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Hausfeld London announces three Senior Associates promotions

Hausfeld London is pleased to announce that Hana Tawfik, Alex Cooper and Shahrina Quader have been promoted to Senior Associates, effective immediately.The promotions are strengthening Hausfeld growth across competition, commercial and environmental law. Hana Tawfik – Hana focuses primarily on commercial disputes, with experience in international cross-border disputes. Since joining Hausfeld in 2018 she has worked on arbitral proceedings, commercial litigation and high value financial services disputes. Hana also has experience in environmental litigation. Hana played a key role as part of the Hausfeld team representing the Environmental Law Foundation as an intervener in Manchester Ship Canal’s recent Supreme Court appeal. In a landmark decision for environmental campaigners, the Supreme Court unanimously allowed Manchester Ship Canal’s appeal and ruled that owners of watercourses can bring private law claims against sewage undertakers arising from sewage dumping. Hana is listed as a Key Lawyer in The Legal 500 and is recognised in the inaugural Pro Bono Recognition List. Alex Cooper - Alex focuses predominantly on resolving commercial and competition disputes and offers experience in a range of matters including financial disputes and commercial litigation, as well as expertise in climate change-related governance and legal issues. Alex has worked with a wide range of UK and international corporates, as well as with a number of civil society entities. Shahrina Quader - Shahrina is a dual qualified disputes lawyer (Australia and England & Wales) who focuses on competition law. She has extensive experience in competition and consumer law litigation / investigations from working in the enforcement team at the Australian Competition and Consumer Commission, and the Litigation Unit at the Competition and Markets Authority. She has led investigations and litigation into competition and consumer law cases in relation to abuse of dominance, cartel conduct and unfair trading practices. Congratulations to Hana Tawfik, Alex Cooper and Shahrina Quader on their well-deserved promotions.  
05 November 2024
Press Releases

Senior lateral hires for Hausfeld: two leading competition disputes lawyers join in London and Hamburg

Global disputes-only law firm, Hausfeld, is pleased to announce that partners Joanna Christoforou will join its London office from Morgan Lewis and René Galle will join its Hamburg office from A&O Shearman. Both have strong backgrounds in antitrust law and antitrust litigation. With a background in big-ticket litigation, Joanna has a track record of successfully handling high-stakes and complex UK and EU competition litigation in the English and European courts which earned her recognition from Legal 500 UK in the Competition Litigation as well as EU and Competition categories. They describe her as “extremely skilled, responsive and bringing a real depth of experience in this complex and challenging area.” Her inclusion is a testament to her standing within the legal community. She will join Hausfeld on 11 June. Following years of high-profile work René has built a market reputation as a 'rising star' (Legal 500), 'future leader' (WWL and Expert Guides) and a 'leading competition lawyer' (Best Lawyers/Handelsblatt). René possesses a long track record with many successes in high-profile competition litigation cases. He serves as a regional co-head of the prestigious Association of German Antitrust Lawyers. Clients and peers consider him 'exceptionally sound in every area of competition law' and value 'his special understanding of and access to economic contexts' (WWL). René will join Hausfeld on 1 September. This brings Hausfeld European competition disputes resolution team to 14 partners and 44 qualified lawyers, further supported by a team of paralegals. We believe that we have the largest dedicated claimant private enforcement team in Europe and that our expertise and experience in this field remains unparalleled, with our senior team considered to be authorities in the private enforcement of competition actions on behalf of single claimants as well as groups, both for individuals as well as businesses. Commenting on the announcement, Anthony Maton, Global Co-Chair: “Welcoming our two new senior antitrust lawyers to our European team marks another milestone in our commitment to delivering unparalleled expertise and strategic insight to our clients. Their formidable experience will undoubtedly further elevate our capabilities with strong teams in the UK, Germany and the Netherlands, as we continue to navigate a fast evolving and expanding legal landscapes and advocate for fair competition in the marketplace." Joanna Christoforou says: “Hausfeld has established itself as a preeminent firm in bringing cartel damages actions, abuse of dominance claims and collective claims. The big legal developments are really being driven by the claimant side - with Hausfeld playing a big role - which is why joining the firm is so exciting.  My focus remains on contentious work and litigation and a specialist disputes practice of Hausfeld’s caliber and reputation seems to be a perfect fit.” René Galle added: “Competition litigation is my passion and at Hausfeld, it sits at the heart of the firm which makes it the right place to be. I am really excited to further boost its leading competition practice. Hausfeld achieved tremendous growth over the last years and ranks today among the top players in the German competition litigation field. Since antitrust law and related regulation, such as the Digital Market Acts, continue to be on rise, so is client demand. I look forward to assisting clients on complex high-profile litigation matters as a partner at Hausfeld.”  
05 November 2024
Press Releases

New Managing Partner and Heads of Commercial Disputes for Hausfeld in London

London, 3 June 2024 - We are delighted to announce that Nicola Boyle will become Hausfeld’s new Managing Partner in London. In addition, Lucy Pert and Ned Beale will become Co-Heads of the Commercial Disputes Team. Nicola joined Hausfeld London shortly after its launch. A well respected and recognised competition litigator, she brings undisputed expertise in leading large-scale, complex litigation and has been the quiet force behind the growth of our collective redress and group actions practice. She has acted on some of the most significant damages claims of the last decade such as the paraffin wax cartel, the Interchange Fee litigation and is currently leading the collective action against Qualcomm on behalf of Which?. As a member of the London Management Committee, she has been responsible for the smooth running of Hausfeld’s Operations in London. Nicola was instrumental in the founding of the Collective Redress Lawyers Association (CORLA) and remains a Committee Member involved in the development of policy objectives on behalf of all CORLA members. She takes the reins from Lianne Craig on 1 July who stepped down recently and to whom the firm is grateful for her contribution. Her decision followed a serious illness in her family, which required her to shift her focus. The experienced Lucy Pert and Ned Beale will lead the Commercial Disputes Team as Co-Heads and take over from John McElroy. Both are leading lawyers ranked by the legal directories. Lucy has a strong practice in commercial disputes with a focus on financial services in both litigation and arbitration. Ned continues to act in market leading disputes in the High Court and international arbitration, with particular focuses on aviation and post-M&A claims. Global Co-Chair Anthony Maton reflects: “Lianne has played a key role in shaping Hausfeld in London and the entire firm supports her decision to focus time on her family." "I could not think of a better person to continue our work than Nicola who has a deep understanding of our business and our key practices having played a key role as part of our Management Committee for years. She has helped navigate the firm’s path within the current dynamic and continuously changing environment. I wish her, and know she will have, every success - especially with the excellent counsel from Scott Campbell as Head of Competition and the new leadership of Lucy Pert and Ned Beale as Co-Heads of Commercial Disputes.” The news follows on from Hausfeld’s recent announcement that Partner Joanna Christoforou joins the Competition Disputes Team on 11 June from Morgan, Lewis & Bockius. For more information For more information about Nicola Boyle, Lucy Pert and Ned Beale and their case highlights, please click the link on their names.  
05 November 2024
Press Releases

The Lawyer: The Top 20 cases of 2024

In what has become one of the most anticipated features each year, The Lawyer Top 20 Litigation for 2024 includes the All-Party Parliamentary Group on Fair Business Banking v The Financial Conduct Authority,the judicial review relating to the interest rate hedging products disgrace - one of the worst scandals in British banking - as one to watch. The Lawyer writes: “In what promises to be a significant judicial review for the financial services sector, The All-Party Parliamentary Group on Fair Business Banking (APPG) seeks to overturn a decision by the Financial Conduct Authority (FCA). If successful, banks could be required to pay a further £3.2bn to customers who were mis-sold interest rate swaps in the interest rate hedging products scandal. The scandal saw banks mis-sell products designed to protect customers from interest rate rises, but which actually left them with enormous costs when the global financial crisis hit and interest rates fell. A 2012/13 redress scheme entered into between the FCA and nine retail banks including Barclays, Lloyds and Santander resulted in the banks paying more than £2bn to customers in respect of over 20,000 sales. However, a 2021 review by former Monckton Chambers barrister John Swift KC criticised the scheme, including its scope, finding that it was wrong to exclude thousands of sales to customers who were considered “sophisticated.” Although the FCA accepted several of Swift’s findings, it did not agree to expand the scope to compel the banks to provide further redress. The cross-party group of MPs and Peers, chaired by Tories Simon Fell and William Wragg, is crowdfunding its application to reverse this decision, arguing it was irrational for the FCA to reject Swift’s findings on scope, and that it acted irrationally and procedurally unfairly in taking no further steps.” Ned Beale, Simon Bishop, Rachael Baillie and Alex Cooper are representing the APPG and are working with 3 Hare Court’s Thomas Roe KC and 39 Essex’s Anna Lintner. The full article (subscription may be required).  
05 November 2024
Press Releases

The Spanish High Court confirms Milk Cartel existed between 2000-2013

Madrid, 21 February 2024 - In a historic ruling, the National Court dismissed the appeals filed by the dairy industry in support of the sanctions imposed by the Spanish National Markets, and Competition Commission (CNMC) in July 2019 who fined ten of the largest Spanish and international dairy companies and associations € 80.6 million for anti-competitive practices. The National Court confirmed the existence of the Milk Cartel carried out between 2000 and 2013 by the main dairy industries operating in Spain: Pascual, Puleva, Capsa (which operates under the brand Central Lechera Asturiana), Danone, Lactalis, Nestlé, Celega and Schreiber. They exchanged information, at national and regional level, on purchase prices of raw cow's milk, purchase volumes of farmers and milk surpluses. This unlawful behaviour deprived dairy farmers of the right to freely negotiate the price of their milk, and further weakening their bargaining position, in a market already infamous for the low prices paid to farmers. Hausfeld and legal services company ESKARIAM, supported by Hitchings & Co, represent 7,000 farmers nationwide, mainly located in Galicia, Castilla y León, Catalonia, Valencia, Asturias and Cantabria). They intervened in the appeals before the National Court in defence of the entire livestock sector, through the submission of defence briefs to the CNMC and specialised economic reports, explaining the functioning of the dairy market  and likely contributing to this historic ruling issued by the National Court. In light of this ruling, livestock farmers will now be able to confidently exercise their right to claim compensation for the damages suffered all these years, which may exceed € 1 billion for the sector as a whole, and we will continue to support the farmers in this fight.  
05 November 2024

ECtHR rules on three landmark cases addressing governments’ (in)action on climate change

