Monckton Chambers has been named the Set winner of the EU and Competition law category, for the Bar section, in The Legal 500 United Kingdom Awards 2015.
The Set was also shortlisted for Chambers of the Year for Public Law.
In addition, Jon Turner QC was nominated for “Silk of the Year” for EU and Competition law, an award he won last year.
Generics (UK) Limited t/a Mylan v Warner-Lambert Company LLC & ors [2015] EWHC 2548 (Pat)
Warner-Lambert has claimed a second medical use patent for the drug Pregabalin for treatment of neuropathic pain. Pregabalin was previously patented as a treatment for epilepsy and generalised anxiety disorder.
A competitor, Mylan, sought revocation of the second use patent for insufficiency and lack of inventive step against Warner-Lambert (“the validity proceedings”). Another competitor, Actavis, launched a generic version of the drug under a “skinny label” (being one with only non-patented indications) and Warner-Lambert brought an action against Actavis (“the infringement proceedings”). Although Warner-Lambert was earlier refused an interim injunction, a third party, NHS England, had been ordered to issue guidance with the aim of ensuring that only Warner-Lambert’s Pregabalin product would be prescribed for neuropathic pain pending trial. The Secretary of State for Health intervened in the infringement proceedings.
Following back-to-back hearings of the validity and infringement proceedings, Arnold J held that the principal second use patent claims (pain and neuropathic pain) were invalid for insufficiency. Some subsidiary use claims were upheld as protected by the patent. Arnold J held further that Actavis had not infringed, and would not have infringed even if those principal claims had been valid.
Arnold J concluded with observations on the need for a system, whereby patentees who wanted their second medical use patents enforced provided NHS England with all the information and assistance to enable it to issue appropriate guidance as and when required and generic companies who wanted their interests protected would also cooperate with NHS England.
Philip Moser QC was one of the counsel for the Secretary of State in the infringement proceedings.
To read the full judgment please click here: Generics (UK) Limited ta Mylan v Warner-Lambert Company LLC & ors
The 2015 Chambers Bar Awards shortlist has been announced. Monckton Chambers has once again been nominated for ‘Set of the Year’ in Competition. Monckton has been nominated in this category for seven consecutive years, successfully winning the award five times.
Additionally, we are pleased to announce that Tim Ward QC has been nominated for ‘Silk of the Year’ along with Ronit Kreisberger for ‘Junior of the Year,’ in the Competition category. Gerry Facenna has also been nominated for ‘Junior of the Year,’ in the Environment/Planning category.
The results will be announced at Old Billingsgate on Tuesday 27th October.
The 2015 Chambers Bar Awards shortlist has been announced. Monckton Chambers has once again been nominated for ‘Set of the Year’ in Competition. Monckton has been nominated in this category for seven consecutive years, successfully winning the award five times.
Additionally, we are pleased to announce that Tim Ward QC has been nominated for ‘Silk of the Year’ along with Ronit Kreisberger for ‘Junior of the Year,’ in the Competition category. Gerry Facenna has also been nominated for ‘Junior of the Year,’ in the Environment/Planning category.
The results will be announced at Old Billingsgate on Tuesday 27th October.
On 6 August 2015, the Commercial Court granted Visa Europe’s application for a request to be made to the Commission, pursuant to Article 15 of Regulation 1/2003/EC. That provision enables national courts to ask the European Commission to cooperate by providing information that may be relevant for ongoing domestic antitrust proceedings.
This is the first time this provision has been used to request information other than (i) an opinion from the Commission or (ii) information that is part of a Commission case file in an Article 101 or 102 TFEU investigation. In this case Visa requested access to the data underlying the Commission’s Final Results of its Survey of merchants costs of processing cash and card payments published in March 2015. This data was gathered by the Commission’s consultants Deloitte from volunteer merchants who are not themselves under investigation for any competition law breach.
The claimants in the jointly case managed Commercial Court actions against Visa did not formally oppose Visa’s application, but raised concerns about the necessity and proportionality of the request as well as third party confidentiality concerns.
Hamblen J ordered that the request should be made on terms under which all third party data would be anonymised, and on the basis of a special confidentiality ring which will be set up specifically for this purpose.
Anneli Howard (instructed by Linklaters LLP) acted for the Applicants, Visa Europe a.o., the Third to Fifth Defendants in the claims.
Tim Ward QC and Rob Williams (instructed by Humphries Kerstetter) acted for the Tesco group of Claimants in the jointly case managed proceedings.
In a judgment on 25 August 2015 the High Court refused subject access claims brought under the Data Protection Act 1998 by two Burmese migrant workers facing capital charges in Thailand.
The two men are accused of killing two British tourists on a Thai island in 2014. They maintain their innocence and have raised concerns about the fairness of the proceedings and forced confessions allegedly obtained from them under torture. The Prosecution is seeking a death sentence if the men are convicted.
The Claimants sought access to a report prepared by the Metropolitan Police in respect of the investigation by the Thai authorities. The Metropolitan Police resisted disclosure on the basis that it had been required to give an assurance of confidentiality to the Royal Thai Police and had duly done so.
