The High Court today handed down judgment In an important decision for those considering the English High Court as a forum for damages claims in international competition law cases.

A group of Toshiba companies claimed damages against companies alleged to have taken part in an international cartel in the supply of industrial copper tubing.

The European Commission had made an infringement decision against parent companies in three corporate groups.  The UK claim included allegations of liability against UK subsidiaries of those companies, as well as the parents.

The Defendants argued that there was no valid claim against the UK subsidiaries, which did not form part of the same undertakings as their parents.  They also argued that the Court was in a position to give summary judgment against the Claimants based on witness evidence from officials in the UK companies who said that their companies had not been involved in any cartel behaviour.

These allegations were decisively rejected by the Chancellor of the High Court.  He found that the claims against the UK subsidiaries were properly constituted, and that the attempts by the Defendants to obtain summary judgment were misguided.  This meant that there was also jurisdiction to sue the foreign domiciled parent companies in the English Court, under Article 6 of the Brussels Regulation.

The judgment built on the two leading precedents of Provimi and Cooper Tire, and emphasised that in a secret cartel case the strength of the claimants’ case cannot be assessed, let alone particularised, until after disclosure of documents.

Jon Turner QC acted for the Claimants.

Daniel Beard QC acted for the 1st to 4th Defendants and Kassie Smith acted for the 9th Defendant”

For only the second time in its history, the Competition Appeal Tribunal has given judgment on a security for costs application in the case of 2 Travel Group Plc (in liquidation) v Cardiff City Transport Services Ltd.

The Claimant in this action seeks damages from the Defendant pursuant to section 47A of the Competition Act 1998. The claims follow on from a decision taken by the Office of Fair Trading on 18 November 2008. In the Decision, the OFT found that, between 19 April 2004 and 18 February 2005, the Defendant infringed the prohibition imposed by section 18(1) of the Act (“the Chapter II prohibition”) by engaging in predatory conduct against the Claimant which amounted to an abuse of its dominant position in the relevant markets.

The CAT ruled that the award of security would very likely have the effect of stifling a genuine claim and commented that the Claimant had taken all reasonable steps to exhaust those avenues of funding that are realistically available to it, and any requirement to provide security would carry a very real risk of extinguishing the proceedings.

The Tribunal went on to say that it was very concerned that making an order for security for costs would risk extinguishing a genuine claim by a company in liquidation, in circumstances where it cannot be excluded that the Tribunal might ultimately conclude that the Claimant’s impecuniosity has been caused by the Defendant and that it’s conclusion was fortified having regard to the findings of the OFT contained in the Decision, which are (subject to direction by the Tribunal) binding on the Tribunal.

Michael Bowsher QC of Monckton Chambers and Adam Aldred of Addleshaw Goddard appeared and continue to appear for the claimant.

Campaigners seeking a judicial review against the closure of six libraries in north-west London lost their bid in the High Court yesterday.  They argued that Brent Council’s approach to assessing the need for library services and alternative proposals by community groups was in breach of the duty to provide a comprehensive and efficient library service under section 7 of the Public Libraries and Museums Act 1964, that the Council had failed to comply with the public sector equality duties under s. 149 of the Equality Act 2010, and that the consultation process had been inadequate.

The consultation was said to have been unfair because the Council had not provided sufficient information to enable consultees to make submissions as to which libraries should be retained if closures were necessary, and had failed to provide sufficient information to those who wished to advance community-based solutions to keeping libraries open, or the basis on which such alternative proposals would be appraised.

Ouseley J. granted permission to apply for judicial review but dismissed the claims, holding that the Council had discharged the statutory duties under the 1964 Act and the 2010 Act and that there had been “a very extensive consultation programme”.  The Judge refused permission to appeal or an interim stay to prevent the libraries being closed pending the outcome of any appeal by campaigners.  This is the first of a number of claims challenging library closures.  Judgment is also expected shortly in a similar case against Gloucestershire County Council.

Piers Gardner has today been featured in the Times’ Lawyer of the Week.  Piers recently acted for Yukos, the oil company, in the European Court of Human Rights, in a $98bn claim for compensation – the largest commercial dispute ever litigated.

The Court of Appeal has dismissed the appeal of ICO Satellite Limited against a judgment of the Administrative Court refusing a claim for judicial review of Ofcom’s decision to write to the International Telecommunications Union (ITU) to request the cancellation of the spectrum and orbital assignments registered in its Master International Frequency Register.  This is the first occasion on which the Court of Appeal has had the opportunity to consider Ofcom’s  Procedures for the Management of Satellite Filings.  The Court of Appeal rejected the argument that Ofcom was required to take account of the impact or lack of impact of the decision on third parties or that the decision was not proportionate.  It also concluded that Ofcom did not base its decision on an incorrect view of what the ITU regime required or that certain statements of ITU officials could be treated as authoritative of the institutional position of the ITU.

Christopher Vajda QC and Ben Rayment were instructed by Ofcom.

Members of Monckton Chambers have  significant experience in the area of communications regulation generally as well as in advising on and litigating the potentially complex regulatory disputes that can arise in the context of satellite filings.

Congratulations go to Jon Turner QC who has been nominated for the 2011 Sydney Elland Goldsmith Bar Pro Bono Award.

The winner will be anounced at the Bar Conference, Saturday 5 November by Lord Goldsmith.

The Bar Pro Bono Unit is a charity which helps to find pro bono (free) legal assistance from volunteer barristers who assist with advice, representation and help at mediation in cases in all tribunals and courts in England and Wales.