On 9 April 2024, the Grand Chamber of the European Court of Human Rights (“ECtHR”) delivered highly anticipated judgments in three important cases. The applicants in these cases argued that the European Convention on Human Rights (the “ECHR”) requires governments to take more action to address the harms caused by climate change. The ECtHR found a violation of human rights in one case but ruled that the other cases were inadmissible. Despite the mixed outcome, the ECtHR’s findings mean that governments must address climate change to ensure the protection of fundamental rights under the ECHR. Background The rights and obligations enshrined in the ECHR have been cited in environmental and climate litigation cases for many years. While the ECtHR has ruled that localised environmental harm breaches the ECHR – for example, pollution from an industrial plant in Cordella v Italy – the question of how the effects of climate change should be understood in relation to ECHR rights remained a contested issue. Over several years, claimants in domestic courts have sought to rely on Articles 2 (the right to life) and 8 (the right to respect for private and family life), and the doctrine of positive obligations (the duty on States to take active measures to prevent rights breaches), to argue that national governments were obliged to do more to prevent climate change. In bringing these cases, claimants have had to challenge arguments that climate change is a collective action problem and demonstrate that there is a sufficient (factual and legal) causal link between climate-associated harm and government inaction. This was the essence of the arguments in the three cases in Strasbourg. The ECtHR agreed to expedite the cases by granting them priority status and referring them to the Grand Chamber (a move that is reserved for only “exceptional cases”). It also decided to address the issues of admissibility and substantive merits together, in recognition of these cases’ importance: Verein KlimaSeniorinnen Schweiz and Others v Switzerland was brought by four individuals and an association of elderly Swiss women against Switzerland; Carême v France involved a French politician bringing a claim against France; and Duarte Agostinho and Others v Portugal and 32 Others saw six young people argue that all Council of Europe States (excluding Ukraine), including the UK, were failing to take sufficient action against climate change and were therefore breaching their rights. Save the Children International, represented by Hausfeld, intervened in Duarte Agostinho in May 2021 to provide insight into the particular vulnerability of children in the face of climate change and its effects. The Judgments Whilst each case was separately heard in 2023, the ECtHR issued judgments in respect of all cases on the same date, given the overlapping themes. In Verein KlimaSeniorinnen, the ECtHR ruled that the individuals’ claims were inadmissible as they did not meet the ‘victim-status’ threshold but – in a finding that may be important for future cases – the association was found to have standing given the way in which climate change is a common concern. The ECtHR went on to find a breach of Article 8, holding that: Article 8 encompasses “a right for individuals to effective protection by the State authorities from serious adverse effects of climate change on their life, health, well-being and quality of life”; States must therefore adopt and apply relevant measures to mitigate the effects of climate change which – particularly in light of international commitments such as the Paris Agreement – included measures aimed at preventing greenhouse gas emissions; and Switzerland had not instituted a sufficient domestic framework (such as the inception of carbon budgets) and had previously missed emissions targets previously, and this constituted a breach of Article 8. A dissenting opinion was expressed by one of the 17 judges, who disagreed on both the issues of admissibility and merits on the basis that the majority’s approach to the ECHR had gone beyond “the permissible limits of evolutive interpretation”. By contrast, both Duarte Agostinho and Carême were ruled as inadmissible and so the ECtHR did not provide a ruling on the merits of these cases. In the former, the ECtHR was unwilling to find that a claim by Portuguese applicants was admissible against other States: this would have required extending the extraterritorial jurisdiction of those other States which could not be justified, even though the ECtHR recognised the particular and significant threats that climate change represents. As regards the claim against Portugal, the ECtHR found that the applicants had jurisdiction but failed to exhaust domestic remedies before applying to Strasbourg for declaratory relief. The applicant in the third case had been the mayor of the Grande-Synthe municipality, which faced particular risks associated with climate change including a higher risk of flooding. However, he no longer lived in Grande-Synthe and was found not to have victim status such that he could bring his claim. Comment These judgments are seminal as they represent the first climate change decisions by the ECtHR. They will shape the future of climate action and litigation. Carême and Duarte Agostinho were found to be inadmissible but the ECtHR nevertheless made important observations about the existential threat of anthropogenic climate change and the control that States have over greenhouse gas emissions in their jurisdiction The ECtHR’s judgment in Verein KlimaSeniorinnen is likely to have an even more significant impact. Switzerland is now required by the ECtHR to take action to address its breach of Article 8. More broadly, the finding on standing for relevant organisations will assist in prospective claims across Europe and the ruling on Article 8 demonstrates that there is a minimum level as regards climate policy (and the effectiveness of such policy) below which States cannot fall without breaching the ECHR. However, what that means in practice for States, domestic and international policy, future litigants, and, ultimately, the planet remains to be determined, likely by both politicians – the Council of Europe’s Committee of Ministers will assess Switzerland’s response, for example – and future legal actions. Author: David Lawne, Luke Grimes and Patrick Kenny
05 November 2024
Commercial and Banking

High Court considers novel “retrieval duty”: will this extend banking liability beyond Quincecare?

The recent High Court decision in CCP Graduate School v NatWest and Santander [2024] EWHC 581 (KB) is the first judgment discussing the Quincecare duty owed by banks since the Supreme Court’s decision in Philipp v Barclays Bank UK PLC [2023] UKSC 25.In CCP v NatWest and Santander the High Court considered the novel question of whether and to what extent the Defendant banks had a duty to retrieve funds which the Claimant alleged had been dissipated as a result of authorised push payment (“APP”) fraud. Whilst certain elements of the claim were struck out, the High Court refused summarily to dismiss the claim against Santander. Background Our previous Perspectives [1] on the evolution of the law around the Quincecare duty include a description of the background to the previous cases, and their appellate history. In this case, the relevant payments were made between 13 September and 12 October 2016.  The Claimant, acting through its sole director Mr Pathirana, instructed NatWest (the first Defendant) to make fifteen payments to a bank account held with Santander (the second Defendant). The Claimant believed the payments, totalling £415,909.67, were being made to PGW Limited. For each transaction, the Claimant provided NatWest with the sort code, account number and the payee reference: “PGW limited”. The Santander account holder was ultimately discovered to be PGW Consultants Limited. The Claimant alleged that it was unaware that the Santander account was under the control of a criminal gang at the time at which the payments were made. The Claimant’s case was that the criminal gang had deceived the Claimant into instructing NatWest to transfer the funds into the fraudulent Santander account on the false basis that the funds would be applied as investments by PGW Limited. By 22 October 2016, the Claimant had notified NatWest of the potential fraud in relation to the payments. NatWest notified Santander on the same day. The funds had however been dissipated and were lost, with only £14,000 being retrieved. The Claimant argued that NatWest breached its duty of care by carrying out the payment instructions without taking steps to prevent fraud in accordance with the Quincecare duty. It was also alleged that Santander had failed in its duty of care by allowing the transferred funds to be removed from the account. ​ Decision Claims against NatWest NatWest had argued that these claims had been issued out of time and therefore should be struck out. The last payment left NatWest on 12 October 2016 and the claim, having been issued on 18 October 2022, had been brought outside of the limitation period. The Claimant argued that the limitation period had been extended under s32(1)(c) of the Limitation Act 1980, which allows relief from the consequences of mistake. The Claimant’s position was that it only discovered on 22 October 2016 that it had been a victim of APP fraud, and the claim was an action for relief in respect of that mistake. The Court rejected that argument as an extension under this ground is only available where mistake is an essential element of the cause of action. This was not so in the present case. The Court therefore struck out the claim against NatWest in respect of allowing the payments to be made. The Court then considered the alternative basis to strike out the claim, based on the Quincecare duty and the Supreme Court’s decision in Phillipp. NatWest argued that the payments were authorised by the Claimant and made in accordance with its instructions. The Court restated the established position in relation to APP fraud in circumstances such as this: “Where a bank’s customer is the victim of an APP fraud, the bank’s duty to exercise reasonable care and skill is not engaged unless there are doubts as to the validity of the customer’s instruction.” [2] The Claimant argued that NatWest had a duty to exercise reasonable care and skill when carrying out the payment instructions and that this required NatWest to refuse to carry out those instructions. However, the duty “only arises where the validity or content of the customer’s instruction is unclear or leaves the bank with a choice about how to carry out the instruction” [3]. The Claimant argued that its instructions were equivocal in that they referred to PGW Limited not PGW Consultants Limited and that in actioning these payments NatWest was in breach of mandate. The Court highlighted that the claim had not been pleaded as a breach of mandate and should therefore be summarily dismissed for being defective as a matter of law or otherwise. On the question on whether NatWest owed the Claimant a duty to take reasonable steps to retrieve or recover the sums paid out as a result of the APP fraud (the “retrieval duty”), the Claimant argued that the bank had been put on notice of matters which called for investigation and immediate action. As a result of this notice, NatWest, acting as a reasonably prudent banker, should or would have immediately contacted Santander and either sought recall of those payments or warned Santander that there were strong grounds for suspecting criminality and to not allow the funds to leave the Santander account. It was argued that appropriate indemnities should have been given as required. The Claimant pointed out that Lloyds Bank had identified that large sums from the Santander account had been paid into an account held with Lloyds, and made attempts to retrieve the money when notified of the suspected fraud. It was argued that NatWest could have done more to prevent the dissipation of funds once the bank had been put on notice. Although the Court noted that a bank could have offered an indemnity to the bank receiving funds suspected of fraud to prevent any further dissipation of funds, the Court found that this proposed amended pleading did not arise out of the same or substantially the same facts as the originally pleaded claim, so that the proposed amendment had to be summarily dismissed. Claim against Santander Despite finding that no Quincecare duty existed between Santander and the Claimant, the Court refused to dismiss the claim based on the retrieval duty against Santander. It was found that there may be some basis for arguing that Santander could have taken steps to retrieve the funds once Santander had been notified by NatWest, drawing on the comparison with the actions of Lloyds bank once it had been notified. Further, at the time at which the claim was issued, some of the Claimant’s funds remained in the Santander account, which meant the relevant part of the claim was not time barred. Comment The legal landscape in this area is in a state of flux and this is a significant decision. The courts’ willingness to allow victims of APP fraud to use the retrieval duty as an alternative route to recover funds is yet to be fully tested. Until cases such as this proceed to a trial dealing with not only the appropriateness of such a duty, but also the scope of it, victims of APP fraud will need to rely on the existing Quincecare line of cases. Importantly, however, this decision does leave open the possibility for the courts to extend duties owed by banks to their customers and the final outcome of the case will be closely watched. The Payment Systems Regulator has recently taken action to assist victims of APP fraud through the introduction of a new mandatory reimbursement requirement which comes into force on 7 October 2024. The new rules require payment service providers to reimburse victims of APP fraud meeting certain criteria, such as the payments having occurred in the UK and not exceeding £415,000. APP fraud often involves sums far larger than this upper limit and can involve international accounts, so it is clear that APP fraud claims will continue to make their way through the courts. Authors: Ned Beale and Deminca Nettleford Footnotes [1] Quincecare duty of care not confined to companies and agents, Privy Council rejects extension of Quincecare duty of care and The Supreme Court determines the Quincecare duty’s capacity [2] [24] [3] [63]  
05 November 2024

