A panel of Supreme Court Judges has refused BAA Limited permission to appeal to the Supreme Court  against the judgment of the Court of Appeal.  The effect of the Court of Appeal’s judgment  was to reinstate the report of the Competition Commission, which required the sale by BAA of Gatwick airport, Stansted airport and one of Glasgow or Edinburgh airports.  The Court of Appeal’s judgment overturned the effect of an earlier decision of the Competition Appeal Tribunal which had set aside the report on the basis that apparent bias arose in relation to the position of one of the members of the Commission appointed to investigate and report on the supply of airport services in the United Kingdom.

Ben Rayment was junior counsel to the Commission.

To read our case note, please click here.

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Judgment was delivered in the High Court in Halo Trust v The Secretary of State for International Development.

The case concerns the procurement of services for mine clearance and development work in Cambodia.  The Department of International Development (DFID) had been funding the claimant, the Halo Trust, and the successful tenderer, Mines Advisory Group (MAG) through an “Accountable Grant” mechanism. DFID decided to put the funding on a contractual basis and run a framework competition, with one supplier selected for each country supported under a mini-competition.  The mini-competition for Cambodia was won by MAG, and the Halo Trust challenged.

This judgment is another application of whether a body should be restrained by the operation of Regulation 47H of the Public Contracts Regulations 2006. Regulation 47H restrained DFID from placing a contract with MAG once proceedings had been issued.

It was decided in this case the suspensory effect of regulation 47H should be brought to an end, and DFID should be permitted to enter into a contract with MAG.

This case is the third in which a contracting authority sought to have the “suspensory effect” of proceedings lifted, following  Indigo v Colchester Institute, and Exel v University Hospitals.  In each case the contracting authority was successful.  In each case members of Monckton Chambers appeared for the contracting authority.

Jennifer Skilbeck acted for the successful Secretary of State for International Development

To read our case note, please click here.

On 26 January 2011, the Court of Appeal handed down judgment in the case of X v Mid Sussex Citizens Advice Bureau and others [2011] EWCA Civ 28.  The case concerned a volunteer worker at a Citizens Advice Bureau who alleged that she had been discriminated against on the grounds of her disability.  The relevant domestic law (at the time, the Disability Discrimination Act 1995) did not apply to volunteers in the situation of X, who was providing services on a non-contractual basis and without remuneration.  However, it was argued for X that she was protected by the provisions of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (“the Framework Directive”).  It was argued that the domestic law did not correctly implement the provisions of European law in this respect.

The Court recognised that “the case raises an issue of some importance and interest to the voluntary sector”, and submissions were heard from the Equality and Human Rights Commission and the Secretary of State for the Home Department, who holds responsibility for the relevant domestic legislation, as well as from the parties.

The Court of Appeal dismissed X’s appeal.  The Court held that the Framework Directive did not apply to volunteers in the position of X.  It rejected X’s argument that her work for the CAB was an “occupation” for the purposes of the Framework Directive.  The Court held that the Directive was plainly limited in its field of operation and that it was inconceivable that the draftsman of the Directive would not have dealt specifically with the position of volunteers if the intention had been to include them.  The Court also referred to and relied upon the legislative history of the Directive.  The Court refused to make a reference to the Court of Justice of the European Union.

Kassie Smith acted for the Secretary of State.

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Kassie Smith QC

Physiotherapist Stephen Brennan has today (21 January) won his appeal against the decision of the Health Professions Council (“HPC”) to strike his name from the register of physiotherapists after his involvement in what has become known as the “bloodgate” scandal. Mr Brennan admitted a total of five instances of being involved in faking blood injuries by providing rugby players with fake blood capsules to gain an unfair sporting advantage.

In September 2010 the HPC decided that Mr Brennan was unfit to practice and his name was struck off. Paul Harris, counsel to Mr Brennan, said that Mr Brennan would face sanctions for his actions, but that the “one strike and you’re out for good” approach was of “gross severity” and was disproportionate. Today, at the High Court Mr Justice Ouseley quashed the decision against Mr Brennan and ordered the HPC to reconsider the case.

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Paul Harris QC

Monckton Chambers has been featured on 4 occasions in The Lawyer’s Top 20 Cases of 2011. All four entries appear in the top 10, they are:

1.British Sky Broadcasting (BSkyB) & Others v OFCOM & Others

Featuring:

• Meredith Pickford for BSkyB
• Josh Holmes and Ben Lask OFCOM
• Paul Harris and Fiona Banks for the FA
• Tim Ward for Freesat UK Ltd &
• Daniel Beard Top Up TV Europe

2. Morrisons; (2) Imperial Tobacco; (3) Cooperative Group; (4) Safeway; (5) Asda; &
(6) Shell v Office of Fair Trading (OFT)

Featuring:

• Meredith Pickford for wm Morrison Supermarkets, Safeway Stores & Safeway Ltd
• Paul Lasok QC, Elisa Holmes, Rob Williams, Anneliese Blackwood and Ligia Osepciu for the OFT

3. Alstom Transport v Eurostar International & Siemens

Featuring:

• Michael Bowsher QC and Ewan West for Eurostar
• Rob Williams for Siemens

4. Imperial Tobacco, British American Tobacco, Philip Morris Ltd and Gallaher Ltd v Secretary of State for Health and the Attorney-General

Featuring:

• Ian Rogers will appear for the Department for Work and Pensions

Monckton Chambers is pleased to reveal that Meredith Pickford has been listed as an outstanding litigator in The Lawyer’s Hot 100 2011 published today. Meredith is the only junior barrister to be included in this year’s list

“Meredith Pickford has built himself a reputation for being the go-to junior for telecommunications related competition cases […] As a trained economist, Pickford is praised by senior silks for his ability to apply statistical thinking to the cases he fights so fervently for clients.” “Pickford possess an impressive list of blue-chip clients … keeping his diary packed with instructions. As a trained economist, Pickford is praised by senior silks for his ability to apply statistical thinking to the cases he fights so fervently for clients.”

