The High Court has granted Sita leave to appeal to the Court of Appeal following their case against Greater Manchester Waste Disposal Authority (GMWDA) in which GMWDA were successful in striking-out Sita’s claim on the grounds that it brought was out of time.

The case arises out of the tendering process for a PFI project to provide waste disposal facilities for Greater Manchester.  The project, the largest of its kind to have been awarded in the UK, attracted a number of tenders, which were eventually reduced to two.  GMWDA selected Viridor Laing ahead of Sita.  The final contracts between GMWDA and Viridor Laing were delayed due to changes in the specification an due the credit crunch, but were finally agreed upon.  Sita argued that following this interruption, it should have been allowed, under statutory procedures to return to the tender process.  Sita also argued that GMWDA’s decision to select the most economic tender was flawed as Viridor, unlike Sita, was offered an opportunity to amend their bid.

GMWDA sought to strike out Sita’s case as the proceedings had been commenced outside the limitation period.

Sita have been awarded leave to appeal.

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Michael Bowsher QC
Philip Woolfe

Monckton barristers Peter Mantle and Philip Woolfe acted for HMRC in their successful defence of the first group litigation in VAT to reach trial.  This should end a group of claims valued at around £136 million. The Court of Appeal upheld HMRC’s arguments that the test claims should be dismissed in their entirety. Further, the court accepted submissions on behalf of HMRC that, although unnecessary to decide this appeal, the question of whether Community law requires compound interest to be paid in respect of overpaid VAT was important and difficult enough that a reference should be made to the Court of Justice of the European Union when a proper opportunity arises. The claimants have not sought permission to appeal.

This appeal determined the test claims in “VAT Interest Cars” Group Litigation. They concerned HMRC’s alleged liability to pay compound  interest on overpayments of VAT levied in breach of Community law from motor vehicle dealers in connection with “manufacturers’ bonuses” and the second-hand car margin scheme.  HMRC had already repaid the principal amount of the overpaid VAT together with simple interest.  The issue in these proceedings was whether the claimants were entitled to compound interest, rather than just simple interest, on the overpayments, first, as a matter of principle as a Community law right, and, second, in the light of the lapse of time since payment of the overpaid amounts. At first instance, the Claimants succeeded in persuading Henderson J. that Community law required the payment of compound interest in such circumstances. However, HMRC defeated the claims by successfully arguing that the claims were time-barred, and that the application of the limitation defences did not contravene Community law.

On appeal, the Court of Appeal upheld HMRC’s case on time-limits. In particular they rejected the Claimants’ arguments that Community law required the Limitation Act 1980 time limits to be disapplied or extended. The Court of Appeal was also persuaded by HMRC’s submissions that the question of compound interest was not clear as a matter of Community law, taking a more favourable view than the judge below, and considering a reference desirable..

Peter Mantle and Philip Woolfe represented the respondents, HMRC, alongside Jonathan Swift QC, First Treasury Counsel

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Peter Mantle
Philip Woolfe

The Court of Appeal has granted the Competition Commission permission to appeal against the Competition Appeal Tribunal’s findings that the participation in the market investigation into BAA’s supply of airport services in the UK of one member of the inquiry panel gave rise to apparent bias.

Ben Rayment is Junior Counsel to the Commission.

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Ben Rayment

The Court of Appeal has allowed an appeal by importers of sea fish and sea fish products into the UK against a levy imposed on their importations.  The Court held that the Sea Fish Industry Authority (Levy) Regulations 1995 were ultra vires the Fisheries Act 1981 in so far as they imposed a levy on sea fish and sea fish products which were landed outside the UK and then imported into the UK.  In addition, the Court held that the levy was contrary  to the Treaty on the Functioning of the European Union as a charge having effect equivalent to a customs duty, in breach of Articles 28 and 30.

Valentina Sloane was junior Counsel for the Appellants.

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Valentina Sloane

Monckton Chambers is pleased to announce that Nicholas Paines QC has been appointed a Deputy High Court Judge.

This appointment will enable Nicholas to sit in the Administrative Court as well as the Upper Tier of the Tax and Social Security Tribunals.

Nicholas Paines QC was called to the Bar by Gray’s Inn in 1978 and took Silk in 1997.  He is a member of the Bar of Northern Ireland and sits as a Recorder in the Crown Court and as a Deputy Judge of the Upper Tribunal.

Members and staff warmly congratulate Nicholas on this prestigious appointment.