AG Kokott recommends upholding the €2.4 billion fine imposed on Google in relation to Google Shopping

On 11 January 2024, Advocate General (AG) Kokott delivered her Opinion [1] on Google’s [2] appeal to the Court of Justice in relation to Google Shopping [3]. The Opinion is the latest judicial assessment of the legality of Google’s self-preferencing conduct which was found to be abusive by the European Commission in its 2017 fining Decision [4]. The AG recommended that the Court of Justice should dismiss Google’s appeal and uphold the findings of the General Court and European Commission. If the AG’s Opinion is followed by the Court of Justice, it will provide clarity on the application of Article 102 TFEU to tackle anti-competitive conduct in digital markets. Background On 27 June 2017, the European Commission adopted the Google Search (Shopping) Decision in which it found that Google had abused its dominant position as a search engine by giving more favourable positioning and display in its search results to its own comparison shopping service (Google Shopping) as compared to competing services. The European Commission fined Google €2.4 billion, a record fine at the time. Google appealed that decision to the General Court which largely dismissed Google’s appeal [5]. Google subsequently appealed the General Court’s judgment to the Court of Justice and the hearing took place on 19 September 2023. The Opinion At the outset, AG Kokott highlighted that the legal questions in this case are “of great legal and practical importance"[6] as they grapple with the conditions under which a difference in the treatment of competitors by a dominant undertaking can be classified as an unlawful abuse as well as with what the European Commission must show to establish such an infringement of competition law. Self-preferencing The AG noted that this is the first case where unequal treatment by a dominant undertaking through self-preferencing has been expressly classified in case-law as an abuse of dominance within the meaning of Article 102 TFEU [7]. The AG considered that whilst the “defining example” under Article 102(c) refers mainly to discrimination between different trading partners or competitors of the dominant undertaking, it is settled case law that the list of abusive practices set out in Article 102 TFEU is not exhaustive [8]. Therefore, forms of unequal treatment that are similar to, and as harmful as, the example in article 102(c) TFEU may also be classified as an abuse [9]. Part of Google’s appeal was premised on the argument that self-preferencing could only constitute an abuse of dominance if it fell within the strict criteria set out by the Court of Justice in Bronner [10], which concerned a refusal to grant access to an essential facility. The AG rejected Google’s argument and stated that the Bronner criteria should be applied within narrow limits and “only to comparable cases of refusal of access or supply” [11] and that in the present case “there is no refusal of access or supply within the meaning of the Bronner criteria”[12]. Accordingly, the AG found that the General Court’s conclusion that the European Commission was not required to apply the Bronner test was correct, as it was not the relevant test in the circumstances. In the AG’s view, Google’s self-preferencing constitutes an independent form of abuse through the application of unreasonable conditions of access to competing comparison shopping services, provided that it has at least potentially anticompetitive effects [13]. As-efficient competitor test As a further ground of appeal, Google argued that the European Commission had a duty to examine whether the alleged practices were capable of driving an existing or hypothetical as-efficient competitor from the market under the “as-efficient competitor test”. It argued the Commission had failed to apply such a test in the present case. The AG however agreed with the General Court’s finding that the European Commission was not under an obligation to apply the “as-efficient competitor test” to support a finding that restrictive effects on competition were present, and noted that the test “is not generally applicable, let alone an essential prerequisite”[14] for determining whether a dominant undertaking’s conduct is abusive. The Opinion clarifies that applying this test only makes sense in respect of a price-related practice, and that its application should not be extended to non-price practices such as those at issue in the present case [15]. In the AG’s view, the European Commission was therefore required to demonstrate only potential restrictive effects on competition and, as such, it is immaterial whether Google’s product search engine was more efficient than those of its competitors [16]. Comment While the Opinion is not binding on the Court of Justice, it is significant given that, if followed, it will confirm the reasoning of the General Court in upholding the European Commission’s decision and Google’s liability for its self-preferencing conduct will become final. Moreover, a ruling in line with the Opinion's reasoning would offer clarity to regulators navigating anti-competitive conduct in digital markets. It would provide a framework for formulating decisions under Article 102 TFEU, thereby addressing abusive conduct more effectively. It would also confirm that Article 102 TFEU has the flexibility to encompass a wide range of anticompetitive conduct, including in novel, fast-paced technology markets. Such a ruling would also have wider implications for the enforcement of abuse of dominance cases in the EU by likely emboldening regulators to adopt further decisions based on the Court’s findings. It would also provide reassurance to those affected by abuses of dominance in these markets that the law is developing to enable effective action by regulators. Hausfeld (London and German teams) represented Foundem, VDZ, BDZV and Ladenzeile (formerly, Visual Meta) in their interventions in support of the European Commission before the General Court and the Court of Justice. Authors: Tom Bolster, Stella Gartagani and Dexter Stevens Footnotes [1] C-48-22, Opinion of Advocate General Kokott dated 11 January 2024, ECLI:EU:C:2024:14. Available here. [2] Google LLC and Alphabet Inc. [3] Google’s appeal challenges the findings of the General Court on Google’s appeal of the Google Search (Shopping) Decision adopted by the European Commission on 27 June 2017. [4] European Commission’s Google Shopping Decision C(2017) 4444 final (Case AT.39740 – Google Search (Shopping)). See information on our current claims relating to the Google Shopping Decision here: Hausfeld | Google Shopping decision. [5] General Court’s Judgment T-612/17, EU:T:2021:763. See also our News, Perspectives and Competition Bulletin articles relating to the General Court’s decision: Hausfeld | General Court dismisses Google’s appeal of the Google Shopping Decision; Hausfeld | The Google Shopping decision and whether digital platforms can constitute essential facilities; and Hausfeld | EU Shopping judgment: what does equal access to Google general results pages mean? [6] AG’s opinion, paragraph 2. [7] AG’s opinion, paragraph 71. [8] AG’s opinion, paragraph 76. [9] AG’s opinion, paragraph 76. [10] Case C-7/97 Oscar Bronner GmbH & Co. KG v Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG, Mediaprint Zeitungsvertriebsgesellschaft mbH & Co. KG and Mediaprint Anzeigengesellschaft mbH & Co. KG. ("Bronner"), EU:C:1998:569. [11] AG’s opinion, paragraph 81. [12] AG’s opinion, paragraph 91. [13] AG’s opinion, paragraph 90. [14] AG’s opinion, paragraph 196. [15] AG’s opinion, paragraph 190-191. [16] AG’s opinion, paragraph 190.
05 November 2024
Press Releases

In a historic first, BP hit by legal action alleging that its excessive gas flaring caused death of young Iraqi

London, Tuesday 23rd April 2024 - An Iraqi national, Hussein Julood, has sent a Letter Before Action (LBA) to BP plc on 22 April, seeking damages for the death of his son, who he claims died from cancer caused by the oil giant’s gas flaring. This is the first time that a fossil fuel corporation has been faced with a lawsuit in the UK relating to flaring overseas. Ali’s story Ali Hussein, Mr Julood's son, was diagnosed with leukaemia at the age of 15 (1). The cancer caused him to drop out of school, leave his football team and spend years undergoing painful and invasive medical treatment. Ali died on 21st April 2023, at the age of 21. Ali and his family grew up near Rumaila in Iraq, a town with cancer rates so high that locals call it “the cemetery”. Rumaila is one of the largest oil fields in the world where BP has extracted oil for over a decade. A BBC investigation (2) in 2022 analysed World Bank data and estimated that more flaring is carried out at Rumaila than at any other oil field in the world. This is despite BP’s claims over many years that it is committed to the reduction of methane emissions and flaring. The same investigation found compelling evidence that communities like Ali's are exposed to high levels of toxic emissions from BP's gas flaring, and have abnormally high cancer rates. In response to Ali’s death, BP appeared to recognise that the rate of flaring at Rumaila was too high: it claimed that it was working hard to reduce instances of flaring in Iraq. This is no answer to local people who have already suffered years of exposure to harmful pollutants. Corporate accountability Iraqi law is clear in its environmental regulations: oil refineries should not be located within 10 kilometres of individuals’ homes and compensation must be paid by those causing unlawful environmental harm; in Rumaila, evidence suggests flaring takes place just 5km away from where local communities live. The Iraqi Penal Code also prohibits deliberately or negligently releasing emissions that cause harm to others. In his letter to BP plc, Mr Julood claims that senior management made decisions that permitted excessive gas flaring to persist at the Rumaila oilfield, where a local BP subsidiary was the lead contractor. It is further alleged that such flaring ultimately resulted in the illness and death of his son. Mr Julood’s father is represented by international law firm Hausfeld & Co. LLP. The oil company should now formally acknowledge the LBA and has 90 days to respond substantively. “My son was my best friend,” said Mr. Julood. “Despite his suffering, Ali sought justice for all the people in the community who have been affected by flaring and those suffering from the same issues around the world. Companies like BP still appear to be in breach of Iraqi law by gas flaring illegally close to people’s homes. That’s why I am demanding damages from BP for the loss of my courageous son, Ali. BP and all their counterparts must take responsibility for the death and illness they bring to the world.” Gas flaring is the burning of excess gas, produced as a by product from the extraction of oil (3). The International Energy Agency, the World Bank (3) and other international institutions have criticised gas flaring, as it releases cancer-linked pollutants such as benzene into the air. BP has previously expressed concerns about flaring (5), following evidence (4) revealed by the BBC of extensive and unreported flaring occurring at Rumaila. The World Health Organization has said there is no safe level of benzene that humans can be exposed to. Legal action The sending of the LBA is the first step in the litigation process in England. It sets out the details of the claim and invites BP to respond. If no such agreement can be reached, and if BP cannot respond satisfactorily to Mr Julood’s allegations, the next stage will be to formally issue proceedings in court. Wessen Jazrawi, partner at Hausfeld said: “This is an important example of environmental and human rights litigation demanding compensation for harmful emissions from a carbon major. Such companies have generally been able to carry out harmful environmental practices with impunity, particularly where these occur in the Global South.” Iraqi law – which is likely to apply even though the legal action is taking place in the UK – allows individuals to claim compensation where they have been caused harm and specifically prohibits the release of gas or emissions that cause harm to others. Oil companies are increasingly targeted by lawsuits around the world, seeking redress for their impact on the environment and local communities, for example, in Nigeria against Shell (6) and in Ecuador against PetroOriental (6). BP's Annual General Meeting on 25 April 2024 Wessen Jazrawi and Patrick Kenny attended the AGM on 25 April and made the following statement on behalf of Hussein Julood: "I am asking this question on behalf of my client, Hussein Julood. On behalf of the people of Basra, I want to say that we never thought your oil operations would be so harmful to our community or the environment. As ordinary citizens, we’ve heard about BP's professionalism and dedication to environmentally responsible practices. You changed your company logo to green to show that you care for the environment, but you are doing the opposite in Basra. Your operations have devastated the health and environment of communities around your oil fields. The facilities at Rumaila are being operated less than 10km away from residential areas in violation of local law, emitting untreated toxic gases into the air. You claim to have reduced gas flaring, but a huge amount is still ongoing, filling the sky with thick black smoke. While you adhere to environmental standards elsewhere, you openly disregard both human rights and environmental protections in Iraq. My son Ali and I will stand as eternal witnesses to your actions. I hold you responsible for my son's early death, age 21, of leukaemia, and the financial and emotional hardships my family now faces. While I seek reparations for my son’s death, Ali’s mother and I will never be compensated for the pain in our hearts. We all know that there has been significant flaring at the Rumaila oil field where you are the lead contractor; we know that such flaring releases toxic emissions and carcinogenic chemicals; we know that those living near Rumaila, including children, have died from cancer at disproportionate rates. Will you now commit to compensating those who have suffered and make meaningful reductions in flaring?"  
28 October 2024
Press Releases

