The First-tier Tribunal has just given judgment in a case concerning the disclosure of commercially sensitive information under the Environmental Information Regulations 2006:  Royal Borough of Greenwich v ICO and Shane Brownie EA/2013/0162

A local residents’ group in Greenwich had asked the Council to disclose copies of a “viability assessment” on the basis of which the Council had permitted a private developer to vary the level of affordable housing at a major development site. The Council disclosed versions of the relevant documentation in which the key financial figures and assumptions underlying the assessment had been redacted, on the basis that the exemption in regulation 12(5)(e) for confidential commercial information prevented their disclosure.

The Information Commissioner overturned that decision, and the Council appealed to the First-tier Tribunal. In a decision which contains a detailed consideration of the factors that are relevant (and irrelevant) to the public interest balancing exercise in cases involving the disclosure of allegedly commercially sensitive environmental information, the Tribunal ruled in favour of the residents’ association that the redacted information should be disclosed in its entirety.

Please click here to view the judgment in Royal Borough of Greenwich v ICO and Shane Brownie

This case has been featured in an article in the Evening Standard

The successful City Peninsula Residents association were represented by Michael Armitage, having also been advised during the proceedings by Julianne Kerr Morrison (both on a pro bono basis). Gerry Facenna acted for the Information Commissioner.

 

 

The CMA have successfully resisted claims for judicial review brought by Tobacco manufacturer Gallaher and high street retailer Somerfield Stores, each of whom sought to challenge the lawfulness of the CMA’s refusal to repay penalties which they paid having admitted certain competition infringements at the culmination of the OFT’s Tobacco Investigation. The OFT concluded that a number of  tobacco manufacturers and retailers had been engaged in indirect retail price maintenance in relation to the retail sale of tobacco products. Some of those found to have infringed Article 101/the Chapter 1 Prohibition appealed to the Competition Appeal Tribunal. Gallaher and Somerfield did not having instead entered into Early Resolution Agreements pursuant to which, having admitted the infringements, they received substantial reductions to the penalties payable.

During the settlement process, the OFT was said to have given an assurance to another Early Resolution party to the effect that it could take the benefit of any successful appeals brought by any appealing party. That assurance was not given to any other Early Resolution party. As a result of successful appeals brought by Imperial Tobacco and others, the OFT felt obliged to make a payment to the party who was given the assurance. Gallaher and Somerfield claimed that the OFT’s failure to extend that assurance to any other Early Resolution party (and thus the refusal to make any similar repayments) was unfair and a breach of the principle of equal treatment. In finding that the assurance was in fact made and that that the principle of equal treatment applied in these circumstances, Collins J nevertheless dismissed the claims on the basis that the OFT made a mistake in giving the assurance insofar as it was inconsistent with the principles of legal certainty and finality as they applied to competition infringement decisions. The principle of equal treatment did not now require the CMA to replicate that mistake by way of the repayment of penalties paid by Gallaher and Somerfield.

Please click to view the judgment in Gallaher and Somerfield v CMA

 

Two disabled children, acting through their mothers as litigation friends, have brought a judicial review claim against Warwickshire County Council which will be heard in the High Court today (Thursday 29 January 2015). The case is thought to be the first to consider the new legal scheme for disabled children and children with special educational needs created by Part 3 of the Children and Families Act 2014. Ian Wise QC and Steve Broach act for the Claimants, instructed by Irwin Mitchell LLP.

More information about the case is available in the Irwin Mitchell press release

 

 

 

On 29 January, the Commission announced that it had concluded that the flood reinsurance scheme set up by sections 64ff of the Water Act 2014 is in line with EU State aid rules.  See http://europa.eu/rapid/press-release_IP-15-3884_en.htm.

The aim of the scheme is to ensure that owners of homes in England and Wales that are liable to flooding  have access to affordable buildings and contents insurance.  The scheme sets up an entity – to be known as Flood Re – that will have the duty to provide reinsurance to insurers for the flood risk element of buildings and contents insurance for all homes.  The amount that it charges for such reinsurance is to be set by reference to the council tax valuation of the home.  Insurers can then offer buildings and contents insurance to homeowners in vulnerable areas on the basis that they can obtain reinsurance at a set price against the flood risk element.  The scheme is to be funded by a compulsory levy paid by all insurers that offer buildings and contents insurance in England and Wales, with the amount paid by each insurer being proportional to the gross premiums received by the insurer on such policies.  The scheme administrator has power to raise additional levies, subject to Government approval.

The scheme is to last for 25 years (the relevant statutory provisions are subject to a “sunset clause” that automatically repeals them in 2039).  Flood Re is required to prepare transitional arrangements designed to move towards price-reflective insurance as homeowners and developers take steps to reduce vulnerability to flooding and to make homes more resilient against flood damage.

The Commission’s press release notes that the scheme is financed by the insurance industry.  But it nevertheless indicates that “Since Flood Re would be the only flood reinsurer benefitting from this levy, it could confer on it an economic advantage over its competitors and therefore constitute state aid within the meaning of EU rules.”  It is not therefore clear from the press release whether the Commission reached any concluded view on the question of whether there was aid.

In any event, the Commission concluded that (if there is aid) it is compatible with the common market.  It identified the lack of affordable home insurance in areas vulnerable to flooding as a market failure that the scheme would address.  The scheme is open on an equal basis to all insurers, minimising distortions of competition.  Finally, the Commission noted with approval the provisions designed to move the market slowly away from reliance on the scheme and towards risk-based insurance combined with measures to improve flood resilience.