 

Piers Gardner of Monckton Chambers represented Yukos Oil Company in the hearing on the merits of its application  to the European Court of Human Rights held in Strasbourg on 4 March 2010.  The Application concerns the lawfulness under the European Convention on Human Rights of the additional taxation of Yukos in Russia and the enforcement of the resulting liabilities of over €19.6Bn  and of the freezing of all Yukos’ assets, leading to its bankruptcy.  The enforcement involved the seizure and auction sale of Yuganskneftegaz, Yukos’ largest production subsidiary, which produced as much oil annually as Libya.  Yukos’ claim to just satisfaction exceeds $98 Bn, the largest claim by value before any court or tribunal.

The hearing can be viewed in the RSS feed from the website of the European Court of Human Rights.  Alternatively, please click here.

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Piers Gardner

Monckton Chambers warmly congratulates Andrew Macnab who has been elevated to the Attorney General’s A Panel of Treasury Counsel, along with Gerry Facenna and Anneli Howard, who have both been elevated to the B panel.  These elevations continue to illustrate our expertise in VAT/indirect tax litigation and water regulation, public, civil and European Community law litigation.  Chambers has a total of 19 panellists.

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Andrew Macnab
Gerry Facenna
Anneli Howard

The case concerned complaint referrals brought by the Competition Commission against Pioneer Foods (Pty) Ltd, in which Pioneer’s bread baking divisions, Sasko and Duens, are alleged to have formed part of bread manufacturers’ cartels that fixed prices and divided markets under sections 4(1)(b)(i) and (ii) of the Competition Act.

Tiger Brands and Foodcorp, the other colluding parties agreed to a penalty and to the implementation of compliance programmes in their organisations.

The tribunal handed the Pioneer Foods (Pty) Ltd the maximum penalty due to a lack of co-operation with the agencies and the fact that to date it has not taken disciplinary action against, at date of hearing, a single person involved in these contraventions.

The total penalty imposed on Pioneer Foods (Pty) Ltd in respect of these complaints is 195 million rand.

David Unterhalter SC appeared for the Competition Commission

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David Unterhalter SC

The Court of Appeal today dismissed an appeal by TV shopping channel JML Direct relating to the allocation of Electronic Programme Guide (EPG) numbers by Freesat, a multi-channel TV service owned jointly by the BBC and ITV.  The ruling has implications for the interpretation of regulatory codes.

JML had appealed the earlier judgment of Mr Justice Blackburne’s, in which he found that Freesat had not breached its contract with JML when allocating EPG numbers prior to its launch in May 2008.  (An EPG is an on screen television programme guide used by digital TV systems.)

The Court of Appeal considered three questions:

(1) whether Freesat had failed to “publish and comply with an objectively justifiable method of allocating listings”, as required by the Ofcom Code of Practice (with which Freesat was bound to comply by the terms of its contract);

(2) whether the requirement in Freesat’s EPG Listing Policy (with which it was also bound to comply) for it to “take into account” a number of specified matters when allocating EPG numbers permitted it to attach no weight to one or more of those factors if it had rational grounds for doing so;

(3) whether the Judge’s finding that one of the reasons relied on by Freesat for its allocation was irrational meant that Freesat’s entire decision was invalid and in breach of contract.

The Court rejected JML’s arguments on each of these questions and dismissed its appeal.

Tim Ward and Ben Lask were instructed by the BBC on behalf of Freesat.

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Tim Ward QC
Ben Lask

The 2010 edition of Bellamy and Child: Materials on European Community Law of Competition, edited by Andrew Macnab of Monckton Chambers, was published by Oxford University Press on 28 January 2010.

This volume of EC competition law materials serves both as the Materials volume of the Sixth Edition of Bellamy & Child: European Community Law of Competition, and as a free-standing work of reference in its own right. It includes legislation, notices and guidelines relevant to all areas of EC competition law (including Treaty provisions, modernisation and procedural matters, substantive antitrust matters, mergers and concentrations, sectoral regimes, public undertakings and State aids). It provides a one-stop resource for competition and antitrust practitioners worldwide.

This book is ideally suited to practitioners dealing with competition (antitrust), business and EC law; competition and trade authorities; practitioners and regulators in key sectors such as telecommunications, financial services, intellectual property and transport; academics and students specialising in competition (antitrust), business and EC law; reference libraries; in each case, throughout Europe and worldwide.

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Andrew Macnab