The annual supplement identifies members of the legal profession who have excelled in their chosen fields during the past year.

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Meredith Pickford

The High Court has today delivered judgment in only the second case to date dealing with the approach to procurements which are automatically suspended upon the issue of proceedings challenging the procurement exercise under the new Remedies Regime.  The High Court has confirmed that despite the introduction of the new regime the appropriate approach on such applications that should be adopted by Courts in England and Wales is that laid out by the House of Lords in American Cyanamid v Ethicon.  The judgment also contains a number of interesting observations on the adequacy of damages in such applications.

Michael Bowsher QC and Ben Rayment appeared on behalf of the Contracting Authority that was successful in obtaining the lifting of the automatic suspension.

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Michael Bowsher QC
Ben Rayment

The Administrative Court (Mitting J.) has rejected a challenge by Thames Water Utilities Limited (TWUL) to Ofwat’s decision to grant the application of Independent Water Networks Limited (IWNL) to be appointed as the water and sewerage undertaker for a re-development site at King’s Cross.

Under the Water Industry Act 1991, an incumbent supplier may be replaced in part of its area of appointment by a new supplier if certain eligibility (or “inset”) criteria are met.  IWNL’s application was the first time Ofwat had considered the applicability of the “unserved” and “large user” eligibility criteria in respect of a large “brownfield” site.

In relation to the “unserved” criterion, the main issue was whether or not the proposed inset area could be treated as unserved notwithstanding the fact that it had been supplied by a TWUL distribution main still present on the site.  The Court found that, although a temporary disconnection of supply could not suffice, depending on the circumstances the demolition and disconnection of premises could render a site unserved.

In order to satisfy the “large user” criterion, it is necessary that “premises” receive or are likely to receive a supply of water of at least 50 megalitres in any period of 12 months, and that the customer in relation to the premises consents to the appointment.  The issue in the present case was whether Ofwat had been correct to conclude that the developer could be treated as the customer in relation to the premises (defined as the site).

TWUL argued that Ofwat was not entitled to aggregate demand from future customers from individual premises on the site in order to fulfil the large user criterion.  However, the Court found that the developer could be treated as the customer in relation to the premises as Ofwat had defined them with the result that the future aggregate demand of the site could be used to satisfy the volume threshold.

The Administrative Court granted permission to TWUL to appeal to the Court of Appeal on both issues.

Kassie Smith appeared (with Michael Fordham QC of Blackstone Chambers) for Thames Water Utilities Limited.

Ben Rayment appeared for Independent Water Networks Limited.

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Kassie Smith QC
Ben Rayment

Judgment was delivered today, 1 December 2010, in the High Court (QBD) in Indigo -v- Colchester Institute, the first application by a contracting authority under Regulation 47H of the Public Contracts Regulations (as amended) to lift an automatic suspension of entry into a contract pursuant to Regulation 47G. The judge gave abbreviated reasons; full judgment to be available tomorrow.

The headline point is that pursuant to Regulation 47H(2)(a) the Court treated the application as though it were an application for an injunction by the disappointed tenderer and applied the American Cyanamid test. Based on the balance of convenience, the suspension was lifted.

Philip Moser of Monckton Chambers (instructed by Mills & Reeve, Cambridge) acted for the successful contracting authority.

A full version of the judgment is available here Indigo v Colchester Judgment

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Philip Moser QC

R(Sinclair Collis Ltd) v Secretary of State for Health (NACMO intervening)

Administrative Court (Sir Anthony May, President of the Queen’s Bench Division)

The Administrative Court today handed down judgment dismissing judicial review challenges to primary and secondary legislation which bans the sale of tobacco from vending machines from 1 October 2011. The claim was brought by a subsidiary of Imperial Tobacco Ltd and was supported by the members of the National Association of Cigarette Machine Operators.

The Judge rejected the claim that certain provisions of the Health Act 2009 and the Protection from Tobacco (Sales from Vending Machines) Regulations 2010 contravened the free movement of goods provisions of EU law (Articles 34 and 36 TFEU) and the right to peaceful enjoyment of possessions (Article 1 Protocol 1 of the ECHR). The judgment contains a valuable discussion of the principles of proportionality and the margin of discretion. The Judge refused permission to appeal.

Nicholas Paines QC and Ian Rogers appeared for the Secretary of State for Health.

Nicholas Paines QC and Ian Rogers also act for the Secretary of State in judicial review claims brought by Imperial Tobacco, BAT, Philip Morris and Gallaher challenging legislation which will make it an offence, subject to certain exclusions and defences, to display tobacco products in shops. The hearing of those claims begins on 11 April 2010.

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Ian Rogers