In May 2014, the OFT issued a decision finding that finding that Lloyds Pharmacy Limited, the retail pharmacy division of Celesio AG and the Hamsard Group had breached the Chapter I prohibition by entering into a market sharing agreement in relation to the supply of prescription medicines to care homes in England. The infringement lasted less than 6 months and related to an agreement not to supply prescription medicines to existing care home customers between May 2011 and November 2011.

Anneli Howard, instructed by Muckle LLP, acted for the Hamsard Group after the dawn raids following Lloyds’ application for leniency. The Hamsard Group took the novel approach of applying for Type C leniency and, at the same time, requesting early resolution from the outset before a Statement of Objections had been issued. Their admissions and cooperation enabled the case to be fast tracked and merited a substantial reduction, comprising both a reduction for leniency and settlement. The Group also earned a separate reduction for instituting a competition compliance program. The eventual fine was reduced from £646,426 to £370,226.

Anneli advised the company on cooperation strategy and represented the company and its executives in early resolution discussions with the OFT. She also drafted the Group’s response to the Statement of Objections and carried out competition law training for the Group’s employees.

A copy of the OFT’s press releases can be found at:

http://webarchive.nationalarchives.gov.uk/20140402142426/http:/oft.gov.uk/news-and-updates/press/2014/17-14

http://webarchive.nationalarchives.gov.uk/20140402142426/http://oft.gov.uk/news-and-updates/press/2013/82-13

In 2012, the OFT opened formal investigations under Part 8 of the Enterprise Act 2002 to consider whether six furniture/carpet retailers were engaging in the use of misleading reference pricing. Reference prices advertise goods to consumers by including a reference to another, typically higher, past or future price (such as ‘Was £800, Now Half Price £400’ or ‘Now £400, After Event Price £800’). The OFT’s view was that the use of such reference prices could be misleading as they are likely to deceive the average consumer and influence their transactional decisions, contrary to the Consumer Protection Regulations.

Anneli Howard with Paul Harris QC and Anneliese Blackwood acted for Dreams plc in contesting the OFT’s allegations and in framing the commitments offered to resolve its concerns. The OFT closed its investigation in March 2014 following the commitments.

A copy of the OFT’s press release can be found at: http://webarchive.nationalarchives.gov.uk/20140402142426/http://www.oft.gov.uk/news-and-updates/press/2014/19-14

The High Court has today given judgment in claim for damages for breach of Article 35 of the Treaty on the Functioning of the European Union. In September 2012, following an incident at the Port of Ramsgate in which approximately 40 sheep had to be destroyed, Thanet District Council closed the Port with immediate effect to the transport of live animals. Three transporters of live animals sued the Council, contending that the closure was a restriction on the free movement of goods and could not be imposed under Council Regulation (EC) 1/2005 on the transport of live animals, and that the breach was sufficiently serious to warrant an award of damages. In his judgment today, Mr Justice Birss has upheld the claim. He held that Regulation 1/2005 exhaustively harmonised the relevant field and the Council had no power under the Regulation to ban the trade, so that there was a breach of Article 35. On the facts he held that the ban was motivated primarily by a moral objection to the long distance trade in live animals and that breach was sufficiently serious to warrant liability in damages. He noted that the Council was not responsible for the fact that other ports and shipping lines would not take the trade, and the extent of the losses caused by the closure remains to be assessed.

Philip Woolfe appeared for Thanet District Council.

Click here to read the judgment in Barco de Vapor & Ors v Thanet District Council

Chambers is delighted to announce new appointments to the Panels of Junior Counsel to the Crown.  Ian Rogers has been elevated to the Attorney General’s A Panel, Alan Bates, Brendan McGurk and Ewan West have been elevated to the B Panel and Anneliese Blackwood has been appointed to the C Panel.

George Peretz and Peter Mantle have also had their term on the A Panel extended.

Monckton Chambers now boasts 19 panellists. The appointments are a great honour and acknowledge our expertise in public, civil and European Community law litigation.

A Panellists include:

Andrew Macnab, Peter Mantle, George Peretz, Raymond Hill, Ian Rogers and Robert Palmer.

B Panellists include:

Josh Holmes, Ronit Kreisberger, Valentina Sloane, Julian Gregory, Rob Williams, Gerry Facenna, Anneli Howard,  Alan Bates, Elisa Holmes, Ben Lask, Brendan McGurk and Ewan West.

C Panellists include:

Anneliese Blackwood.

Chambers is delighted to announce new appointments to the Panels of Junior Counsel to the Crown.  Ian Rogers has been elevated to the Attorney General’s A Panel, Alan Bates, Brendan McGurk and Ewan West have been elevated to the B Panel and Anneliese Blackwood has been appointed to the C Panel.