Friends of the Earth takes legal challenge against anti-protest injunctions to European Court of Human Rights

In a first for the environmental justice organisation, Friends of the Earth has filed an application with the European Court of Human Rights (ECtHR), challenging the use of anti-protest injunctions in the UK. This follows deep concern about the rapid and widespread increase in their use since 2017, which is having a chilling effect on environmental protest. These orders are taken out against unknown and unidentifiable defendants (‘persons unknown’) instead of named defendants, thereby maximising the range of people who can be caught by their terms, even if they do not know about them. Those targeted by the injunctions face potential imprisonment, asset seizure and exorbitant cost consequences if they are found in breach. Anti-protest injunctions are a means for private companies and public authorities to effectively create their own, bespoke public order offences - instead of relying on the criminal justice system. These orders can and do have a chilling impact on peaceful, lawful protest, and have been used by companies like oil and gas exploration company Cuadrilla - which was at the forefront of efforts to exploit UK shale gas - to target anti-fracking protestors. Friends of the Earth’s application to the ECHR follows a Supreme Court ruling in November last year over the use of injunctions that targeted both the Gypsy and Traveller communities and environmental protesters. The Supreme Court imposed significant constraints on their usage relating to Gypsy and Traveller communities, but it made clear that these constraints do not apply to anti-protest injunctions. This means that environmental protestors continue to be at risk from this parallel system of law enforcement [1]. Friends of the Earth’s case is the first time that an application relating to orders of this kind in the UK has been filed at the ECHR. The organisation believes that anti-protest injunctions obtained against unknown and unidentifiable defendants are fundamentally unfair and breach human rights safeguards under national law and our international human rights obligations. Friends of the Earth’s application will centre on articles 10 and 11 (freedom of expression) and article 6 (right to a fair trial) of the European Convention of Human Rights. There are great practical difficulties to challenging these anti-protest orders: They are often obtained on a ‘without notice’ basis, meaning that the party seeking the injunction does not need to notify any defendants that it is making the application, as is normally required under the court rules. The effect is that the judge asked to grant the injunction will often only hear arguments in favour of the order being granted, rather than any arguments in opposition. Fighting these injunctions can be very or even prohibitively expensive. There are huge uncertainties over the availability of any cost protection, which can price people out of court, as has happened in the past to Friends of the Earth, or result in enormous cost liability if someone decides to participate in proceedings anyway. Sentencing for breach of an injunction is often more severe than the equivalent offence under the criminal law, and there can also be huge cost consequences. One HS2 protestor was ordered to pay costs of £25,000 for breaching their injunction [2]. The use of anti-protest injunctions is part of a wider landscape of increasing criminalisation of protest generally within the UK. The Police Crime Sentencing and Courts Act is another example, which restricts the right to peaceful protest and puts people who take part at greater risk of prosecution. Friends of the Earth lawyer, Katie de Kauwe, said: “We believe that the increasing use of anti-protest injunctions breach our fundamental rights and stifle peaceful, lawful protest. “Protest through history has been a powerful means to achieve positive change in this country and throughout the world, from the women’s suffrage movement to the dismantling of apartheid in South Africa. “With the climate crisis spiralling out of control, it’s disturbing that both private companies and public authorities are putting so much effort into preventing people from sounding the alarm, instead of intensifying efforts to build a cleaner future. “The European Convention of Human Rights is crucial to protecting the space for citizens to express dissent in a democratic society. We’ve done everything we can to uphold these rights in our domestic courts, so now we’re taking this issue to the ECHR.” Our team, together with barristers of Garden Court Chambers, are assisting Friends of the Earth with their legal application to the ECHR. We are doing so as part of our pro-bono efforts. Wessen Jazrawi, partner at Hausfeld, said: “The significant increase in the use of such injunctions – and the stifling of protest which results – is extremely concerning, in particular because ordinary people who are concerned about climate change and who take to the street to protest are unlikely to know they may be in breach of an injunction and at risk of severe consequences such as prison, high fines or even asset seizure. We are proud to be assisting Friends of the Earth on this important application to protect our democratic rights and resist the increasing criminalisation of the right to protest.” Stephanie Harrison, barrister at Garden Court Chambers, said: “Friends of the Earth must be commended for their enduring commitment to defending the right to protest as a cornerstone of our democracy. Peaceful protest is vital to the success of environmental campaigning given the obvious need to continue to press the government and corporations to take the urgent action needed to protect the planet and local communities under threat in the UK and across the world from the climate crisis.” As well as its involvement in the Supreme Court legal challenge (above) Friends of the Earth has extensive experience of challenging these injunctions in the UK courts - particularly those taken out by fossil fuel companies. The environmental justice campaigners also intervened in a successful 2019 appeal against an injunction obtained by Ineos [3] and resisted UKOG’s injunction alongside six women known as the Sussex and Surrey 6 [4].  
28 October 2024
Press Releases

Multi-billion Google Ad Tech claim certified by UK Competition Appeal Tribunal

5 June 2024, London. The Competition Appeal Tribunal (CAT) today certified a £13.6 billion claim against Google over its alleged anticompetitive behaviour in “ad tech”, the various technologies behind online advertising, meaning it can now proceed to trial. The claim is brought by Ad Tech Collective Action LLP, led by Claudio Pollack, Charles Arthur and Kate Wellington. They allege that Google abused its dominant position in the ad tech market and caused significant loss to UK online publishers. Ad Tech Collective Action LLP sought the CAT’s approval to represent publishers on an opt-out basis. Google had submitted that the case should not be certified because it was insufficiently pleaded and lacked an appropriate methodology for the assessment of harm caused to publishers. In today’s judgment, the CAT dismissed Google’s arguments in full. The CAT held that Ad Tech Collective Action LLP had properly pleaded its case and had put forward a sound methodology to assess the value of the claims, and therefore authorised Ad Tech Collective Action LLP to act as the class representative and permitted the claim to proceed to trial. Following the CAT’s certification, Ad Tech Collective Action LLP will represent all UK-domiciled natural or legal persons that publish content on websites or mobile apps containing ad units in respect of which they received revenue from 1 January 2014 to 30 November 2022 unless they choose to opt out.  A smaller “opt-in” class of publisher partners (resellers) will also be represented. Google’s conduct in the ad tech market is under scrutiny in various jurisdictions.  In June 2021, the French competition authority concluded that Google had abused its dominant position in this market. Google did not contest the decision, accepted a fine of €220m and agreed to change its conduct. The UK Competition and Markets Authority, the European Commission and the US Department of Justice have also commenced investigations into or legal proceedings regarding Google’s conduct in ad tech. The CAT’s decision allows Ad Tech Collective Action LLP’s proceedings on behalf of UK online publishers to proceed in parallel with these major trials and investigations going on elsewhere. This means that UK victims of Google’s conduct continue to have real prospects of being compensated in a timely fashion for the harm they have suffered. Claudio Pollack, a partner of Ad Tech Collection Action LLP, said: “This is a decision of major importance to the victims of Google’s anti-competitive conduct in ad tech. Google will now have to answer for its practices in a full trial. I look forward to working with our legal and economic advisers to deliver compensation for the years during which the relevant markets did not provide a competitive outcome for the UK publishing market.”   Luke Streatfeild of Hausfeld & Co. LLP, Toby Starr of Humphries Kerstetter LLP and Damien Geradin of Geradin Partners Limited, who are leading the litigation on behalf of Ad Tech Collective Action LLP, stated jointly: “We welcome the decision by the Competition Appeal Tribunal to certify the claim brought by Ad Tech Collective Action LLP. Despite Google’s attempts to derail this necessary and timely action, the Tribunal has seen that the case is well-argued and provides a clear blueprint to trial. Google’s practices continue to cause significant damage to the UK media landscape. This unanimous certification judgment is a first step in delivering proper compensation to Google’s victims.”  Ad Tech Collective Action LLP has secured third-party litigation funding to bring the proposed claim and insurance in respect of Google’s costs of defending the claim, which means affected UK publishers will not pay costs to participate in this legal action nor will they have any financial risk in relation to Google’s costs. The full judgment  
28 October 2024
Press Releases

