The line-up for the annual Justice conference on 20 October 2014 has been confirmed, with Steve Broach of Monckton Chambers speaking on disability and human rights. Steve will join a panel with Jenni Richard QC, chaired by Angela Truell from the legal unit at Mind. The session will cover the important human rights judgments in the disability field of the past 12 months, including the Supreme Court’s judgment in the Cheshire West litigation concerning the definition of a deprivation of liberty in the context of Article 5 ECHR. The panel will also consider the likely impact of the recent European Court of Human Rights judgment in McDonald v UK, the first time the ECtHR has found a breach of Article 8 ECHR in the context of care provision to a disabled person. Steve was instructed in both these cases.

The Justice conference will cover the full range of human rights developments in the past year with a stellar line-up of speakers.

On 9 July 2014, the Competition Appeal Tribunal handed down judgment in response to an interim application made by HCA International Limited (“HCA”) to introduce expert evidence as part of its challenge to the decision of the Competition and Markets Authority (“CMA”) to require HCA to divest two of its hospitals in Central London as part of its private  healthcare investigation.  The Tribunal held that It was exceptional for expert evidence to be admitted in applications for review under the  Enterprise Act 2002 s.179.  Expert evidence would only be admitted in situations where it was required to assist the Tribunal in understanding an issue which it had to determine.

The Tribunal held that the approach to be applied to an application for review under s.179 was that appropriate to judicial review. The admission of expert evidence in judicial review proceedings was exceptional and was confined to situations where expert evidence was required to assist the court in understanding an issue which it had to determine.  In previous cases, the Tribunal had applied the principles applicable to admission of expert evidence in judicial review proceedings and had been slow to admit expert evidence in s.179 challenges. There were strong reasons which supported that approach. If expert evidence was admitted in relation to matters which ought to be the subject of submissions, that would waste time and money and might give rise to confusion and a loss of proper focus. Opposing parties would feel driven to adduce their own expert evidence and everyone might feel driven to cross-examine the opposing expert witnesses to avoid it being said that their evidence was unchallenged. Further, the CMA had particular expertise in evaluative assessment of economic evidence. In review proceedings, the well-established approach was that a substantial degree of discretion or significant margin of appreciation was allowed in relation to expert assessments made by the CMA. The CMA was rightly resistant to attempts to convert its review jurisdiction into something resembling an appeal on the merits. The Tribunal was also well equipped to assess the relevant factual matters in a s.179 case without needing assistance from expert witnesses. It was a body with technical expertise and the sort of situation in which technical assistance was required was not likely to be common.

The Tribunal held that, in this case, there was nothing about the expert report which led to the conclusion that it would be assisted by its admission or that the just determination of the case required it. Moreover, several matters pointed strongly against its admission. The expert was not coming to the proceedings as a fresh and independent expert, but as HCA’s economic adviser. He had not been briefed clearly regarding the difference between an appeal on the merits and the approach to be adopted under judicial review principles. His report did not address the distinct questions which were relevant in s.179 proceedings, such as whether a regulator could reasonably hold particular views or reach particular conclusions, as distinct from whether the expert himself agreed with those views or conclusions. Insofar as he had made points which were suitable for consideration in the s.179 proceedings, they did not require expert opinion and there was no good reason why HCA could not make those points. It was not necessary for expert evidence to be admitted to secure compliance with the  European Convention on Human Rights 1950 art.6  since points of substance could be made by HCA’s legal representatives. Further, the requirement for the Tribunal to determine the proportionality of the remedy adopted by the CMA did not require expert opinion. There were strong reasons why the Tribunal should not be diverted from the efficient and speedy resolution of disputes on judicial review principles by the admission of expert evidence.

Please click to view the judgment in HCA International.

Kassie Smith QC and Rob Williams acted for the CMA.

Josh Holmes acted for HCA.

Ronit Kreisberger acted for the intervener, TLC

The Divisional Court has held that the government’s proposed ‘residence test’ for civil legal aid is unlawful. In a case brought by the Public Law Project, the Court ruled unanimously that the test was outside the scope of powers granted by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 because it introduced a criterion which had “nothing to do with need”. The Court also held that residence was “not a lawful ground for discriminating between those who would otherwise be eligible for legal assistance.”