The Flood Re scheme is of great importance to the insurance industry, housebuilders and to those with houses in areas vulnerable to flooding.  Critics will note that the cost of the scheme will be borne by those who live in homes not liable to flooding, as the levy is likely to be passed on in higher premiums.  But they will to some extent be reassured by the measures being taken to ensure that in the long run insurance premiums become risk-reflective.

George Peretz and Alan Bates have advised on State aid issues arising out of the Flood Re scheme.

The Supreme Court has today dismissed an appeal to sue the police for negligence, by the family of a woman murdered after a 999 delay. The Court also dismissed a cross-appeal by Gwent and South Wales Police and ruled that the claimant’s case in relation to breach of the right to life under Article 2, ECHR must proceed to trial.

Joanna Michael dialled 999 twice during an attack by her boyfriend, before she was stabbed to death in 2009. The Independent Police Complaints Commission (IPCC) found she was failed by South Wales and Gwent Police.

The Supreme Court rejected the arguments put forward by Ms Michael’s family that the police owe a duty of care in negligence where: (i) they are aware or ought reasonably to be aware of a threat to the life or physical safety of an identifiable person, or member of an identifiable small group (“Interveners’ Liability Principle”); or alternatively, (ii) a member of the public gives the police apparently credible evidence that a third party, whose identity and whereabouts are known, presents a specific and imminent threat to his life or physical safety (“Lord Bingham’s Liability Principle”).

 The Court, however, found that South Wales Police and Gwent Police had a case to answer in relation to Article 2, ECHR.

This judgment has received various press coverage, including BBC and the Telegraph.

Please click to view the full press summary in Michael and others (Appellants) v The Chief Constable of South Wales Police and another (Respondents) [2015] UKSC 2.

Please click here to view the full judgment.

Conor McCarthy acted for Cymorth i Ferched Cymru (Welsh Women’s Aid), led by Caoilfhionn Gallagher and instructed by Hopkin, Murray, Beskine Solicitors).

Goldsmiths Centre, 42 Britton St, London EC1M 5AD

Thursday 19 March 2015 | 9.30am Registration for 10am start

The Care Act 2014 is the most significant change to the legal landscape for adult social care since the welfare state was established. With the Act coming into force on 1 April 2014, it is vital that lawyers and practitioners have a clear understanding of its central provisions. This full-day training course, delivered by leading community care barristers at Monckton Chambers, will survey the whole of Part 1 of the Act and the new duties in relation to care and support that it introduces. Key questions to be covered include:

• The well-being principle – a game changer in the approach to adult social care?
• The new national eligibility framework – will more disabled people now be eligible for care and support?
• Support for carers – are carer’s rights now meaningful for the first time?
• Safeguarding – will the new framework keep people safe while respecting rights?
• Advocacy – will the new right to advocacy make sure disabled people’s voices are heard?

The training will be delivered by Ian Wise QC and Steve Broach. Ian and Steve are both highly ranked in the legal directories as specialists in adult social care. They acted together for the Claimant in R (KM) v Cambridgeshire CC, the first time that the Supreme Court considered the previous adult social care law. Both Ian and Steve have extensive experience of delivering training that makes complex areas of law accessible to lawyers and non-lawyers.

Please click to download the Care Act Training flyer.

 

In response to  criticisms of the Chilcot Inquiry, the Guardian has today published a letter from Christopher Muttukumaru about the three key factors which public inquiries must follow when preparing their final reports (“Key factors compound Chilcot inquiry delay”). In the letter, Christopher questions whether the criticisms of Chilcot are well founded.

Christopher, formerly Secretary to the Scott Inquiry, has expertise in the handling of public inquiries. He has given a number of lectures on inquiry procedures.

Please click here to view the full article.

Chambers is delighted to announce new appointments to the Panels of Junior Counsel to the Crown. Eric Metcalfe, Tarlochan Lall and Julianne Kerr Morrison have been appointed to the C Panel as from 2nd March 2015.

Monckton Chambers now boasts 20 panellists. The appointments are a great honour and acknowledge our expertise in public, civil and European Community law litigation.

Chambers is delighted to announce new appointments to the Panels of Junior Counsel to the Crown. Eric Metcalfe, Tarlochan Lall and Julianne Kerr Morrison have been appointed to the C Panel as from 2nd March 2015.

Monckton Chambers now boasts 20 panellists. The appointments are a great honour and acknowledge our expertise in public, civil and European Community law litigation.

Judgment was handed down this morning in the case of Edenred (UK Group) Ltd v (1) Her Majesty’s Treasury (2) Her Majesty’s Commissioners for Revenue and Customs and (3) National Savings and Investments.

The claimant, a provider of childcare vouchers, sought to challenge the Government’s proposed delivery of its flagship policy for Tax Free Childcare (“TFC”), introduced in the 2013 Budget.

Having undertaken extensive consultation, the Government had decided that TFC should be delivered by HMRC working in partnership with NS&I, with services delivered by NS&I’s delivery partner Atos IT UK Limited under a contract entered into in April 2014 following a competitive procurement.

Edenred (a member of the Computer Voucher Providers’ Association) challenged that decision on the basis that the arrangements between HMRC and NS&I constituted an untendered public contract and that the amendment to NS&I’s contract with Atos to provide services in support of TFC constituted a material variation of that contract.

Both allegations were comprehensively dismissed by Andrews J.  A case-note will follow shortly.

Please click to view the full Edenred v HM Treasury judgment

Philip Moser QC, Ewan West and Anneliese Blackwood (instructed by the Treasury Solicitor) acted for the Defendants