Monckton Chambers and its members, as leaders in the fields of international, European, public and regulatory law, have stepped up to provide objective and politically neutral insight into the pressing questions that government, business and individuals face as a result of Brexit.In the last 2 weeks we have had significant activity in response to the EU referendum decision in favour of “Leave”:

Introducing the Monckton Chambers Brexit Blog: work began immediately to set up a Blog in order to post a range of content, aimed at specialists and non-specialists alike. Some of the pieces will be primers on the law that underlies the big stories in the news. Others will look in more depth at specific issues from specialist areas where EU law is important, and where Brexit may reshape the landscape, such as competition law, tax, procurement, financial services, telecommunications or immigration.

Current posts include:

• What does Brexit mean for international trade agreements?
• The EEA Agreement: what is the ‘Norwegian Model’?
• Does the UK really enjoy absolute discretion as to when to trigger the Article 50 procedure?
• What does Brexit herald for UK Expats?
• Where can you go with your cartel claim after Brexit?

Although we will be picking up and commenting on Brexit issues in the media, this Blog is not about recycling other newsfeeds.   Our aim is to make rigorous and objective legal analysis available not only to our clients, but also to help inform the press, policy makers and the wider public debate.

To subscribe to receive daily alerts of posts on the Blog, sign up here.

Focused Seminar Programme: in response to the need for information and debate, a ‘pop-up seminar’ on the implications of the Brexit decision, was quickly organised for the 30th June.  Selling out within an hour of publicising, we moved the seminar to a larger venue and soon attracted over 200 delegates.  The slides are available here. A podcast of the event will be posted soon.

Our Procurement Law barristers have also rallied to the demand from clients and contacts to hear and explore more and there is an evening seminar on the 13th July looking at  Procurement Futures: what lies ahead for procurement law? What will be the effects on future plans and challenges?  To book a place, please click here.

Other seminars addressing other areas of focus are being organised.  Watch out for future Brexit Latest news or visit our Events page.

Monckton Chambers’ Members in the Media: as leaders in the fields of international, European, public and regulatory law, members have been invited to comment in media interviews and other commentary.

Michael Bowsher QC discussed “The legal matters of Brexit” with Share Radio. Please click here to listen to the podcast.

Philip Moser QC discussed the legal case threatened by Mishcon de Reya and the Prime Minister’s power to trigger Article 50 TEU in an interview with Radio Sputnik. Please click here to listen to the podcast.

George Peretz QC commented on the position for UK Expats in a number of news items including The Financial Times and the BBC online news.

 

Mishcon de Reya has been instructed, on behalf of a group of clients, to seek a pre-emptive declaration from the Courts to clarify the constitutional requirements for the UK Government’s withdrawal from the EU. Legal steps have been taken to ensure Article 50 TEU – the procedure for notifying and negotiating the UK’s withdrawal from the EU – cannot be triggered without an Act of Parliament. Mishcon de Reya has retained Anneli Howard as part of the wider EU/ public law counsel team of Lord David Pannick QC, Rhodri Thompson QC and Tom Hickman.

See Mishcon De Reya news release.

Ben Lask, Rob Williams and Anneli Howard have been elevated to the Attorney General’s Junior Counsel to the Crown’s A Panel. Robert Palmer has been reappointed for a further 5 years to the A Panel and Eric Metcalfe has been elevated from the C to the B panel.

The Attorney General (AG) maintains four panels (3 London and one Regional) of junior counsel to undertake civil and EC work for all Government Departments and also three panels of junior counsel to undertake public international law. All appointments are for 5 years.

In total, there are 19 members of Monckton Chambers currently AG Junior Counsel to the Crown:

London A Panel Raymond Hill, Andrew Macnab, Peter Mantle, Robert Palmer, Valentina Sloane, Ben Lask, Rob Williams and Anneli Howard

London B Panel Alan Bates, Julian Gregory, Josh Holmes, Ronit Kreisberger, Brendan McGurk, Ewan West, and Eric Metcalfe.