Eric Metcalfe acted for the Office of the Children’s Commissioner which was granted leave to intervene in support of the Public Law Project’s case.

Please click to view the judgment in R(Public Law Project) v Secretary of State for Justice [2014] EWHC 2365 (Admin)http://www.bailii.org/ew/cases/EWHC/Admin/2014/2365.html

On Monday 14th July, the Investigatory Powers Tribunal began a five day open hearing into complaints arising from the revelations by Edward Snowden of large-scale collection of private communications, including phone calls, text messages, emails and internet use.

Eric Metcalfe is junior counsel for Liberty and a coalition of international human rights organisations including the American Civil Liberties Union, the Canadian Civil Liberties Association, and the Irish Council for Civil Liberties.

The start of the hearing has been widely reported, including the Daily Telegraph, the Guardian and the Financial Times.

• Liberty
• Daily Telegraph
• Financial Times
• Guardian

The High Court has dismissed a claim that the Home Secretary breached the public law duty of fairness when refusing an international student’s application for leave to remain in the UK.  Applying the principles laid down by the Court of Appeal in R (Q) v SSHD [2004] QB 36, the Court accepted that the Home Secretary was required to administer immigration control in a manner that was fair and proportionate in all the circumstances, but concluded that she had discharged that duty in the present case through a combination of the Immigration Rules and accompanying guidance to international students.

Ben Lask acted for the Home Secretary.

Click here to read the full judgment in R (Afzaal) v Secretary of State for the Home Department [2014] EWHC 2215.

In a detailed judgment, the High Court today granted permission in a judicial review claim against the Secretary of State for International Development concerning UK development aid to Ethiopia.

The Claimant, who is known only as Mr O because of the risk of reprisals, is an Ethiopian national. Like many others in his community, he claims that he was forcibly removed from his home and suffered severe abuse in the course of the Ethiopian Government’s so-called “villagisation” programme. It is alleged that UK aid to Ethiopia has contributed to these human rights violations.

UK development aid is provided only on the express condition that the recipient Government is not in significant breach of its human rights obligations. Mr O argues that contrary to her stated policy the Defendant has failed to create or follow a sufficient system to assess whether Ethiopia is in breach of this condition. Mr Justice Wary found that the claim was arguable and “deserves a full hearing.” He refused permission in relation to a second ground regarding the Defendant’s refusal to publish her assessment but held that this could be relied on in support of the main claim.

Nikolaus Grubeck is acting for the Claimant (led by Jessica Simor QC).

Please click to view the judgment in R (O) v Secretary of State for International Development

This case has received coverage in various media, including The Guardian and The Express.

The Administrative Court has granted an application for judicial review brought by Drax Power Ltd against the Department for Energy and Climate Change (“DECC”).  The case concerned the rejection by DECC of Drax’s application for state support in the form of an Investment Contract for conversion of one of the coal-fired units of Drax Power Station to the sole use of biomass fuel.   DECC had concluded that Drax had failed to demonstrate that without the grant of an Investment Contract, there was a significant risk that that the electricity generation to which the contract related, would not occur or would be significantly delayed. Mrs Justice Andrews concluded that DECC’s decision was Wednesbury unreasonable and made a declaration that Drax had satisfied this criterion. The learned Judge has remitted the matter for further consideration.

Tim Ward QC acted for Drax Power Ltd, instructed by Herbert Smith Freehills.

Please click to view the judgment in R (on the application of Drax Power Limited) v Secretary of State for Energy and Climate Change

Monckton Chambers is delighted to announce the arrival of 7 new tenants.

Five public law specialists have joined Monckton Chambers.  They are leading public law silk Ian Wise QC, together with highly regarded Azeem Suterwalla, Steve Broach, Nikolaus Grubeck and Conor McCarthy.

The group has, both individually and collectively, a strong practice across a range of administrative law, civil liberties, human rights and international law.  Their experience complements Monckton’s existing expertise in public law and reinforces its reputation as a leading set in the area.

Monckton has also taken on two new tenants in the form of pupils Daisy Mackersie and Stefan Kuppen.  Both Daisy and Stefan bring prior experience to Chambers.  Daisy previously worked in the House of Lords, including on the Equality Bill, and Stefan brings over ten years experience in the financial services sector, including at JP Morgan and Goldman Sachs.