Supreme Court's landmark ruling for anti-sewage dumping campaigners

On 2 July 2024, the Supreme Court published its judgment in Manchester Ship Canal Company Ltd (Appellant) v United Utilities Water Ltd (Respondent) (No 2) [2024] UKSC 22. Hausfeld’s client,the Environmental Law Foundation (“ELF”), intervened in support of Manchester Ship Canal’s (“MSCCL”) appeal. In a landmark decision for environmental campaigners, the Supreme Court unanimously allowed MSCCL’s appeal and ruled that owners of watercourses can bring private law claims against sewage undertakers arising from sewage dumping, even if there has been no negligence or deliberate wrongdoing. The appeal forms part of long-running litigation about discharges of foul water contaminated with untreated sewage into the Manchester Ship Canal. MSCCL threatened to bring a claim against United Utilities (“UU”) for trespass and nuisance. UU asked the court to make a declaration that MSCCL had no right of action. The High Court agreed to make the declaration requested by UU. The Court of Appeal upheld the High Court’s decision. The Supreme Court was asked to decide whether MSCCL was able to bring a claim in nuisance and/or trespass when the canal is polluted by discharges of foul water from outfalls maintained by the sewage undertaker, UU. The implication of the judgments in the lower courts was that, absent an allegation of negligence or deliberate wrongdoing, no owner of any watercourse or body of water can bring any claim based on nuisance or trespass against any sewerage undertaker in respect of polluting discharges into the water, however frequent and voluminous the discharges may be, and however damaging they may be to the owner’s commercial or other interests or to the owner’s ability to use or enjoy its property. In view of that wider importance, the Supreme Court permitted ELF to make submissions as intervener. The Supreme Court unanimously allowed MSCCL’s appeal. The Supreme Court held that the Water Industry Act 1991 does not prevent MSCCL from bringing a claim in nuisance or trespass when the canal is polluted from discharges of foul water from UU’s outfalls, even if there has been no negligence or deliberate misconduct. Hausfeld have had a longstanding involvement with this case, initially representing a consortium of interveners, including ELF, in the Court of Appeal proceedings in March 2022. Wessen Jazrawi, Partner at Hausfeld, comments: “This judgment is significant, both for the vindication of the rights of riparian owners, but also for the message it sends to polluting water companies: that they can no longer pollute our waterways with impunity. We are delighted with the outcome and for our client, the Environmental Law Foundation, whose day-to-day work includes helping people and organisations deal with the fallout from such polluted waterways." The Hausfeld team consisted of Wessen Jazrawi and Hana Tawfik. The counsel team were Stephen Hockman KC of 6 Pump Court and Tom Cleaver of Blackstone Chambers. The full judgment  
28 October 2024
Press Releases

Clothing giant Lululemon hit with French complaint over greenwashing

PARIS — Just days before Canadian athletes don the company's apparel at the opening ceremony of the Summer Olympics, the official kit provider of Team Canada, Lululemon is facing legal challenges, as environmental advocacy organisation Stand.earth, files a first-of-its-kind complaint in France against the fashion retailer for greenwashing its products. Filed with the French Directorate General for Competition Policy, Consumer Affairs and Fraud Control (DGCCRF) on 24 July 2024, the complaint seeks a rescission of Lululemon’s ‘Be Planet’ advertising campaign. The claim is supported by global law firm Hausfeld & Co LLP as part of their pro-bono practice. Complaint regarding Lululemon “We are asking French officials to investigate how Lululemon can claim to ‘Be Planet’ while creating more planet-harming emissions every year than half a million cars,” Stand Executive Director Todd Paglia said. “Lululemon customers worldwide deserve to know the true impacts of the company’s climate pollution, not the greenwashed version it uses to sell products.” The complaint focuses on Lululemon’s Be Planet campaign, which Stand alleges makes numerous claims which give the general impression that Lululemon’s practices, products and actions avoid harming the environment, and instead contribute to “restoring a healthy planet". Stand alleges that these claims constitute a misleading commercial practice which is prohibited by the French Consumer Code, as amended by the ‘Anti-Waste and Circular Economy’ (AGEC) law and the ‘Climate and Resilience’ law. This complaint will mark the first test of the French Regulator's readiness for a wave of new European legislation. The EU passed a new greenwashing directive in February of this year and is developing a Green Claims Directive. This will require sustainability claims to be checked by an independent and accredited verifier and will include new rules on governance of environmental labelling schemes to ensure they are solid, transparent and reliable. The DGCCRF, which regulates greenwashing claims in France, investigated more than 1,000 businesses regarding greenwashing in 2021 and 2022, and found that one in four was in breach. Lululemon is one of the world's biggest fashion brands and an influential company. Through its ‘Be Planet’ campaign, Lululemon presents itself as a company whose actions and products contribute to a healthier environment and planet. Although Lululemon has taken some actions and set some targets to reduce the harmful impact of its business operations and products, Stand's position in its complaint is that Lululemon's business is inconsistent with its public claims to be an environmentally positive company. The French action comes less than six months after Stand’s filing of a similar complaint against Lululemon in its home country of Canada in February, which resulted in the Competition Bureau Canada officially opening an inquiry in April to investigate concerns that the apparel company misleads customers about its environmental impact. “We are seeing increasing interest in combatting greenwashing from NGOs and other stakeholders, such as investors, consumers and regulators,” said Simon Bishop, Partner at Hausfeld in London. “Demand for products and businesses which are sustainable and aligned with stakeholders’ values continues to rise and this can incentivise companies to claim to be more ‘green’ than they actually are. If this happens, such companies should be alert to the risk of litigation or regulatory investigations.” Additional information Fashion is a multi-trillion dollar industry responsible for producing of global greenhouse gas emissions, and those emissions are expected to drastically increase. The industry’s manufacturing processes disproportionately rely on coal and other fossil fuels, undermining climate stability while also causing a devastating impact on the health of supply chain workers and their communities. Fossil fuels enter the supply chain through synthetic fibers made from oil and fracked gas, the ongoing practice of burning coal for heat at garment factories, fashion manufacturers’ continued reliance on fossil fuels for electricity, and the heavy fuels required to transport their goods. According to the Apparel Impact Institute, the most important change brands can make to cut emissions is to transition their manufacturing to renewable energy. Stand.earth delivers large-scale solutions to climate and environmental problems worldwide. For more information, please visit their website. Hausfeld’s environmental team has a reputation for pioneering ground-breaking climate impact and ESG claims. We won the ‘Innovation in Sustainability & ESG’ award the FT Innovative Lawyer Awards in 2021.  
28 October 2024
Antitrust and Competition

Competition and labour markets: Competition authorities get to work

Over the past few years, competition authorities in Europe have increasingly grappled with the application of competition law to restrictive agreements and practices in the market for labour.For a summary, see our previous Perspectives here and here. Recent enforcement activity in Europe signals that the legal and economic theories of harm developed by competition authorities are now being put into practice across economic sectors. The theory: Anti-competitive behaviours in labour markets In guidance published on 9 February 2023, the CMA identified three main types of anti-competitive behaviour in labour markets: No-poach agreements: agreements between two or more businesses not to hire each other’s employees; Wage-fixing agreements: agreements between two or more businesses to fix employees’ pay or other benefits or renumeration; and Information sharing: where two or more businesses share information, such as terms and conditions offered to employees. The CMA noted that all three would constitute business cartels and further explained that these agreements do not need to be in writing and can cover freelancers and contracted workers as well as permanent salaried staff. In May 2024, the European Commission (“EC”) in a policy brief likewise confirmed that wage-fixing and no-poach agreements are by object infringements of competition laws. However, as noted by Sarah Cardell, Chief Executive of the Competition and Markets Authority, in a speech at the start of the year, despite this theoretical clarity, “labour markets are an area in which competition authorities have traditionally been less active.” That apparent lack of activity has now ended, with competition regulators in the UK and Europe putting theory into practice. Enforcement at EU level While the EC, in its policy brief, stated that anticompetitive issues in the labour market will often best be addressed at the national level due to the localised nature of labour markets, this has not stopped the EC from commencing its own investigations. On 23 July 2024, the EC announced that it has opened a formal investigation to assess whether Delivery Hero and Glovo, two of the largest online food delivery companies in Europe, breached competition law. In particular, the Commission is concerned that, prior to Delivery Hero's acquisition of sole control of Glovo, the companies may have entered into unlawful market sharing and information sharing agreements. The EC has also noted that it is concerned that the companies may have agreed not to poach each other's employees. This is the first investigation on no-poach agreements that has been formally initiated by the EC, which has stated that this investigation forms part of its efforts to ensure a fair labour market where employers do not collude to limit the number and quality of opportunities for workers but compete for talents. In announcing the investigation, Margrethe Vestager highlighted that such collusive conduct affects both workers as well as consumers: “Online food delivery is a fast-growing sector, where we must protect competition. This is why we are investigating whether Delivery Hero and Glovo agreed to share markets and not to poach each other’s employees. If confirmed, such conduct may amount to a breach of EU competition rules, with potential negative effects on prices and choice for consumers and on opportunities for workers.” Enforcement in EU member states The last 2 months have seen a number of developments across EU members states related to anti-competitive labour agreements, spanning across a variety of sectors: Portugal: A Portuguese technology consulting group is under investigation for allegedly having entered into no-poach agreements with competitors during the period of 2014 to 2021. On 27 May 2024, the Portuguese Competition Authority issued a Statement of Objection against two companies within the group. This follows an initial investigation related to no-poach agreements in March 2022 which addressed several companies, during which all but the remaining two groups cooperated and accepted fines in settlement ranging between €287,000 and €2,481,000. Belgium: On 3 July 2024, the Belgian competition authority fined private security providers Securitas, G4S and Seris over €47m in respect of a cartel affecting private security guards and the allocation of private security contracts. The anticompetitive practices lasted from 2008 to 2020 and included price fixing agreements, bid rigging, as well as no-poach agreements. The Belgian regulator noted that its decision “contributes to the development of a growing body of precedents in Europe that makes clear that such no-poaching practices are illegal by object under the competition rules.” Poland: On 8 July 2024, the Polish competition authority announced that it had opened an investigation into two Polish retail chains (Biedronka and Dino) together with transport companies serving the retailers, in respect of allegations of no-poach agreements in relation to drivers, potentially coordinated by the retail chains. The authority explained that the practices under investigation would have resulted in a “lack of flexibility for drivers to change jobs and a limitation on the growth rate of their wages.” Switzerland: On 11 July 2024, the Swiss Competition Commission (WEKO) announced that it will work with social partners, authorities and other interested parties to develop best practice guidance for competition compliance on the labour market. In a preliminary investigation opened in 2022, the authority found that more than 200 companies from various sectors regularly exchanged detailed information on wages, wage developments, fringe benefits and other working conditions. WEKO considered that it would be more effective to focus on establishing best practices, instead of commencing formal investigations. Lastly, following Portugal’s first no-poach antitrust decision in April 2022, a Portuguese court has requested a preliminary ruling by the European Court of Justice. The request asks the European Court of Justice to determine whether no-poach agreements between Portuguese football clubs in the First and Second Leagues during the 2019/2020 season, preventing players who unilaterally terminated their contract on the basis of issues caused by the pandemic, are to be interpreted as by object infringements. It will therefore be interesting to see whether the European Court will affirm the strong stance taken by the EC in its policy brief. Developments in the UK The CMA bolstered its intentions to address potential anti-competitive practices and cartels in the labour market by including ‘competition in labour markets’ as an area of focus in its 2024-2025 annual plan, noting that its ambitions are “not solely focussed on consumers, but also on competition in labour markets”. The CMA has launched two investigations into suspected anti-competitive behaviour in relation to the purchase of freelance services and the employment of staff in the broadcasting industry with one relating to the production and broadcasting of sports content and the other relating to television content excluding sports. Comment Now that competition enforcement agencies have commenced putting theory into practice, it is apparent that restrictive behaviour in the market for labour may affect a large variety of workers and employees across Europe, from professional football players, to truck drivers, security guards, and technology consultants. In its policy brief, the EC noted that labour markets in a number of members states are “moderately to highly concentrated” and that “[i]n this context, wage-fixing and no-poach agreements risk reinforcing that market power and cause harm to employees, while softening downstream competition and ultimately leading to higher prices and lower quality”. Accordingly, it is expected that the investigations discussed above mark only the start of a larger enforcement campaign. Authors: Aqeel Kadri, Lisa Mildt and Michael Zymler
28 October 2024