George Peretz and Peter Mantle have also had their term on the A Panel extended.

Monckton Chambers now boasts 19 panellists. The appointments are a great honour and acknowledge our expertise in public, civil and European Community law litigation.

A Panellists include:

Andrew Macnab, Peter Mantle, George Peretz, Raymond Hill, Ian Rogers and Robert Palmer.

B Panellists include:

Josh Holmes, Ronit Kreisberger, Valentina Sloane, Julian Gregory, Rob Williams, Gerry Facenna, Anneli Howard,  Alan Bates, Elisa Holmes, Ben Lask, Brendan McGurk and Ewan West.

C Panellists include:

Anneliese Blackwood.

The Court of Appeal has allowed an appeal by BT against the 2012 pay TV judgment of the Competition Appeal Tribunal (“CAT”). The CATs judgment upheld a challenge by Sky to Ofcom’s 2010 Pay TV Statement, which imposed conditions on Sky’s broadcasting licences, requiring it to supply Sky Sports 1 and 2 to other pay TV providers on a wholesale basis.

The Court of Appeal found that the CAT had misconstrued Ofcom’s Pay TV Statement by failing to appreciate the importance of Ofcom’s separate competition concern about price and the effect of certain discounts which the CAT had found Sky was willing to offer.  The Court concluded that, even if the CAT disagreed with Ofcom’s conclusions as to the reasons for the breakdown of negotiations between pay TV providers, Ofcom had in any event expressed an independent competition concern about the price at which supply of the channels might be obtained, which the CAT had failed properly to address in its judgment.  The Court therefore concluded that the CAT’s Order allowing Sky’s appeal and dismissing appeals by BT, Virgin and others, should be set aside, and the matter remitted for further consideration.

The Court of Appeal also rejected a cross-appeal by Sky and the FA Premier League, which challenged  the CAT’s conclusion that Ofcom had jurisdiction to impose the relevant conditions in Sky’s broadcasting licences under section 316 of the Communications Act 2003, in order to ensure “fair and effective competition”.  The Court found that section 316 was not concerned only with competition between providers of content for TV services, but allowed Ofcom to impose licence conditions so as to ensure fair and effective competition in the wholesale and retail provision of licensed services to consumers generally.

Jon Turner QC and Gerry Facenna acted for BT in the appeal, Meredith Pickford acted for Sky and Josh Holmes acted for Ofcom. Ben Lask also acted for Ofcom in the CAT

A copy of the judgment is available here.

The third annual Sir Jeremy Lever lecture was held on Friday 14^th February, to celebrate the career of Sir Jeremy Lever KCMG, QC, a pioneer of both the practice and academic study of competition law in Europe.

The lecture titled “Europe – The baseless fabric of a vision?” was given by The Rt Hon Sir David Edward KCMG, QC and chaired by The Rt Hon The Lord Hope of Craighead KT, FRSE, PC.

The Rt Hon Lord Hope of Craighead KT, FRSE, PC opened the lecture with remarks that Sir Jeremy Lever KCMG QC “can truly be said to have been a pioneer. ..When he began European Community law was far from fashionable.  But he saw that it had a future, and under his leadership and inspiration Monkton has become the leading set for that subject in London.”

 

 

 

Left to right: Piers Gardner, Professor Sir John Vickers, Warden of All Souls, The Rt Hon Lord Hope of Craighead KT, FRSE, PC, Sir Jeremy Lever KCMG QC, Lady Hoffmann, The Rt Hon Sir David Edward KCMG, QC, Professor Timothy Endicott, Dean of the Faculty of Law of the University of Oxford, Professor Stephen Weatherill, The Rt Hon Lord Hoffmann PC, Sir Stephen Sedley (formerly in the Court of Appeal)

 

The event was followed by a celebratory dinner at All Souls College.

 

 

 

Monckton Chambers is pleased to announce the appointment of Ian Rogers to Queen’s Counsel. Ian will be formally appointed by the Lord Chancellor on 14 April 2014.

Called to the Bar in 1995, Ian has vast expertise in his specialist fields of public law, human rights, EU and employment law. Novel cases raising issues under the Human Rights Act are a particular strength of his practice. Much of his advisory, drafting and advocacy work is in the commercial sphere.

He has recently appeared in the Supreme Court, Court of Justice of the European Union, EFTA Court, Court of Appeal and Isle of Man courts. In these courts he has secured pensions for part-time judges (O’Brien v Ministry of Justice); defended the tobacco display bans in the UK and Norway (Imperial Tobacco v Secretary of State for Health, Philip Morris v Norway) and the UK cigarette vending machine ban (Sinclair Collis v Secretary of State for Health); and resisted a free movement challenge to the monopoly on ferry services between the Isle of Man and the UK (Seaside Shipping v Steam Packet Company).

