The Court of Appeal has allowed IMI’s appeal against the judgment of Roth J, and has ruled that follow on claims brought in the tort of conspiracy by claimants in the Travis Perkins group cannot be brought under section 47A of the Competition  Act 1998.

The Court found that a conspiracy claim could in principle be brought under section 47A if supported by the Commission’s infringement findings – that may only be in rare cases.  The Court nevertheless upheld the approach to section 47A established in the Enron cases, and rejected a wider interpretation that the claim made need only be consistent with the Commission’s findings.

In the present case, the conspiracy claim depended on showing that the defendants intended to injure the claimants.  The Court of Appeal disagreed with the judge’s finding that an intent to injure could be inferred from the defendants’ intention to benefit their own businesses, noting for instance that the claimants might have been able to pass any losses on.

The Court hence ordered that the remaining conspiracy claims should be struck out.

Click to read the Newson v IMI full judgment

or our case note on Newson v IMI PLC written by Brendan McGurk.

Monckton Chambers is pleased to announce that Nicholas Paines QC has been appointed to the Law Commission. He joins the Commission on 18th November 2013, and will lead their work on public law.

Nicholas Paines QC is a leading silk in EU and public law. He sits as a Deputy High Court Judge in the Administrative Court, a Deputy Judge of the Upper Tribunal (Administrative Appeals Chamber) and the First-tier Tribunal (Tax Chamber) and a Recorder in the Crown Court. He is also a member of the Bar of Northern Ireland.

Members and staff warmly congratulate Mr Paines QC on this prestigious appointment.

The Court of Appeal today allowed HM Revenue and Customs’ appeal in ongoing litigation about whether UK law on the VAT treatment of gaming machines was in breach of the principle of fiscal neutrality.

The litigation concerns claims by Rank, and many other operators in the gaming industry, amounting in total to many hundreds of millions of pounds, for repayment of VAT paid on takings from gaming machines, operated by them under Part III of the Gaming Act 1968 and subject to VAT under the provisions of the VAT Act 1994 as it then stood.  Rank argues that the taxation of its machines breached the principle of fiscal neutrality as, according to Rank, certain other similar machines were not subject to VAT.

Following a judgment of the European Court of Justice in 2011, the issue before the Court of Appeal was whether Rank was right to say that machines known by the industry as “section 16/21 machines” were not subject to VAT.  The Court of Appeal held that they were subject to VAT.  The key question was whether, in the disputed machines, the element of chance in the game was provided “by means of the machine”: the Court agreed with HMRC that where the element of chance was determined by a random number generator linked by a wire to the terminals on which the punter played, the element of chance was determined “by means of the machine” .  Since the disputed machines were in law taxable, it followed that there was no difference in tax treatment between them and Rank’s taxed machines, and hence no breach of the principle of fiscal neutrality in respect of these machines.

Although the judgment is an important victory for HMRC in this long-running litigation, Rank’s claim based on the exemption from VAT, at the relevant time, of fixed-odds betting terminals (FOBTs) has still to be considered by the First Tier Tribunal.  A judgment of the First Tier Tribunal in 2009 that upheld that part of Rank’s claim was overturned by the Upper Tribunal last year and sent back to the First Tier Tribunal for redetermination: the issue in that case will be whether, as Rank claims but HMRC deny, FOBTs were similar to Rank’s taxed gaming machines.

George Peretz and Laura Elizabeth John acted for HMRC: Paul Lasok QC and Valentina Sloane acted for Rank.

Click here to read the full HMRC v The Rank Group plc judgment.

Frank Mitchell wrote the following HMRC v Rank Group Plc case note.

The Court of Appeal has today given judgment in the two ‘French Blocking Statute’ appeals, Servier v Secretary of State for Health and Alstom & Areva v National Grid Electricity Transmission plc.

The Court of Appeal held that the English Courts have full jurisdiction to apply their procedural rules to parties in proceedings before them, and it is well established that this includes a discretion to make directions that would entail the parties potentially breaching a foreign law.  The High Court therefore has jurisdiction to order responses to Part 18 requests (as in the Servier case), and to order disclosure (as in the National Grid case), in circumstances where complying with such orders would breach the so-called ‘French Blocking Statute’ (Law No. 68-678 of 26 July 1968).

In the leading judgment, Lord Justice Rimer dismissed the argument that it was mandatory for the Court in these circumstances to make a request to the French Court under Regulation 1206/2001 on the taking of evidence in civil and commercial matters.  He also held that the judgments of Mr Justice Henderson (in the Servier case) and Mr Justice Roth (in the National Grid case) exercising their discretion to make orders against the defendants/appellants were “unimpeachable“.

Paul Lasok QC appeared for the Secretary of State for Health, and Jon Turner QC and Laura Elizabeth John appeared for National Grid Electricity Transmission plc.  Both were successful respondents in the proceedings.

Click here to read the full SoS for Health v Servier Laboratories Ltd judgment.

The Department for Culture Media and Sport has successfully resisted a claim for over £400million in Francovich damages over the compatibility with EU telecommunications directives of its decision to maintain in force a commercial use restriction for GSM Gateways.

The High Court held that DCMS was justified in relying on public security concerns in imposing and maintaining  the restriction for multi-user gateways.

On an alternative case relating to single-user gateways, the Court found that the restriction was disproportionate but found that that infringement did not constitute a manifest and grave disregard of the UK’s obligations under EU law such as to justify Francovich damages.

Philip Moser QC and Brendan McGurk acted for DCMS.

Dan Beard QC acted for the Home Office, intervening.

Click here to read the full judgment in Recall Support Services v Secretary of State for Culture Media & Sport

Ligia Osepciu wrote the following case note on Recall Support Services Limited et al v Secretary of State for Culture Media and Sport.

Monckton Chambers was honoured to be awarded “Set of the Year” in EU and Competition law at the annual Chambers Bar Awards.

Congratulations to everyone.

Monckton Chambers is delighted to announce that Josh Holmes has been awarded “Junior of the Year” for EU and Competition law at the annual Chambers Bar Awards.

Congratulations to Josh.

Monckton Chambers is delighted to announce that Daniel Beard QC has been awarded “Silk of the Year” for EU and Competition law at the annual Legal 500 UK Awards.

Congratulations to Daniel.

Raymond Hill was recently instructed in his 50^th case before the European Court of Justice in Luxembourg.

Raymond reached this milestone on 2^nd October 2013, in which, unusually, he argued two separate cases for the United Kingdom before midday. First, the ATP case relating to the management of defined contribution pension schemes and, secondly, the Bridport case as to whether green fees to play at members’ golf clubs should benefit from the sporting exemption.

Raymond has been involved in many leading VAT and Direct Tax cases before the ECJ such as; LMUK and Baxi, AXA Denplan, Wheels, Deutsche Bank and Fiscale Eenheid PPG. He is available to appear for both the taxpayer and HMRC and the UK Government.