Mr Justice Green accepted the Claimants’ argument that determining the application under the Data Protection Act required him to balance the Claimants’ interests, including the right to life and the right to a fair trial, against the interests of the Metropolitan Police to maintain confidentiality in their cooperation with the Thai police. He held that he had to apply anxious scrutiny to this proportionality exercise but ultimately refused to order disclosure on the basis that there is nothing in the personal data – which only the Judge and the Metropolitan Police have seen – that would be of any real value to the Claimants in their ongoing criminal trial in Thailand.
Gerry Facenna, Julianne Kerr Morrison and Nikolaus Grubeck acted for the Claimants.
The judgment is available here.
Media coverage includes: BBC, The Guardian, Reuters.
Last October, Visa successfully obtained summary judgment from the Commercial Court in the interchange fees litigation, striking out over 30 years of potential damages sought by a group of 12 retailers, totalling over £500m. The retailers’ appeal against the ruling was heard before the Court of Appeal on 21/22 July.
The Court of Appeal judgment {[015] EWCA Civ 883 was handed down today, where the Chancellor confirmed the well-established Johnson “statement of claim test” regarding the application of s.32(1)(b) of the Limitation Act 1980 (whereby Claimants can extend the 6 year statutory limitation period). The test looks at whether there was sufficient material in the public domain, which the claimants were either aware of or could have reasonably discovered, in order for them to draft a prima facie case in a statement of claim.
The Court of Appeal confirmed that “relevant facts” in s.32(1)(b) are construed narrowly to include those necessary to complete the cause of action. It is not necessary for a claimant to know facts which might assist (i) in rebutting a potential defence (such as exemption under Article 101(3) TFEU), (ii) in strengthening the case evidentially, (iii) providing commercial considerations regarding the advantages or disadvantages in commencing proceedings or (iii) in quantifying loss. Such facts are not “relevant” for the purposes of s.32(1)(b)).
The Court of Appeal firmly rejected the appellants’ arguments that competition law damages claims are sui generis as a EU right such that they require a modification of the test. It also rejected the argument that the EU principles of effectiveness and full compensation and/or the forthcoming Damages Directive required a different interpretation to be applied to the Act.
On the facts, the Chancellor upheld Simon J’s ruling that the retailers had pleaded all the necessary ingredients for their cause of action in the particulars of claim, which had been signed by a statement of truth, and which could not be struck out. The retailers accepted that they had discovered no new facts since the start of the limitation period in 2007. Although the claimants argued that there were still some residual facts that remained unknown to them, the Court of Appeal held that those matters merely went to the strength of the case and did not go to critical parts of the cause of action, which had already been pleaded in sufficient detail.
The Court of Appeal did allow the appeal against the award of indemnity costs, holding that the weakness of the appellants’ case was not a justification on its own for an indemnity award.
The Appellants have sought permission to the Supreme Court.
Anneli Howard (instructed by Linklaters LLP) acted for the Applicants, Visa Europe a.o., the Third to Fifth Defendants in the claims, who took the lead in the application.
Please click here to read the Court of Appeal Judgment.
Societe Cooperative De Production Seafrance S.A. (Respondent) v The Competition and Markets Authority and another (Appellant)
The Supreme Court has granted permission for the Competition and Markets Authority to appeal the Court of Appeal of England and Wales’ decision in a case relating to a dispute over whether the acquisition by Eurotunnel of 3 out of Seafrance’s 4 ferries, together with certain other business assets, which were not trading at the time of the acquisition, amounted to an “enterprise” (i.e. “the activities or part of the activities of a business”) so as to give rise to a “relevant merger situation” over which the CMA had jurisdiction. The Court of Appeal refused permission to appeal. The Supreme Court described the case as one of “particular public interest”.
Paul Harris QC and Ben Rayment were instructed by the CMA.
Daniel Beard QC and Rob Williams were instructed by the SCOP.
A unanimous Court of Appeal upheld the first instance decision which found that the detention policy used by British forces in Afghanistan was unlawful. The Court of Appeal also allowed Serdar Mohammed’s cross-appeal, ruling that his private law claim was not barred by the Crown act of state principle.
The judgment by the Lord Chief Justice, Lord Justice Lloyd Jones and Lord Justice Beatson held: “It is, as we have stated, a longstanding fundamental principle of common law that interference with personal liberty is unlawful unless the person responsible (here the Secretary of State) can show it is justified. In the particular circumstances of [Serdar Mohammed]’s case, there was no authority to detain either under the legal regime established by the United Nations or under the law of Afghanistan or under UK legislation.” The Court of Appeal further ruled that “procedural safeguards appropriate under international law for a non-international armed conflict were not put in place by the Secretary of State. … [Serdar Mohammed]’s detention was in any event made unlawful as a result of the failure to provide such procedural safeguards.”
Sample media coverage of the judgment includes:
The Star
Nikolaus Grubeck acted for Serdar Mohammed
Anneli Howard in conjunction with Informa CPDcast has published a podcast on Antritrust Damages Actions in the UK Courts and the impact of the new European Damages Directive and the Consumer Rights Act 2015. The podcast lasts 30 mins and includes slides and a test, attracting 1 CPD point for solicitors and barristers
After completing the course you will:
Monckton clients have been granted free access to the podcast for the rest of 2015. Please email marketing on marketing@monckton.com so that we can send you the voucher code. To take advantage of this offer:
Please let us know if you find this facility useful and would like to suggest further topics for the future.
