Monckton Chambers has received two nominations for The Legal 500 UK Awards 2013.
Monckton Chambers has been shortlisted for EU/Competition Set of the Year, and Daniel Beard QC for EU/Competition Silk of the Year.
The winners will be announced at 10am on 2nd October.
The shortlist for The Chambers 100 UK Bar has been announced, featuring 7 members of Monckton Chambers.
Paul Lasok QC, Jon Turner QC, Daniel Beard QC, Josh Holmes, Meredith Pickford, Valentina Sloane and Rob Williams are included on the shortlist.
The Chambers 100 UK Bar will list the top 100 silks and the top 100 juniors from those ranked in the Chambers UK Bar Guide, which is due for publication this Autumn. Barristers are considered from only the top ranks of the Chambers UK Bar Guide, across all practice areas.
Tim Ward QC has been appointed to the Rugby Football Union (“RFU”) panel to sit as an adjudicator hearing appeals concerning competition issues.
Tim acted as part of the RFU’s appeal panel in 2012 which allowed an appeal by London Welsh RFC seeking promotion to rugby’s Premier League, details of which can be viewed here.
The CAT has granted an application by a number of UK companies to proceed with their claims for damages arising out of the carbon cartel.
The claims, which form part of the Deutsche Bahn proceedings, have been stayed pending the resolution of appeals concerning the limitation issue decided in Deutsche Bahn and Ors v Morgan Crucible and Ors [2012] EWCA Civ 1055. However, in a ruling dated 15 August 2013, the CAT accepted the Claimants’ argument that it has jurisdiction to hear the claims of a number UK companies under Article 5(3) of the Brussels Regulation regardless of the outcome of the continuing appeal. The CAT also concluded that, as a matter of case management, it was better that the UK Claimants claims should proceed now than that they should remain stayed. The CAT has given directions for the forward progress of the UK claims.
The UK Claimants were represented by Jon Turner QC and Rob Williams, who act for all of the Claimants in the proceedings.
Mersen, one of the Defendants to the proceedings, was represented by Kassie Smith QC.
Click here to read the full judgment of Deutsche Bahn UK – Judgment of the CAT – 15 August 2013.
This was an appeal by a male to female transsexual. Under UK legislation (the Gender Recognition Act 2004), she could not be legally recognised as a women because she remained married to her wife. This meant she was unable to claim her state retirement pension from the age of 60 (the pensionable age for women), but instead had to wait until she was 65 (the pensionable age for men). The Appellant claimed that the position under domestic law was discriminatory and in breach of EU law (Directive 79/7 on Equal Treatment in Social Security). In a fully reasoned judgment, the Upper Tribunal dismissed the appeal. The Judge held that there was no discrimination as between women whose gender was acquired and women who were born female. As such the UK scheme was not incompatible with EU law. The Judge further held that the Court of Appeal’s judgment in Timbrell v SSWP [2010] 3 C.M.L.R. 42 did not assist the Appellant because it was concerned solely with the position before the Gender Recognition Act 2004 came into force.
Ben Lask acted for the Secretary of State. Click here to read the full MB v Dept for Work and Pensions Judgment
In this case the High Court considered the proportionate approach to disclosure and trial of abuse of dominance allegations where there is an open EU Commission investigation.
Foundem’s website compares prices and features of products and services. In a 2009 complaint to the EU Commission, and now in this High Court case, Foundem alleges that Google is dominant in online search and in online search advertising and has abused those dominant positions in various respects, including by unfairly demoting Foundem in its search result rankings, and also by giving preferential treatment through the presentation of its search results to Google’s own comparison services over those of Foundem and other similar businesses. The EU Commission opened an investigation into all those allegations in 2010, and in 2012 announced a preliminary assessment that the preferential treatment of Google’s comparison services (but not mentioning the complaints of unfair demotion) may be considered an abuse of dominance. The EU Commission was consulting on commitments by Google, but the entire investigation remained open. It had indicated that, if commitments could be agreed, then the investigation could be closed before the end of this year.
Against that background, Google sought a stay of the High Court proceedings, pending the Commission’s decision on its investigation, arguing that there were grounds to suppose that the Commission might in particular reject the complaints of unfair demotion, on the merits. Foundem, on the other hand, sought standard disclosure in respect of its entire claim, to be given directly. Mr Justice Roth stated that in these circumstances it was in the discretion of the Court to determine what steps short of trial should be taken, having regard to the overriding objective and all the circumstances.
At the Judge’s invitation, the parties agreed that the abuse allegations should be heard first, with the issue of dominance and market definition being held over, to be addressed at a second trial, if liability for the abuse allegations was established . On that basis, the Judge took a targeted approach to disclosure, rather than ordering standard disclosure: he dispensed with the need for disclosure in respect of the “wide-ranging” dominance issues and, in respect of the abuse issues, mainly required Google to disclose, in the first instance, only material documents within the body of documents already provided to the EU Commission.