The Court of Appeal vindicates the use of joint expert evidence in competition claims

On 5 June 2024, the Court of Appeal delivered its judgment in PSA Automobiles SA v Autoliv AB [1], a landmark judgment concerning the reliance on joint expert evidence in multi-defendant competition cases.The appeal arose from a ruling by the Competition Appeal Tribunal (“CAT”) dated 2 November 2023 [2] that required the defendants in a cartel damages claim to instruct a single joint economic expert on the issues of overcharge, pass-on and financing losses, and a further judgment of the CAT dated 22 April 2024 [3] on the same issue. This judgment by the Court of Appeal vindicates the first cartel damages claim in which the CAT has ordered defendants to rely on the evidence of a single, joint economic expert on the issue of overcharge. Given the centrality of such evidence in all competition damages claims, the impact of the judgment is far-reaching: It reinforces the principle that judicial efficiency and proportionality can sometimes necessitate the use of joint experts, even in heavy and complex cases. It sets a precedent that is likely to simplify litigation processes in future competition cases, reducing the cost of legal proceedings, reflecting a pragmatic approach that aligns with broader trends in judicial case management, especially in the CAT. It presents practical advantages for claimants specifically, as the onus has now shifted to the defendants to demonstrate why multiple experts should be permitted. Defendants are likely to have to compromise on their choice of economist at the outset of proceedings and not always instruct their preferred firm, for example the one which may have assisted them in earlier regulatory proceedings. The judgment further holds that even the existence of a conflict of interest between defendants is at most a relevant factor but is not sufficient to rule out the use of joint experts in competition cases. Background The underlying proceedings brought by car manufacturer Stellantis involve a standalone claim for damages against the Autoliv and ZF/TRW groups (and formerly Tokai Rika), alleging a cartel among manufacturers of occupant safety systems (“OSS”), such as seat belts and airbags. The claim relies, in part, on two European Commission decisions [4] which identified cartels in relation to OSS components sold to car manufacturers other than Stellantis. The claim is due to go to trial for six weeks starting in October 2024. At a Case Management Conference in March 2023, the CAT raised for the first time the possibility of directing that the Defendants should call a single joint expert in the field of competition economics for the trial in October 2024, and made an Order to that effect on 15 May 2023. The CAT’s view was that it was highly unsatisfactory that the Claimants or the CAT should have to consider what would then have been three different economic models from what were then three distinct groups of Defendants. However, the CAT appreciated it had not heard full arguments on the issue and gave the Defendants liberty to apply against the Order. The Autoliv and ZF/TRW Defendants made that application, which was heard on 20 October 2023. The application failed and the CAT’s ruling was given on 2 November 2023. The main focus of the CAT’s ruling was on case management. The CAT noted the governing principles specified in rule 4 of the CAT Rules 2015, which provides that the CAT shall “seek to ensure that each case is dealt with justly and at proportionate cost”, and that the CAT will further take into account the principles and procedures in CPR Part 35 on expert evidence. In view of this, the CAT set out the following three factors impacting the approach to follow: Just and proportionate: when exercising its powers to limit expert evidence, the overriding consideration for the CAT is to ensure that the proceedings are dealt with justly and at proportionate cost. Material conflict of interest: to decide what is just, there must be a consideration of whether there is a real – and not merely theoretical – risk of a conflict of interest in relation to the issues for which expert evidence would be adduced. Complexity of the case: regard should also be given to the complexity of the proceedings, the potential for multiple and unreconciled expert opinions arising, and the expectation that better quality justice will be administered where disputes are appropriately focused and streamlined. Applying these factors to the case before it, the CAT refused the Defendants’ application to rely on separate economic experts. On 6 February 2024, permission to appeal the 2 November 2023 ruling was given by Popplewell LJ in relation to the concerns about material conflicts of interest, but refused on the separate ground that the Defendants’ rights of the defence (under Article 48 of the Charter of Fundamental Rights of the European Union) were engaged in determining the right of each Defendant to rely on its own expert. On 28 March 2024, the Claimants served their expert’s report. After these events, on 15 April 2024, the Defendants applied to the CAT to revisit the expert question in the light of these developments, asking for permission to rely on separate economic experts, albeit only on the issue of overcharge (as the Defendants had already agreed to instruct a single joint expert on the issues of pass-on and financing losses). The CAT similarly rejected that application in a ruling dated 22 April 2024, which the Defendants also appealed. Decision of the Court of Appeal The Court of Appeal unanimously upheld the CAT's two rulings, confirming that the CAT had acted within its discretion. However, the Court went much further than the test initially applied by the CAT and found that, on the matter to which the expert evidence is directed, even the existence of a material conflict of interest between the relevant parties is no ��trump card”, since CPR Part 35 encompasses claims in which single joint experts are appointed for both claimants and defendants, a situation in which there is a “manifest conflict of interest”. This is the case for instance in property valuation disputes where “the property in question is often the most contentious and crucial issue in the case”.[5] Accordingly, and in light of the expert’s overriding duty to the court, the Court of Appeal confirmed that the principles applicable to single joint experts are no different from the conventional case management approach of dealing with cases “justly at a proportionate cost, conditioned only but importantly by the duty to restrict expert evidence to that reasonably required to resolve the dispute.”[6] In the process, the Court distinguished UK Trucks Claim Limited v Stellantis NV & Others [7], which the Defendants had submitted as an authority for the proposition that, in the context of a collective claim, the existence of a conflict of interest between purchasers of new trucks and purchasers of used trucks necessitated the appointment of separate experts. However, the Court explained that the fundamental problem identified in UK Trucks was that the expert would be instructed by a single class representative (RHA) with “divided loyalty”. In other words, “the conflict of interest inside RHA was a key reason why a single expert instructed by that single organisation could not give evidence for both classes”, as opposed to any issue related to a conflict of interest between parties. [8] The Court also clarified the principles guiding such case management decisions, emphasising the importance of avoiding theoretical risks and focusing on real, substantive conflicts of interest. It noted that streamlined expert testimony could enhance the quality of justice by providing clear, comprehensive evidence without unnecessary duplication and complexity, and that indeed “the court or Tribunal is right and entitled to look at the matter from the point of view of the judges who will try the case, and not simply from the point of view of the parties.” [9] The Court observed that this point was made even more apparent when considering what the CAT was originally faced with in its ruling dated 2 November 2023, with one claimant group and three defendant groups, and therefore potentially six distinct sets of disputes on economic evidence as between (i) the claimants and the defendants’ individual experts, and (ii) between the defendants’ individual experts. Conversely, the CAT’s order of a single joint expert meant the CAT would only need to resolve “a single set of disputes …. between the approaches of the pair of modelling experts (one from the claimant and one from the defendants).”[10] The Court did however identify the following two narrow exceptions to the principles above: The Court acknowledged that, in “extreme” cases, if a single expert would “effectively disable” a party from prosecuting or defending its case, then separate experts would be required. However, Court thought this situation would not be a common one.[11] The Court agreed that, if there were more than one school of thought on the relevant field of expertise, then separate experts may be permitted. However, such difference in approach would need to be “very different from the kinds of differences of opinion one sees with expert evidence generally.”[12] In other words, a difference in opinion on data points to put into an econometric model is not enough. Comment This judgment sets a crucial precedent that may streamline future competition law cases, potentially reducing litigation costs and procedural delays. The decision rebuts the notion that separate expert testimony is a default right, and places the onus on defendants to demonstrate the necessity for multiple individual experts. The impact of this judgment is accordingly not limited to competition claims, and sets an important precedent for civil litigation as a whole, in respect of any case where expert evidence is likely to play a key role. The Court of Appeal’s emphasis on efficiency and proportionality aligns with broader trends in private enforcement, reflecting a pragmatic approach to complex economic evidence. For claimants, the ruling simplifies the litigation landscape, offering a simpler path to proving their claims without the procedural hurdle that reconciling or responding to multiple conflicting expert reports typically entails. For defendants, the ruling means they will likely have to compromise with respect to their preferred economists at the outset of a competition case. It implies that even contribution proceedings between defendants, might not present enough of a conflict of interest to justify departing from the use of joint experts in competition cases. Authors: Tom Bolster and Charles Laporte-Bisqit Footnotes [1] [2024] EWCA Civ 609. [2] [2023] CAT 66. [3] [2024] CAT 27. [4] AT.39881 – Occupant Safety Systems supplied to Japanese Car Manufacturers and AT.40481 – Occupant Safety Systems (II) supplied to the Volkswagen Group and the BMW Group. [5] [2024] EWCA Civ 609, paragraphs 49-50. [6] [2024] EWCA Civ 609, paragraph 58. [7] [2023] EWCA Civ 875. [8] [2024] EWCA Civ 609, paragraph 55. [9] [2024] EWCA Civ 609, paragraph 57. [10] [2024] EWCA Civ 609, paragraph 67. [11] [2024] EWCA Civ 609, paragraph 61. [12] [2024] EWCA Civ 609, paragraph 63.    
18 September 2024