Ian is now returning from a period of research on one of his particular interests: the field of commercial “human” rights and how businesses may rely on corporate privacy and property rights to protect their commercially sensitive information. This work links a number of his cases in the fields of procurement, information law, competition, civil procedure, whistle-blowing, surveillance, industrial espionage and mutual legal assistance.

Directories have recommended Ian in the fields of European and Competition Law, Public and Administrative Law, Civil Liberties and Human Rights, and Media, Entertainment and Sport. They have applauded him as being “brilliant, diligent, and ever-helpful”, and for his ability to “get to the heart of an issue quickly” and “provide clear and concise” advice. He has been commended for being “particularly adept at handling free movement of goods matters”, for having “argued innovative points of EU law before the Supreme Court several times” and for “playing to chambers’ recognised strength on all European law matters. This includes strength in ECHR litigation.”

Members and staff warmly congratulate Ian on his success.

On Friday, the Investigatory Powers Tribunal held a rare public hearing into complaints against the UK’s intelligence services following media reports of their alleged involvement in mass surveillance of phone calls, text messages, emails and internet use in the UK and overseas.

A coalition of human rights groups from seven different countries allege that GCHQ, MI5 and MI6 unlawfully intercepted emails, internet use, phone calls and text messages in cooperation with the US National Security Agency by way of such programmes as Prism, Tempora and Upstream.

Eric Metcalfe is junior counsel for Liberty, the American Civil Liberties Union, the Canadian Civil Liberties Association, the Egyptian Initiative for Personal Rights, the Hungarian Civil Liberties Union, the Irish Council for Civil Liberties and the Legal Resources Centre (South Africa).

A five-day open hearing of the claims is expected to be held in July.

Click here to read the Guardian report.

The First-tier Tribunal has dismissed an appeal by Trapps Cellars against assessments totalling about £1.5 million in relation to the diversion of a number of lorry loads of spirits at some point between Trapps’ warehouse in London and two destination warehouses in Italy.

The Tribunal rejected Trapps’ main argument that it was not liable to duty because the diversion was a “loss” occurring under suspension arrangements which was attributable to “fortuitous events”. It argued that those fortuitous events entitled it to relief from duty under Article 14(1) of Directive 92/12/EEC. The Tribunal dismissed that argument, holding that goods were only “lost” within the meaning of Article 14(1) if they were unusable or not consumable. Diverted goods were not “lost” simply because the tax authorities were unable to ascertain where they were and could not collect the excise duty owing. In such circumstances, the missing goods remained available for sale to consumers within the EU.

In any event, the Tribunal found that Trapps had failed to establish the pre-conditions for a fortuitous event. It needed to show that the loss resulted from abnormal and unforeseeable conditions, which could not have been avoided even with the exercise of all due care. The Tribunal held that it was not enough for an excise warehousekeeper to establish that it acted in good faith. It had to show that it had taken appropriate measures to limit risk. In this case, Trapps did not take due care to prevent the consignments from going missing by undertaking due diligence on the consignees and the transporters.

The Tribunal also rejected an argument by Trapps that HMRC had allowed the consignments to run and that it should therefore have remitted duty, by analogy with the ECJ’s decision in relation to customs duty in Case C-61/98 De Haan. In that case, the ECJ held that a custom agent was not liable where it was not informed that consignments were being allowed to run as part of a criminal investigation. The Tribunal held that, although there was evidence that the Italian authorities had suspicions regarding the two Italian destination warehouses, that did not entitle Trapps to remission of duty, since De Haan was limited to cases where the tax authorities deliberately allowed offences or irregularities to be committed. There was no requirement to remit duty just because the tax authorities had suspicions at the time of the diversions, since a tax authority is not obliged to warn any taxpayer of its suspicions.

Finally, the Tribunal held that HMRC had jurisdiction to assess Trapps to UK excise duty – Trapps could not suggest that it should have been assessed to Italian excise duty, which was now out of time for assessment. Under the jurisdiction provisions set out in Article 20 of Directive 92/12/EC, the excise duty point was in the UK where the goods did not arrive at their destination. The duty point would only have arisen in Italy if the irregularity had been detected in the course of the movements by the Italian authorities. In the present case, the irregularities were detected after the end of the movement – and in any event, they were first detected by HMRC and not by the Italian authorities.

Raymond Hill represented HMRC, instructed by Shepherd & Wedderburn.