Following the European Court of Justice hearing in July of this year, Advocate General Kokott has delivered her Opinion in which she rejects a challenge brought by United, Continental and American airlines, and their trade association the Air Transport Association of America (ATA), to the lawfulness of including international aviation in the EU emissions trading scheme.  She agrees with the six Member States including the UK, the three European institutions, and an international coalition of environmental organisations, that the Directive which extends the scheme to international aviation does not breach public international law.

Advocate General Kokott rejects the claim that the Directive contravened the Chicago Convention, the Kyoto Protocol and the ‘Open Skies Agreement’  between the EU and the US.  Similarly, Kokott’s Opinion rejects the claim that the Directive contravened customary international law principles, including the principle of the sovereignty of States over their own air space, as she considered that if flights are bound to or depart from an airport within the territory of the European Union there is an adequate territorial link for the EU to exercise jurisdiction and to include the whole of the flight in question in the EU emissions trading scheme.

A final judgment of the Court will follow at a later date.

The coalition of environmental groups were represented by Jon Turner QC and Laura Elizabeth John.

Eric Metcalfe joins Monckton Chambers from JUSTICE, one of the leading organisations on law reform and human rights where he was the director of human rights policy.

During this time Eric was involved in many key cases concerning national security in the UK, including Ahmed and others v HM Treasury (asset freezing by way of Order in Council), A and others (No 2) (admissibility of torture evidence), MB v Secretary of State for the Home Department (use of secret evidence in control order appeals), and Corner House v Serious Fraud Office (halting of the BAE fraud investigation on national security grounds). Eric has substantial expertise in constitutional law; immigration; data protection and privacy; equality and non-discrimination; freedom of information and judicial review having been involved in many of the leading cases in these fields over the last decade. These include 17 cases before the House of Lords, 7 before the UK Supreme Court, and 7 before the Grand Chamber of the European Court of Human Rights.

Having worked both as a government lawyer and as policy director for a leading human rights organisation, Eric is well-placed to advise both public and private bodies on a wide range of public law and human rights issues.

Eric’s arrival reinforces our reputation as one of the leading sets in the fields of public law and human rights law. The past decade has seen an enormous growth in human rights litigation, both in our domestic courts and in other European courts, as well as before the Court of First Instance, European Court of Justice, European Court of Human Rights and international tribunals. Eric joins members of Monckton Chambers who have been at the heart of this expansion.

Eric comments:

“I am extremely pleased to be joining Monckton Chambers. With the EU about to accede to the

European Convention on Human Rights, and with the growing importance of the EU Charter in its own right, Monckton is the ideal place for me to develop my practice in public law, human rights and EU law.”

David Hockney, Senior Clerk:

“I am delighted that Eric has accepted our offer of tenancy. His very considerable experience and profile as Policy Director of Justice will further strengthen our collective expertise within our EU and Public Law group and provide genuine value added to the whole range of our clients.”

Paul Lasok QC, Head of Chambers:

“Eric’s recruitment strengthens an already strong position that Monckton Chambers has in the areas of public law, EU law and human rights, to the benefit of our clients.”

On 19 October, Eric Metcalfe will chair the Judicial Review session of the 13th annual Human Rights Law Conference, organised jointly between Sweet & Maxwell and JUSTICE. The conference’s afternoon keynote speaker will be Lord Judge, the Lord Chief Justice of England and Wales.

The European Court of Human Rights has given judgment on the merits of the largest commercial dispute ever litigated.

Yukos Oil Company, formerly the largest and most successful Russian oil company, challenged the imposition and enforcement of additional tax liabilities for four years (2000-3) together with fines and penalty interest amounting to €19.6Bn. The Russian authorities took draconian enforcement measures, which involved freezing all the company’s assets as soon as the first assessment was made, sweeping its bank accounts, forbidding the company to use its assets to meet the tax liabilities and imposing fines for the resulting non-payment. As a result, Yukos was paralysed and its crown jewel asset, YNG which produced as much oil as Libya, was sold at an auction at which only one participant bid, at a price fixed not by reference to YNG’s value, but merely to a part of the Yukos tax liabilities which were outstanding. Yukos was declared bankrupt, its assets were sold, largely to the State controlled oil company Rosneft, and Yukos was dissolved in October 2007, without any dividend to its 50000 shareholders.

The European Court held that the Russian tax proceedings were unfair in breach of Article 6 and the retrospective reinterpretation of Russian law to ‘justify’ the imposition of fines and penalty interest was unlawful, contrary to the Convention standard.

Although the interpretation of the tax liabilities which were applied to Yukos was foreseeable, the Court held that the crux of the case was the rapid and inflexible enforcement of those liabilities. Yukos had been effectively paralysed because all its assets were frozen from the first assessment. In the Court’s view, two factors in particular contributed to Yukos’ demise and showed that the Russian authorities had failed to strike a fair balance and violated Article 1 of Protocol No 1:

1. the bailiff’s choice of Yukos’ principal subsidiary as the first target for auction, without considering the implications for the company’s future: this dealt Yukos a ‘fatal blow’;

2. the Russian authorities were unyielding and inflexible in response to requests for time to pay and the bailiffs imposed additional fines amounting to €1.15 Bn, which had to be paid before the taxes, but the payment of which was prohibited under the freezing orders.

The issue of just satisfaction under Article 41 ECHR was reserved to further pleading.

Yukos was represented throughout the proceedings by Piers Gardner.

 

The 2011 Chambers Bar Awards shortlist has been announced.  Monckton Chambers has once again been nominated for ‘Set of the Year’ for Competition/EU after winning the award last year.

Additionally, we are pleased to announce Daniel Beard QC has been nominated for ‘Silk of the Year’ along with Josh Holmes for ‘Junior of the Year’, both for Competition/EU.

The results will be announced at The London Hilton on Park Lane on Thursday, 27 October.