Monckton Chambers is pleased to announce that Frank Mitchell has accepted tenancy with immediate effect.

Frank has over ten year’s experience in tax litigation with a particular focus on VAT. He worked in the VAT department of  PwC for eight years and was a Senior Manager in their London-based tax litigation department for three of these.

Frank has advised and litigated extensively on various aspects of VAT. He is a Council Member of the Irish Taxation Institute, Chair of the Institute’s Indirect Tax Committee and editor of ‘VAT & Property’ – the leading text on VAT & Property in Ireland.

Frank said, “Having previously worked in London in VAT litigation for several years I am very excited to be coming back to work here and I am proud to have the opportunity to do so as a member of Monckton Chambers.”

Paul Lasok QC, Head of Chambers said, “I am delighted Frank has chosen to join Monckton Chambers. His presence will undoubtedly add further strength to our growing reputation in the field of VAT”.

David Hockney, Senior Clerk, commented, “The addition of Frank Mitchell to our indirect tax practice is a tremendous boost. He is a respected tax practitioner with considerable expertise in contentious tax litigation. His experience working at PwC provides new perspective for our group and further enhances our growing reputation as a “go to” set for indirect tax litigation.”

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Frank Mitchell

The European Convention on Human Rights was signed in Rome sixty years ago. Its signature, and the role played in its drafting by prominent British lawyers, including Sir David Maxwell-Fyfe, the rapporteur to the drafting of the Convention, is to be marked by a dinner at Gray’s Inn on Friday 19 November.

The European Court of Human Rights has dedicated a new part of its website to marking the sixtieth anniversary of the Convention (see http://human-rights-convention.org/). Amongst the dozen ‘Landmark cases’ identified by the Court are two, Soering v UK and Krenz and others v Germany,  in which Piers Gardner of Monckton Chambers appeared for the applicants. Members of Monckton Chambers have been instructed (for applicants, whether individuals or States, or the Respondent Governments) in 26 cases currently before the European Court of Human Rights including Georgia v Russia, Nada v Switzerland, Uzan v Turkey, Yukos Oil Company v Russia, Gontmakher v Russia, Rywin v Poland, Habibi v UK, Hode & Abdi v UK and JM v UK.

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Robert Palmer
Piers Gardner
Jeremy McBride
Drew Holiner

Greenpeace has filed a claim at the Royal Courts of Justice, applying for permission to seek judicial review of the UK’s ongoing consideration of license applications for the exploitation of North Sea oil reserves located in deep water, in the wake of the BP Deepwater Horizon disaster in the Gulf of Mexico. They are to seek court orders effectively preventing the issuing of new licenses which relate to areas close to environmentally-sensitive sites and which support whales, dolphins and other legally protected species, until the investigation into the causes of the Deepwater Horizon explosion are known.

If successful, Greenpeace’s action will affect over 20 oil production licenses and could delay future licensing rounds.

Robert Palmer and Laura Elizabeth John are representing Greenpeace.

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Robert Palmer
Laura Elizabeth John

BT and TalkTalk have been granted permission to apply for judicial review of the online copyright infringement provisions of the Digital Economy Act 2010.

The Act is intended to reduce illegal file-sharing. Once a code is made by Ofcom under the Act, copyright owners will be able report illegal file-sharing activity to ISPs, who must then notify the subscriber that they risk further action being taken against them. Ultimate sanctions might include a subscriber’s broadband connection being suspended, if a code made by Ofcom so allows.

BT and TalkTalk claim that the Act is unenforceable, arguing it ought to have been notified in draft to the European Commission under the Technical Standards Directive before being enacted by Parliament. They also argue that it is inconsistent with the e-Commerce Directive, which limits ISPs’ liability for traffic on their network and prohibits the imposition of a general obligation to monitor information transmitted or stored by ISPs. They also claim that it breaches the Privacy and Electronic Communications Directive on data protection grounds. The Secretary of State denies each of those claims.

The substantive hearing of the judicial review application is likely to be conducted in February 2011.

Robert Palmer is instructed on behalf of the Secretary of State for Business, Innovation and Skills (“BIS”)

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Robert Palmer

On Friday, Mr Justice Vos dismissed an urgent application by ALSTOM Transport for an interim injunction preventing Eurostar International Limited from entering into a contract with Siemens plc for the provision of 10 new trains.  The trains were the subject of a procurement commenced in 2009 and are required to enhance the business’s customer offering, open up the possibility of new, direct services beyond Eurostar’s existing destinations and position the business to compete in an open-access world of on-rail competition through the Channel Tunnel.

ALSTOM’s challenge, alleging breaches of the Utilities Contracts Regulations 2006, and/or general EU Treaty principles of equal treatment, transparency, proportionality and good administration and/or an implied tender contract relied essentially on two main grounds.  First, at the time the tender was taking place, the safety authorities responsible for the Channel Tunnel were  considering whether to change the applicable safety rules to permit so-called “distributed power”  trains (such as those submitted by both Alstom and Siemens during the bid process) to operate in the Tunnel.   Alstom claimed that uncertainty as to the relevant safety rules meant that the tender process was insufficiently certain to enable bidders to prepare their tenders or for Eurostar to evaluate which was the most economically advantageous to it.  Second, ALSTOM alleged that Eurostar did not properly inform bidders about the criteria, weightings and evaluation methodology that it intended to use to assess bids.