The Judge also declined to order disclosure at this stage in respect of one of Foundem’s allegations, where (i) he foresaw at least a possibility that the Commission may take a negative decision, and (ii) he also bore in mind that disclosure was likely to be of particular sensitivity where it represented Google’s current algorithms on which its website mechanism operates.
Jon Turner QC acted for Google.
To read the full judgment please click here.
The judgment has also been widely covered in the press.
Tim Ward QC has been elected as Chairman of the Bar European Group 2013 -2015.
The Bar European Group is the specialist bar association of the Bar of England and Wales for practitioners and academics whose area of practice or interest is European law.
For more details, please click here.
Judgment was handed down today by the Court of Appeal in the appeal from the judgment of Mr Justice Ouseley on a number of judicial review challenges to the Government’s decision to proceed with a high speed rail link from London to Birmingham, Leeds and Manchester. The Judge had dismissed challenges to HS2 brought by 15 local authorities located along the route of HS2. The local authorities had contended that the Government’s decision failed to comply with the SEA Directive, that to proceed in Parliament by way of the hybrid bill procedure breached EU environmental law (the EIA Directive), that the consultation leading to the decision was faulty, that the Government failed to comply with its public sector equalities duty and that, in a number of respects, the decision was irrational.
The Court of Appeal (Master of the Rolls, Richards LJ and Sullivan LJ) dismissed the appeal on the EIA, consultation, PSED and irrationality grounds. The Master of the Rolls and Richards LJ also dismissed the appeal on the SEA ground, but Sullivan LJ dissented. He concluded that “if … an SEA is required and there has not been substantial compliance with the [SEA Directive], it would be difficult to think of a more egregious breach of the Directive given the scale of the HS2 project and the likely extent of its effects on the environment”.
The Court of Appeal granted permission to appeal to the Supreme Court on the SEA and EIA grounds.
Kassie Smith QC acted for the local authorities.
Please click here to read the full judgment on HS2 v Secretary of State for Transport
The case has been widely covered in the press;
In a significant victory for the taxpayer, the Court of Appeal handed down judgment today in Pendragon v HMRC, a case concerning alleged VAT avoidance. The judgment is notable both for reinforcing the Pringles principle that an appellate court should be slow to interfere with evaluative findings of a first-tier tribunal and for indicating that the principle of abuse should be applied cautiously and only to those cases where it is really clear on the facts that the essential aim is to obtain a tax advantage.
The Pendragon Group is the largest car sales group in Europe. It implemented a scheme for obtaining finance from a Jersey bank which involved the use of cars as securitisation in such a way that a VAT advantage was also obtained. HMRC contended that the scheme was wholly artificial, did not reflect economic reality and was set up with the sole or essential aim of obtaining an illegitimate tax advantage. That advantage was that the Pendragon Group was able to recover all of the input tax incurred on the purchase of the cars from the manufacturer, but was able to apply the margin scheme to the eventual sale of the cars to a retail purchaser. The First-Tier Tribunal, after a lengthy hearing with cross-examination of the key witnesses and expert evidence, did not accept this contention, holding that the essential aim of the transactions was to obtain finance, but the Upper Tribunal held that the FTT had erred in law in this respect, and that the essential aim was to obtain an illegitimate tax advantage. The principal question on the appeal to the Court of Appeal was whether, in doing so, the Upper Tribunal went beyond what is properly open to an appellate court or tribunal where facts have been found and evaluated by the court or tribunal from which the appeal is brought.
The Court of Appeal held that the Upper Tribunal should not have interfered with the decision of the First-Tier Tribunal. The Upper Tribunal had evidently taken a different view on the essential aim of the scheme but in the absence of any error of law, there was no basis for the Upper Tribunal to substitute its decision for that of the First-Tier Tribunal. The Court of Appeal also observed that given the various ways in which the abuse principle has been formulated by the European Court, the courts should adopt “a cautious approach as regards finding that the principle does apply, in any case which is not really clear on its facts“.
Click here to read the full Pendragon v HMRC judgment.
Valentina Sloane, instructed by KPMG, acted as junior Counsel for the taxpayers.
In Case C-300/12 Ibero Tours GmbH, a reference from the German Bundesfinanzhof, the Advocate General has opined in favour of Ibero, a travel agent, finding that the principle in Elida Gibbs (C-317/94), on the reduction of the VAT tax base where businesses have granted a discount to a consumer also applies to intermediaries such as travel agents, and that that right to reduce the VAT tax base due to a discount granted to consumers applies equally where the service is subject to the margin scheme in Art. 26(2) of the 6th Directive (TOMS).
The judgment of the ECJ is awaited.
Philip Moser QC of Monckton Chambers acted for Ibero.
Raymond Hill of Monckton Chambers acted for the UK, intervening.