Court of Appeal endorses collective proceedings for businesses

On 8 March 2024, the Court of Appeal refused applications by Mastercard and Visa for permission to appeal a decision by the Competition Appeal Tribunal (“CAT”) in CICC,[1] confirming that business claims may proceed under the collective proceedings regime rather than as individual claims. Background In its judgment of 8 June 2023 in CICC, the CAT refused to certify an application by CICC I and CICC II, the proposed class representatives, (the “PCR”) which seek to bring collective proceedings on behalf of merchants against Mastercard and Visa alleging that certain multilateral interchange fees applied in payment schemes infringed competition law causing financial losses to the merchants. Certification was refused by the CAT on the basis that the applications were insufficiently focused and the PCR had not advanced a sufficient methodology or analysis on key issues to allow the CAT properly to assess whether the applications were suitable for collective proceedings.  However, it considered that the members of the class might in fact have a claim which was generally well suited to collective proceedings, rather than individual claims, and gave the PCR an opportunity to present revised proposals in order to remedy the defects.  Mastercard and Visa sought to appeal, arguing that the CAT erred in law by holding that individual claims were not more suitable than collective claims. Mastercard and Visa’s Arguments The PCR proposed opt-in proceedings for merchants with a turnover of more than £100m and opt-out proceedings for smaller merchants.  Mastercard and Visa argued that the size and sophistication of the class members as well as the value of individual claims was highly relevant to the question of whether collective proceedings were more suitable than individual claims.  They argued that the opt-in class comprised large undertakings and that many of them had substantial claims including around 70 with a claim of at least £3.65 million.  This together with the existence of prior claims that were litigated and settled, demonstrated that individual claims were realistic and viable.  In relation to the opt-out class, which comprised smaller merchants, Mastercard and Visa argued that the ongoing MIF Umbrella Proceedings demonstrates that it is practicable for smaller class members to sue in their own names, in particular by joining the claims of other larger merchants.  Further, they submitted that certification would deprive opt-out class members of their individual freedom of choice to sue and settle in their own right, rather than being corralled into group litigation. Decision The Court of Appeal refused permission to appeal.  It concluded that the CAT had acted within its legitimate discretion, and made four observations about the breadth of discretion to be accorded to the CAT in matters of case management: The CAT’s case management decisions are exercises in pragmatism and the CAT has an increasing well of experience in the weighing up exercise relevant to the choice between opt-in and opt-out proceedings. The Court of Appeal will not interfere simply because it might have drawn a different conclusion from the weighing exercise. The statutory test for certification requires the CAT to form its own view on the factors relevant to suitability. It is not required to explore every argument raised by the parties. There is inherent uncertainty in case management decisions of this sort, which require the CAT to “crystal ball gaze” and consider how the litigation will unfold. The CAT is required to use its judgement and experience to take the best decisions that it can based upon the information available to it. It is not a valid criticism to point to alternative solutions and contend that they “would” be preferable. The statutory test does not attach greater or lesser weight to any particular consideration in the suitability exercise: “For example, it is not the case that because individual natural or legal persons could bring individual proceedings, this is dispositive against collective proceedings”. The Court concluded that the core matters relevant to the CAT’s discretion are “the procedural benefits and disbenefits of different types of proceedings; the ease with which proposed class members, or subsets thereof, could commence individual proceedings; costs; and the ease and ability of the Tribunal, in the future, to manage and administer the litigation.” The Court reiterated that “this was a judgment by a Tribunal whose task is to handle and administer exceedingly complex litigation raising novel and knotty problems about which the Tribunal has a growing and highly specialised body of experience. This Court will be very slow to interfere with this sort of evaluation”.  In this case, the Court was clear that the CAT acted within its legitimate discretion. In considering the arguments put forward by Mastercard and Visa, the Court considered that the real motivation in seeking permission to challenge the CAT’s decision was likely to be that Mastercard and Visa considered that individual proceedings would be more difficult to mount and therefore fewer claims would be brought against them.  However, this conclusion “tends to support, not undermine, the analysis of the CAT which pointed out that collective proceedings were a better way of vindicating the claims of the affected merchant class, than individual claims”. Impact The Court’s judgment is a clear statement of support for the CAT’s broad case management powers, confirming that there is relatively limited scope for case management decisions to be challenged on appeal.  It is also an important endorsement of the collective action regime as suitable for claims by businesses. Authors: David Lawne and Jamie Nicolaides Footnotes [1]Visa Inc and Others v Commercial and Interregional Card Claims I Limited & Commercial and Interregional Card Claims II Limited; and Mastercard Incorporated and Others v  Commercial and Interregional Card Claims I Limited & Commercial and Interregional Card Claims II Limited; [2024] EWCA Civ 218.
18 September 2024

AG Kokott recommends upholding the €2.4 billion fine imposed on Google in relation to Google Shopping

On 11 January 2024, Advocate General (AG) Kokott delivered her Opinion [1] on Google’s [2] appeal to the Court of Justice in relation to Google Shopping [3]. The Opinion is the latest judicial assessment of the legality of Google’s self-preferencing conduct which was found to be abusive by the European Commission in its 2017 fining Decision [4]. The AG recommended that the Court of Justice should dismiss Google’s appeal and uphold the findings of the General Court and European Commission. If the AG’s Opinion is followed by the Court of Justice, it will provide clarity on the application of Article 102 TFEU to tackle anti-competitive conduct in digital markets. Background On 27 June 2017, the European Commission adopted the Google Search (Shopping) Decision in which it found that Google had abused its dominant position as a search engine by giving more favourable positioning and display in its search results to its own comparison shopping service (Google Shopping) as compared to competing services. The European Commission fined Google €2.4 billion, a record fine at the time. Google appealed that decision to the General Court which largely dismissed Google’s appeal [5]. Google subsequently appealed the General Court’s judgment to the Court of Justice and the hearing took place on 19 September 2023. The Opinion At the outset, AG Kokott highlighted that the legal questions in this case are “of great legal and practical importance"[6] as they grapple with the conditions under which a difference in the treatment of competitors by a dominant undertaking can be classified as an unlawful abuse as well as with what the European Commission must show to establish such an infringement of competition law. Self-preferencing The AG noted that this is the first case where unequal treatment by a dominant undertaking through self-preferencing has been expressly classified in case-law as an abuse of dominance within the meaning of Article 102 TFEU [7]. The AG considered that whilst the “defining example” under Article 102(c) refers mainly to discrimination between different trading partners or competitors of the dominant undertaking, it is settled case law that the list of abusive practices set out in Article 102 TFEU is not exhaustive [8]. Therefore, forms of unequal treatment that are similar to, and as harmful as, the example in article 102(c) TFEU may also be classified as an abuse [9]. Part of Google’s appeal was premised on the argument that self-preferencing could only constitute an abuse of dominance if it fell within the strict criteria set out by the Court of Justice in Bronner [10], which concerned a refusal to grant access to an essential facility. The AG rejected Google’s argument and stated that the Bronner criteria should be applied within narrow limits and “only to comparable cases of refusal of access or supply” [11] and that in the present case “there is no refusal of access or supply within the meaning of the Bronner criteria”[12]. Accordingly, the AG found that the General Court’s conclusion that the European Commission was not required to apply the Bronner test was correct, as it was not the relevant test in the circumstances. In the AG’s view, Google’s self-preferencing constitutes an independent form of abuse through the application of unreasonable conditions of access to competing comparison shopping services, provided that it has at least potentially anticompetitive effects [13]. As-efficient competitor test As a further ground of appeal, Google argued that the European Commission had a duty to examine whether the alleged practices were capable of driving an existing or hypothetical as-efficient competitor from the market under the “as-efficient competitor test”. It argued the Commission had failed to apply such a test in the present case. The AG however agreed with the General Court’s finding that the European Commission was not under an obligation to apply the “as-efficient competitor test” to support a finding that restrictive effects on competition were present, and noted that the test “is not generally applicable, let alone an essential prerequisite”[14] for determining whether a dominant undertaking’s conduct is abusive. The Opinion clarifies that applying this test only makes sense in respect of a price-related practice, and that its application should not be extended to non-price practices such as those at issue in the present case [15]. In the AG’s view, the European Commission was therefore required to demonstrate only potential restrictive effects on competition and, as such, it is immaterial whether Google’s product search engine was more efficient than those of its competitors [16]. Comment While the Opinion is not binding on the Court of Justice, it is significant given that, if followed, it will confirm the reasoning of the General Court in upholding the European Commission’s decision and Google’s liability for its self-preferencing conduct will become final. Moreover, a ruling in line with the Opinion's reasoning would offer clarity to regulators navigating anti-competitive conduct in digital markets. It would provide a framework for formulating decisions under Article 102 TFEU, thereby addressing abusive conduct more effectively. It would also confirm that Article 102 TFEU has the flexibility to encompass a wide range of anticompetitive conduct, including in novel, fast-paced technology markets. Such a ruling would also have wider implications for the enforcement of abuse of dominance cases in the EU by likely emboldening regulators to adopt further decisions based on the Court’s findings. It would also provide reassurance to those affected by abuses of dominance in these markets that the law is developing to enable effective action by regulators. Hausfeld (London and German teams) represented Foundem, VDZ, BDZV and Ladenzeile (formerly, Visual Meta) in their interventions in support of the European Commission before the General Court and the Court of Justice. Authors: Tom Bolster, Stella Gartagani and Dexter Stevens Footnotes [1] C-48-22, Opinion of Advocate General Kokott dated 11 January 2024, ECLI:EU:C:2024:14. Available here. [2] Google LLC and Alphabet Inc. [3] Google’s appeal challenges the findings of the General Court on Google’s appeal of the Google Search (Shopping) Decision adopted by the European Commission on 27 June 2017. [4] European Commission’s Google Shopping Decision C(2017) 4444 final (Case AT.39740 – Google Search (Shopping)). See information on our current claims relating to the Google Shopping Decision here: Hausfeld | Google Shopping decision. [5] General Court’s Judgment T-612/17, EU:T:2021:763. See also our News, Perspectives and Competition Bulletin articles relating to the General Court’s decision: Hausfeld | General Court dismisses Google’s appeal of the Google Shopping Decision; Hausfeld | The Google Shopping decision and whether digital platforms can constitute essential facilities; and Hausfeld | EU Shopping judgment: what does equal access to Google general results pages mean? [6] AG’s opinion, paragraph 2. [7] AG’s opinion, paragraph 71. [8] AG’s opinion, paragraph 76. [9] AG’s opinion, paragraph 76. [10] Case C-7/97 Oscar Bronner GmbH & Co. KG v Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG, Mediaprint Zeitungsvertriebsgesellschaft mbH & Co. KG and Mediaprint Anzeigengesellschaft mbH & Co. KG. ("Bronner"), EU:C:1998:569. [11] AG’s opinion, paragraph 81. [12] AG’s opinion, paragraph 91. [13] AG’s opinion, paragraph 90. [14] AG’s opinion, paragraph 196. [15] AG’s opinion, paragraph 190-191. [16] AG’s opinion, paragraph 190.
18 September 2024
Commercial and Banking

High Court considers novel “retrieval duty”: will this extend banking liability beyond Quincecare?