Although Mr Justice Vos determined that there was some merit in Alstom’s case and that damages would not provide ALSTOM with an adequate remedy, he also noted that Alstom’s case was not strong and did not grant the interim injunction that was sought.

Mr Justice Vos did not consider that Eurostar could be adequately compensated in damages, given that it needed to be able to compete with new operators and that any further delay in procuring new trains could affect its business model.  Further, in applying the balance of convenience, he considered that ALSTOM was unlikely to obtain an order setting aside Eurostar’s decision at trial and that the public interest militated in favour of refusing interim relief.  The delay to Eurostar would be costly and affect its competitive position;  and the travelling public would be affected by having new trains delayed.  The public interest would be served by the introduction of timely and effective competition for Tunnel train services and preventing Eurostar from commissioning its new fleet as quickly as the regulatory procedures would allow would damage that competition.

Permission to appeal was refused.

Michael Bowsher QC and Ewan West (instructed by Burges Salmon LLP) appeared on behalf of Eurostar.

Rob Williams (instructed by Freshfields Bruckhaus Deringer) appeared on behalf of Siemens.

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Michael Bowsher QC
Rob Williams
Ewan West

The case of Nada v Switzerland is set to be heard in the Grand Chamber of the European Court of Human Rights.  The case involves a challenge to the implementation of UN sanctions on persons supposedly connected in someway to Al-Qaeda. The challenge is being made because of the passage of nearly seven years without providing either any specific allegations or any form of hearing in which they could be challenged, with the result that the applicant, Youssef Moustafa Nada, an Italian national was confined to a territory of 1.7 sq km and suffered serious interferences with his private and family life, as well as significant damage to his reputation.

Nada was placed on the list of the United Nations Committee along with a number of organisations associated with him. On 30 November 2001 those names were added by the Swiss authorities to the list of people concerned by the anti-Taliban order.

The order provided for the freezing of assets and financial resources of those concerned, and prohibited the provision to them of funds or financial resources. It further restricted their entry into or transit through Switzerland.  Mr Nada requested the deletion from the list of his name and those of the organisations associated with him as the Swiss investigation against him had been discontinued.  His request and subsequent administrative appeals were rejected.  Mr Nada was de-listed without any explanation or hearing in September 2009

Jeremy McBride is representing the applicant Youssef Moustafa Nada.

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Jeremy McBride

Yesterday in Zurich FIFA imposed a provisional suspension upon Dr. Amos Adamu, the Nigerian member of the FIFA Executive Committee, whilst it conducts further investigations into the allegations made recently in The Sunday Times that Dr. Adamu and other members had offered to commit their votes in the forthcoming World Cup contest in return for support for football projects in their home countries.

Dr. Adamu is represented by Paul Harris

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Paul Harris QC

Paul Harris acted for the Chairman of Liverpool FC, Martin Broughton, and his co-directors Christian Purslow and Ian Ayre during last weeks rapidly unfolding events which culminated, at the eleventh hour, in the sale of LFC to the Boston Red Sox owner, J W Henry.

In frantic High Court and Texas District Court action, two interim and one anti-suit injunctions were obtained and one (in Texas) was discharged. This litigation strategy successfully forced the former owners, Messrs. Hicks and Gillett, to withdraw their attempts to undermine the sale.

Watch this space, because the former owners have promised further litigation for $1bn in damages…

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Paul Harris QC

Monckton members Gerry Facenna and Laura Elizabeth John have been acknowledged in the National Council for Voluntary Organisations Freedom of Information (“FOI”) guidance.

Both Gerry and Laura have aided the Campaign for Clean Air in London (“CCAL”) over the last two years, representing the campaign at the Information Tribunal and providing legal advice on a pro bono basis.

 

The High Court today ruled in favour of the Royal Bank of Scotland (“RBS”) in a case concerning the composition of the Boards of the two holding companies of Liverpool F.C. (“LFC”) following actions taken last week by LFC’s ultimate owners Tom Hicks and George Gillett (“the Owners”).  In particular, the Owners had purported to remove Mr Purslow and Mr Ayre, the Managing and Commercial Directors respectively of LFC from the Boards, in the context of a dispute concerning the decision to sell LFC.

The Owners were found to be in breach of an agreement with RBS that permitted Mr. Broughton, the Chairman of LFC, to lead the sale process and to make decisions as to the composition of the Boards.

Mr Justice Floyd imposed a mandatory injunction on the Owners ordering them to reverse the steps that they had taken to alter the composition of the Boards. The Judge refused permission to appeal and an expedited trial of this and related actions was ordered for Thursday 21 October.

Paul Harris represents the Chairman and Directors of LFC.

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Paul Harris QC