Competition

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Competition

Fountain Court Chambers is one of the leading commercial sets of chambers in England and Wales. Members of chambers advise and represent clients in business transactions and commercial disputes of all kinds and at all levels. They specialise in a number of practice areas including (but not limited to) aviation, administrative and public law, banking and finance, civil fraud and employment. As a direct result of this expertise, a number of members are regularly called upon to advice on related issues of competition arising out of European and worldwide business transactions and disputes.

Fountain Court’s competition expertise is substantially enhanced by the inclusion of Sir Francis Jacobs QC who was Advocate General at the Court of Justice of the European Communities between 1988 and 2006. Before that appointment, Sir Francis combined an academic career with his practice at Fountain Court Chambers, specialising in European Law. He appeared in many prominent cases in the English courts and in the European Court of Justice, where he represented individuals, corporations, Governments (especially the United Kingdom) and all the European Institutions (European Parliament, Council and Commission). He also appeared in leading cases before the European Commission and Court of Human Rights. Recently, since returning to the UK and resuming his practice at Fountain Court, he has been advising on European and International law, including aspects of EU law and the European Convention on Human Rights.
 
Marcus Smith QC is one of the Chairman at the Competition Appeal Tribunal, which hears appeals against competition law decisions of the OFT, sector regulators and the Competition Commission, as well as section 47A “follow-on” damages claims. As Chairman, he has presided over a number of competition and communications appeals.
 
Further recent matters in which Fountain Court members have acted include:
  • Providing expert opinion evidence on EC competition law issues on behalf of two major European airlines for the purposes of ICC arbitrations against a Computerised Reservation System operator (Sir Francis Jacobs QC and Alexander Milner);
  • Advising a major financial services company on the compatibility of the proposed SEPA credit cards framework with Articles 81 and 82 of the EC Treaty (Sir Francis Jacobs QC and Alexander Milner);
  • Advising a Czech bank as to whether a restructuring plan adopted by the Czech state constituted aid applicable after accession requiring review by the Commission under Article 88 of the EC Treaty (Sir Francis Jacobs QC and Alexander Milner);
  • Advising a number of law firms as to the compatibility of the rules of an EC Member State’s Bar Association with the EC Treaty (Sir Francis Jacobs QC and Alexander Milner);
  • Providing expert evidence on competition law on behalf of a US corporation in proceedings before the Japan Fair Trade Commission (Sir Francis Jacobs QC and Alexander Milner)
  • Recently instructed in relation to the European Commission’s proposals to regulate the cost of international mobile roaming services (Sir Francis Jacobs QC and David Murray).
  • Successfully acted for defendant directors and employees. On assumed facts, Safeway had been fined by the OFT under Chapter 1 of the 1998 Act (section 2(1); section 36) for having entered into illegal horizontal and vertical agreements with supermarkets and dairies whereby the retail price of milk was raised on a concerted basis. Safeway sought to pass on that fine to its employees. The case was struck out in the Court of Appeal as being inconsistent with the competition policy under the Act (penalties under section 36 can only be levied against undertakings, not individual employees of undertakings) and was barred by the public policy principle of ex turpi causa: Safeway was impermissibly seeking to rely on its own wrong. Safeway v Twigger [2011] 2 All ER 841 (Andrew Mitchell QC and David Murray)
  • Acted for BAA plc and Stansted Airport in their widely publicised dispute with Ryanair in relation to fuel and aeronautical charges arising out of the use of Stansted Airport (Michael Crane QC with Deepak Nambisan).
  • Represented the Director-General of the Office of Fair Trading in the successful application to remove Resale Price Maintenance on over-the-counter medicines (Brian Doctor QC);
  • Acted for the OFT in various applications and the Court of Appeal trial of Argos and Littlewoods v The Office of Fair Trading [2004] CAT 24; [2004] All ER (D) 203 (judgment on liability) regarding Chapter 1 price fixing (Brian Doctor QC);
  • Acted for the OFT in Argos and Littlewoods v The Office of Fair Trading [2005] CAT 13 (judgment on penalty) (Brian Doctor QC);
  • Advised the OFT on Credit Card Default charges and tobacco retailing (Brian Doctor QC);
  • Acted for the Defandants in Bookmakers Afternoon Greyhound Races v Amalgamated Racing [2008] EWHC 1978 (Ch) concerning an abuse dispute between race-courses and bookmakers. He also acted in the counterclaim for an alleged cartel in Bookmakers Afternoon Greyhound Races v Amalgamated Racing [2008] EWHC 2688 (Ch) (Brian Doctor QC);
  • Acted for care home proprietors in successfully resisting OFT attempt to apply Unfair Terms in Consumer Contracts Regulations to transfer fees (Brian Doctor QC)
  • Acted in (then) Article 81 dispute relating to Liverpool Airport. (Brian Doctor QC)
  • Acted for Rover/BMW and Unipart in relation to a substantial multi-party Article 85/86 dispute concerning a wide-ranging challenge brought to the motor industry’s systems for the distribution of spare parts (Michael McLaren QC);
  • Digicel v Cable & Wireless, a 5 month trial claim against Cable & Wireless plc arising from the alleged unlawful and uncompetitive activities of Cable & Wireless and its subsidiaries in their alleged deliberate delay of the liberalisation of telecommunications in 7 countries in the Caribbean (Stephen Rubin QC and Rupert Allen); this case raised a number of competition law issues, but also important practical issues as to proving causation and damages in competition cases where the competitor claims to have been kept out of the market.
  • Represented the Claimant in R (EasyJet Airline Co) v Civil Aviation Authority, Administrative Court in its challenge to airport charges for 2008-2013 (Charles Béar QC)
  • Advised an EU national TV station as to whether its Formula 1 broadcasting contract complied with competition law (Mark Simpson QC);
  • Acting for a FTSE top 100 company in the “follow on” damages claims arising out of a Commission finding that the company and several others were involved in a cartel (Mark Simpson QC).
  • Acting for Volvo in relation to a substantial multi-party Article 81 dispute arising from the Car Glass cartel (Philip Brook Smith QC)
A further example of our competition expertise may be found in the fact that not less than 12 members of chambers acted in the long-running competition and banking matter concerning the legality of bank charges: The Office of Fair Trading v. Abbey National & Others. There have been two substantive hearings before Andrew Smith J and one in the Court of Appeal. Before going to the House of Lords, Richard Coleman was acting for the OFT and was led by Brian Doctor QC at the first instance. Andrew Mitchell QC and Simon Atrill were acting for Barclays Bank; Bankim Thanki QC led Richard Handyside QC, Edward Levey and James Duffy, acted for Lloyds TSB; Patrick Goodall acted for HSBC whilst Timothy Howe QC led James McClelland and acted for HBOS.
 
 
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