London C Panel Anneliese Blackwood, Tarlochan Lall and Julianne Kerr Morrison

Public International Law C Panel Nikolaus Grubeck

JUSTICE has published the second edition of To Assist the Court, its guide to the conduct of third party interventions in the public interest. In his Foreword, Lord Philips of Worth Matravers describes it as an “invaluable and detailed guide to intervention”.

This is the second edition of the report written in 2009 by Eric Metcalfe, and contains details of the new costs rules for interveners under the Criminal Justice and Courts Act 2015. The second edition was published with the support and involvement of Freshfields Bruckhaus Deringer.

A copy of the second edition is now available and the JUSTICE press release can be found here.

The Consumer Rights Act 2015 introduced a new procedure for bringing ‘collective actions’ for damages for breaches of competition law. Claims can be brought by a claimant acting as representative of a class of persons (such as consumers who bought a particular product) who are alleged to have suffered losses as a result of the breach. Such claims can now be brought on an ‘opt-out’ basis, so that, for example, everyone who purchased a particular product during a particular time period will be part of the proceedings unless he or she actively chooses to ‘opt out’.

In order to bring an opt-out collective action, the claimant must seek a ‘collective proceedings order’ from the Competition Appeal Tribunal. The defendant is not required to file a defence unless and until such an order has been granted.

Press articles in March 2016 announced that the UK’s first opt-out collective action proceedings had been begun by a Ms Dorothy Gibson (the General Secretary of an unincorporated association calling itself the National Pensioners’ Convention) against Pride Mobility Products Ltd (‘Pride’). At that time, however, no proceedings had actually been issued, though Ms Gibson’s solicitors had sent Pride a pre-action letter.

The claim has now been issued: it was issued on 25 May 2016 and served on Pride’s solicitors on 14 June 2016.

Pride is an Oxfordshire-based distributor of mobility scooters. In May 2014 the Office of Fair Trading (‘OFT’) issued a decision finding that Pride and eight of its retailer customers had infringed the Chapter I prohibition in the Competition Act 1998. They did so by agreeing that the retailers would not advertise below-RRP prices on the internet for certain models of scooter. Pride advised the retailers that they should instead state on their websites, “Call for best price”. Pride had been concerned about the promotion of heavily discounted prices on the internet undermining the viability of ‘bricks and mortar’ stores and their ability to offer buyers of mobility scooters pre-sales physical assessments and after-sales support; but the OFT found that the way Pride had gone about trying to address that concern was unlawful. No penalty was imposed on Pride, and Pride did not seek to appeal the OFT’s decision. The decision did not include any finding as to whether consumers had suffered any financial losses.

The claimant Ms Gibson (who did not herself purchase any mobility scooter) is claiming damages on behalf of everyone who purchased a Pride scooter in the UK during the period covered by the infringement. If the Tribunal grants her the collective proceedings order she is seeking, she would then need to advertise the claim so that any consumers who did buy a scooter in that period could exercise their right to ‘opt out’.

Pride has today filed its Acknowledgment of Service stating that it intends to contest the application for a collective proceedings order and also to defend against the claim in full. The Tribunal is likely to list an initial case management conference in the near future at which it will then set a date for the hearing of the application for a collective proceedings order.

These proceedings will be followed with great interest by UK competition lawyers. As this is the first claim of its kind in the UK, the Tribunal will need to consider novel questions as to the principles it should apply when deciding whether or not to grant a collective proceedings order. As part of that consideration, the Tribunal may choose to draw on the jurisprudence of other common law countries that have a longer history of operating class action procedures.

If the claim is allowed to proceed beyond that stage (i.e. if a collective proceedings order is granted), then the Tribunal would need to go on to grapple with complex factual and economic issues concerning the identification and quantification of consumer losses flowing from vertical arrangements relating to how goods are advertised online. This is a topical area in light of the recent focus by competition regulators in the UK and across the EU on online sales restrictions of many and various forms.

Monckton barristers Alan Bates, Michael Armitage and Jack Williams are instructed on behalf of Pride.