Monckton has a long established history of excellence in public law, particularly in the commercial and regulatory context and in challenges involving EU law or human rights. In recent years Monckton has overseen a strategic expansion into other areas of Administrative & Public law, and is now seen as a leading set in areas such as Freedom of Information, Data Protection and Privacy, Environmental law and Financial Services, as well as mainstream judicial review on both the claimant and defendant sides.

Paul Lasok QC, Head of Monckton Chambers said:

“Monckton Chambers welcomes Ian Wise QC, Azeem Suterwalla, Steve Broach, Nikolaus Grubeck, and Conor McCarthy. They are a group of highly regarded and experienced practitioners who greatly strengthen the range and depth of the public law expertise that Monckton Chambers is able to offer its lay and professional clients.  We are also very pleased to continue our organic growth with the recruitment of two outstanding pupils.”

Ian Wise QC said:

“I am delighted to be joining Monckton Chambers and have the opportunity to help grow its existing public law team into a preeminent set in this area of law.  It is a testament to Monckton’s confidence that they have taken the step to invite me and a number of extremely talented juniors to join them at this time.  We are fortunate to be joining an established group of outstanding barristers in a secure and stable set which clearly has an excellent future.  I have no doubt that this enlarged team will be able to offer our clients, both publicly and privately funded, the first rate service that they expect and deserve.  We are not moving to Monckton to abandon our existing clients, quite the contrary, I expect to see more and better publicly funded work at Monckton alongside private work for the team. This is an exciting time for us and we greatly look forward to working with colleagues at Monckton to make this move a success.”

In a judgment handed down today (R(Roche Registration Limited) v Secretary of State for Health acting by the Medicines & Healthcare Products Regulatory Agency [2014] EWHC 2256 (Admin)) Carr J found that that the MHRA acted lawfully in an inspection of Roche carried out in autumn 2013.

The inspection followed an earlier inspection of Roche in which the MHRA had made serious findings of alleged non-compliance with Roche’s pharmacovigilance obligations (obligations on pharmaceutical companies to monitor, and to report to the regulators on, potential problems with licensed medicines).

Following those findings, the European Medicines Agency (“EMA”) had started an investigation of Roche under the Penalties Regulation, which provides for the imposition of fines for breach of (among other things) pharmacovigilance obligations.

Roche complained that: (1) the EMA had had no power to issue a letter under Article 8(3) of the Penalties Regulation to the MHRA requesting provision of the report of the re-inspection to it for use in relation to the penalties proceedings; (2) that the MHRA had acted unfairly in not adequately disclosing the purpose of the re-inspection; and (3) that the MHRA had wrongly reported to the EMA that Roche was liable for the default of other Roche group companies and had wrongly assessed its compliance by reference to new obligations in force only after 2012.

The Judge dismissed the application on all points.  She held that on the facts Roche was not misled as to the purpose of the investigation or as to the possible use of the report in relation to the EMA’s investigation under the Penalties Regulation.  As for the EMA’s letter to the MHRA, although it was not clear that the EMA had power to make that request, the point was immaterial as the report would in any event have been provided to the EMA under other relevant provisions: so it was not appropriate to make a reference to the Court of Justice of the EU.  As to the MHRA’s alleged errors in its report, Roche’s real concern was not with the report but with the possibility that the EMA and the Commission (which takes the final decision on penalties) might accept those views in the context of the Penalties Regulation: and (applying Masterfoods) it was not right for the national court to pre-empt any decision by the Commission along those lines either by deciding the matter itself or by making a reference to the Court of Justice.  Such a decision could be challenged in the General Court, and that was the appropriate course for Roche to take.

George Peretz represented the MHRA.  Please click to download the judgment in Roche Limited v MHRA

In a short judgment this morning in DWF v BIS  the Court of Appeal upheld a contract suspension under Regulation 47G of the Public Contracts Regulations (or rather did so in part), and gave some encouragement to those who look to pursue remedies other than damages in these claims.  The Court also gave helpful guidance as to when Claimants in procurement claims can amend their case to add to their complaints even when 30 days has expired since they learned of the relevant new facts.

 

Michael Bowsher QC appeared for the successful appellant, DWF LLP.  A case note will follow.

 

Please click to download the judgment in DWF v The Secretary of State for Business Innovation

This case has been featured in The Lawyer, which can be viewed here.