

Heathrow Airport Limited was represented by Gerry Facenna QC and Ligia Osepciu. The Civil Aviation Authority was represented by its standing counsel, Anneli Howard.

The Tribunal has today handed down judgment in Socrates Training Limited v The Law Society, the first Fast-Track case in the Competition Appeal Tribunal, which concerned the Law Society’s training requirements under its Conveyancing Quality Scheme (“CQS”). Socrates claimed that, as the only supplier of accreditation for conveyancing solicitors, The Law Society held a dominant position in the provision of accreditation from the launch of the CQS in late 2010 and that from 2012 onwards it abused that dominant position by requiring CQS accredited firms to purchase exclusively from the Law Society training in respect of Anti-Money Laundering and mortgage fraud. The Tribunal has today found that the Law Society came to hold a dominant position from the end of April 2015 and that it abused that dominant position by thereafter obliging CQS member firms to obtain the training in mortgage fraud and AML required for CQS accreditation exclusively from the Law Society, and that it breached the prohibitions in Chapter I and Chapter II of the Competition Act 1998 from that date.

Socrates was represented by Philip Woolfe and The Law Society was represented by Kassie Smith QC and Imogen Proud.

Persona Digital Telephony Ltd v. The Minister for Public Enterprise, Ireland and the Attorney General.

The Irish Supreme Court, in a 4-1 decision, has decided that a third party funding agreement between a plaintiff and an English third party funder, Harbour Litigation Limited is contrary to the laws on maintenance and champerty under ancient statutes from the 14th century to the Maintenance and Embracery Act 1634.  The statutory prohibitions on maintenance and champerty have not been repealed in Ireland albeit no criminal prosecution has been brought under such statutes since the foundation of the State.

The issue arose out of a claim brought by Persona Digital Telephony against Ireland, Denis O’Brien and, as a third party, Michael Lowry, a former Minister for Communications.  The plaintiffs’ case is based on a finding by a Tribunal of Inquiry that a consortium in which Mr. O’Brien had a major shareholding obtained the award of Ireland’s second mobile telephone license in 1996 on foot of improper payments and other benefits furnished on behalf of Mr. O’Brien to Minister Lowry in relation to the latter’s involvement in securing the license for Mr. O’Brien’s consortium.  The plaintiffs were amongst the other bidders for the licence and claim that had the process been run properly, they had a significant chance of being awarded the licence and thus seek to recover damages against Ireland and Mr. O’Brien.  Lacking the funds to prosecute the action, they entered into a third party funding agreement with Harbour Litigation Limited and then brought an application before the Irish High Court seeking a declaration that in entering into such an agreement, the plaintiffs were not engaged in an abuse of process and/or were not contravening the rules on maintenance and champerty.  The High Court ruled against the plaintiffs but in light of the importance of the issue, the Supreme Court certified for a direct appeal on the issue to the Supreme Court.

Four of the five Supreme Court judges held that the funding agreement contravened the rules on maintenance and champerty and that although it had been argued that the court could develop the common law on maintenance in light of modern policy considerations and constitutional issues, including the constitutional right of access to the court, the policy issues involved were sufficiently complex as to be more suited to legislation than to judicial development.

However, a number of the judges expressed in various ways serious disquiet over the fact that a case which has previously been described by the Supreme Court as “absolutely unique, without precedent or parallel” in the history of the State and where there was a “significant public interest in having these matters of high public controversy determined in a court of law,” may not now proceed because of a lack of funding.  In the leading judgment, Chief Justice Susan Denham stated that “I do have a concern that the defendants and third party who vigorously oppose the plaintiff’s motion are beneficiaries if the case does not proceed.” Clarke J. said that “it is difficult to take an overview of the circumstances of this case without a significant feeling of disquiet” and acknowledged that “it is at least arguable that there is a very real problem in practice about access to justice [which] is growing.” McKechnie J. took the unusual step of deferring the making of an order “until such time as the State has been given an opportunity to address the deeply disturbing situation of the appellants being unable to prosecute this action solely because of the continuing existence of ancient principles of law, such as those of maintenance and champerty.” He stated: “It is of immense concern that legislation of such enormous antiquity has the capacity of preventing any merit review of such allegations. Such, however, is what the defendants and the third party in this case agitate, precisely the same parties who would, if the allegations were sustained, be damnified in a manner heretofore unexpressed in the State’s history.  The significance therefore of the decision arrived at on this application and its consequences cannot be overstated.”

He added: “To terminate an action of such magnitude is both highly disturbing and terribly disquieting… Whilst I fully acknowledge the decision of my colleagues and the reasons therefor, the conclusions so reached represents a deeply unsatisfactory outcome.  As emphasised above, given the critical importance of these allegations being ventilated in full, it is unseemly, almost unpalatable, that the State should try to cut these proceedings off at the pass in this manner… The outcome of this case is manifestly troublesome from the perspective of the giving of effect to the constitutional right of access to the courts; indeed, all the more so given the importance of the questions at issue.  On other occasions, one could expect the State to aggressively engage with the legal process by seeking the speediest trial possible so as to vindicate its integrity.  Not so, however, in this case.  Such is to be regretted.”

It remains to be seen whether the legislature will act upon McKechnie J.’s invitation.

Michael M. Collins SC was leading counsel for Persona Digital Telephony Limited.

Opinion 2/15 (EU:C:2017:376)

The EU Court of Justice has delivered a lengthy Opinion on the power of the EU to sign and conclude a free trade agreement with Singapore without the involvement of the Member States.

While the Commission and European Parliament contended that the EU has exclusive competence to sign and conclude the proposed agreement with Singapore, the Council and Member States who intervened argued that the EU could not do so because parts of the agreement fall within areas of competence shared between the EU and Member States, or within the exclusive competence of the Member States.

In its Opinion, delivered by the Full Court and available here, the CJEU has found that most of the matters covered by the agreement fall within the exclusive competence of the EU, including:

•  access to the EU market and Singapore market for goods and services (including all maritime, rail and road transport services), public procurement and energy generation from sustainable non-fossil sources;
•  protection of direct foreign investments of Singapore nationals in the EU (and vice versa);
•  intellectual property;- competition and subsidies;
•  sustainable development; and
•  rules relating to exchange of information, notification, verification, cooperation, mediation, transparency and dispute settlement (except in connection with non-direct foreign investment).

However, the Court found there to be two areas covered by the agreement where the EU has shared competence with the Member States, meaning that the agreement in its current form cannot be concluded without the Member States’ involvement:

• non-direct foreign investment (portfolio investments made without any intention to influence the management and control of an undertaking); and
• investor-state dispute settlement.

The EU-Singapore agreement is representative of a number of bilateral trade and investment treaties that the EU is seeking to enter into. The Court’s Opinion confirms the broad scope of the EU’s exclusive competence to conclude such agreements, other than in a few areas where Member State involvement will continue to be necessary (including controversial investor-state dispute settlement arrangements). This may make it easier for the EU to negotiate and conclude trade deals in the future, including a potential post-Brexit deal with the UK, provided they do not cover investment matters.

The United Kingdom was represented by Daniel Beard QC and Gerry Facenna QC.

To read the Brexit blog post by Panos Koutrakos “Concluding Free Trade Agreements: the EU-Singapore Opinion and Brexit” please click here.