The recent High Court decision in CCP Graduate School v NatWest and Santander [2024] EWHC 581 (KB) is the first judgment discussing the Quincecare duty owed by banks since the Supreme Court’s decision in Philipp v Barclays Bank UK PLC [2023] UKSC 25.In CCP v NatWest and Santander the High Court considered the novel question of whether and to what extent the Defendant banks had a duty to retrieve funds which the Claimant alleged had been dissipated as a result of authorised push payment (“APP”) fraud. Whilst certain elements of the claim were struck out, the High Court refused summarily to dismiss the claim against Santander. Background Our previous Perspectives [1] on the evolution of the law around the Quincecare duty include a description of the background to the previous cases, and their appellate history. In this case, the relevant payments were made between 13 September and 12 October 2016.  The Claimant, acting through its sole director Mr Pathirana, instructed NatWest (the first Defendant) to make fifteen payments to a bank account held with Santander (the second Defendant). The Claimant believed the payments, totalling £415,909.67, were being made to PGW Limited. For each transaction, the Claimant provided NatWest with the sort code, account number and the payee reference: “PGW limited”. The Santander account holder was ultimately discovered to be PGW Consultants Limited. The Claimant alleged that it was unaware that the Santander account was under the control of a criminal gang at the time at which the payments were made. The Claimant’s case was that the criminal gang had deceived the Claimant into instructing NatWest to transfer the funds into the fraudulent Santander account on the false basis that the funds would be applied as investments by PGW Limited. By 22 October 2016, the Claimant had notified NatWest of the potential fraud in relation to the payments. NatWest notified Santander on the same day. The funds had however been dissipated and were lost, with only £14,000 being retrieved. The Claimant argued that NatWest breached its duty of care by carrying out the payment instructions without taking steps to prevent fraud in accordance with the Quincecare duty. It was also alleged that Santander had failed in its duty of care by allowing the transferred funds to be removed from the account. ​ Decision Claims against NatWest NatWest had argued that these claims had been issued out of time and therefore should be struck out. The last payment left NatWest on 12 October 2016 and the claim, having been issued on 18 October 2022, had been brought outside of the limitation period. The Claimant argued that the limitation period had been extended under s32(1)(c) of the Limitation Act 1980, which allows relief from the consequences of mistake. The Claimant’s position was that it only discovered on 22 October 2016 that it had been a victim of APP fraud, and the claim was an action for relief in respect of that mistake. The Court rejected that argument as an extension under this ground is only available where mistake is an essential element of the cause of action. This was not so in the present case. The Court therefore struck out the claim against NatWest in respect of allowing the payments to be made. The Court then considered the alternative basis to strike out the claim, based on the Quincecare duty and the Supreme Court’s decision in Phillipp. NatWest argued that the payments were authorised by the Claimant and made in accordance with its instructions. The Court restated the established position in relation to APP fraud in circumstances such as this: “Where a bank’s customer is the victim of an APP fraud, the bank’s duty to exercise reasonable care and skill is not engaged unless there are doubts as to the validity of the customer’s instruction.” [2] The Claimant argued that NatWest had a duty to exercise reasonable care and skill when carrying out the payment instructions and that this required NatWest to refuse to carry out those instructions. However, the duty “only arises where the validity or content of the customer’s instruction is unclear or leaves the bank with a choice about how to carry out the instruction” [3]. The Claimant argued that its instructions were equivocal in that they referred to PGW Limited not PGW Consultants Limited and that in actioning these payments NatWest was in breach of mandate. The Court highlighted that the claim had not been pleaded as a breach of mandate and should therefore be summarily dismissed for being defective as a matter of law or otherwise. On the question on whether NatWest owed the Claimant a duty to take reasonable steps to retrieve or recover the sums paid out as a result of the APP fraud (the “retrieval duty”), the Claimant argued that the bank had been put on notice of matters which called for investigation and immediate action. As a result of this notice, NatWest, acting as a reasonably prudent banker, should or would have immediately contacted Santander and either sought recall of those payments or warned Santander that there were strong grounds for suspecting criminality and to not allow the funds to leave the Santander account. It was argued that appropriate indemnities should have been given as required. The Claimant pointed out that Lloyds Bank had identified that large sums from the Santander account had been paid into an account held with Lloyds, and made attempts to retrieve the money when notified of the suspected fraud. It was argued that NatWest could have done more to prevent the dissipation of funds once the bank had been put on notice. Although the Court noted that a bank could have offered an indemnity to the bank receiving funds suspected of fraud to prevent any further dissipation of funds, the Court found that this proposed amended pleading did not arise out of the same or substantially the same facts as the originally pleaded claim, so that the proposed amendment had to be summarily dismissed. Claim against Santander Despite finding that no Quincecare duty existed between Santander and the Claimant, the Court refused to dismiss the claim based on the retrieval duty against Santander. It was found that there may be some basis for arguing that Santander could have taken steps to retrieve the funds once Santander had been notified by NatWest, drawing on the comparison with the actions of Lloyds bank once it had been notified. Further, at the time at which the claim was issued, some of the Claimant’s funds remained in the Santander account, which meant the relevant part of the claim was not time barred. Comment The legal landscape in this area is in a state of flux and this is a significant decision. The courts’ willingness to allow victims of APP fraud to use the retrieval duty as an alternative route to recover funds is yet to be fully tested. Until cases such as this proceed to a trial dealing with not only the appropriateness of such a duty, but also the scope of it, victims of APP fraud will need to rely on the existing Quincecare line of cases. Importantly, however, this decision does leave open the possibility for the courts to extend duties owed by banks to their customers and the final outcome of the case will be closely watched. The Payment Systems Regulator has recently taken action to assist victims of APP fraud through the introduction of a new mandatory reimbursement requirement which comes into force on 7 October 2024. The new rules require payment service providers to reimburse victims of APP fraud meeting certain criteria, such as the payments having occurred in the UK and not exceeding £415,000. APP fraud often involves sums far larger than this upper limit and can involve international accounts, so it is clear that APP fraud claims will continue to make their way through the courts. Authors: Ned Beale and Deminca Nettleford Footnotes [1] Quincecare duty of care not confined to companies and agents, Privy Council rejects extension of Quincecare duty of care and The Supreme Court determines the Quincecare duty’s capacity [2] [24] [3] [63]    
18 September 2024

Test for appropriateness of multiple claimants commencing claim under single claim form, simplified

The Court of Appeal has recently refused to strike-out a negligence claim brought by multiple  claimants against their former solicitors that was commenced under a single claim form. The judgment in Morris v Williams & Co Solicitors [2024] EWCA Civ 376 is a welcome clarification of the test for when it is appropriate for multiple claimants to commence a claim in such a way. The decision will be good news for large claimant groups with common issues and has superseded the earlier more prescriptive decision in Abbott v Ministry of Defence [2023] EWHC 1475 (KB), [2023] 1 WLR 4002. Background This case concerns 134 claimants who are bringing a claim against their former solicitors in relation to negligent advice regarding their investments in 9 separate property development projects promoted by the same group of companies. The claimants contended that the defendant solicitors failed to warn of the risks of completion of the developments not taking place, and of the dissipation of their investment deposits in the meantime. All the claimants commenced their claim on a single claim form. The defendant solicitors applied to strike out the claim form on the basis that making the claim in this way was either an abuse of process or an obstruction to the just disposal of the proceedings. The defendant also contended that the claim form did not comply with CPR Part 7.3 which provides that “a claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings”. The High Court dismissed the defendant’s application to strike out the claim form. In doing so, the Court applied the test for convenient disposal which had been formulated in the earlier case of Abbott. We covered the initial decision in Abbott in a previous Perspective. Abbott was subsequently appealed from the Divisional Court to the High Court (with no right of appeal to the Court of Appeal), where the High Court determined that it will be convenient to dispose of all claims brought on a single claim form if the ‘real progress’ test is met. In the Abbott case, the High Court had decided that the test will be met where there are likely to be common issues of sufficient significance that the determination of those common issues would constitute real progress towards finally determining each claim in a set of claims. In Morris v Williams & Co Solicitors, the defendant solicitors then appealed the High Court’s decision to the Court of Appeal. Decision The Court of Appeal emphasised the importance of the wording both of CPR 7.3 and of CPR 19.1, which provides that “any number of claimants or defendants may be joined as parties to a claim”. The Court found that it was clear that a reference to “a claimant” under CPR 7.3 could be read under s 6(c) of the Interpretation Act 1978 as including the plural, and that in the context of CPR 19.1 “a claim” meant “proceedings” rather than “a cause of action”. The Court also found that none of tests as set out in Abbott were appropriate and instead, held that CPR 19.1 and 7.3 must be “construed as meaning what they say: any number of claimants or defendants may be joined as parties to proceedings, and claimants may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings”.  With that in mind, the Court held that what is convenient must be determined according to the facts of each case. The Court noted that the matters considered in Abbott could be relevant to whether it was convenient to bring claims in a single claim form, but the relevant factors would vary depending on the case.  Accordingly, the Court of Appeal determined that there is no exclusionary rule of real progress (where there are significant common issues amongst the claims which, once determined, would constitute real progress towards final determination), real significance (whether there is sufficient commonality for a decision to be made of real significance for all the rest) or otherwise and that the court will determine what is convenient according to the facts of every case. Many matters will be relevant to that question. In the present case, the Court did not accept that it was inconvenient or unfair for the claimants’ claims to be grouped together in one claim form. The Court did, however, accept that defendants to group actions initiated by a single claim form may face potential unfairness in the absence of active case management.  However, the Court commented that “every possible step should be taken in such a situation to ensure that each claimant’s case is properly explained so that the defendant knows the case it has to meet, and so as to facilitate early dispute resolution.” The Court of Appeal accordingly declined to strike-out the claims against the defendant solicitors, allowing the 134 claimants to proceed to bring their claims on a single claim form. Comment This important decision will be welcomed by large groups of claimants wishing to pursue their claims together.  Instead of having to satisfy the requirements previously promulgated by the Abbott decision, claimants will simply need to satisfy the Court that it is convenient for their claims to be heard together, in accordance with the plain English meaning of the word. Claimant groups may wish to pursue their claims together for a vast variety of reasons, with costs being the most obvious. This judgment will accordingly allow better access to justice for future claimants who may not otherwise be able to pursue their claims. Authors: Lucy Pert and Chantal Ottow
18 September 2024

Time for consumer law reform in relation to online contracts

The Court of Appeal recently handed down its judgment in Parker-Grennan v Camelot UK Lotteries Ltd [1], dismissing Ms Parker-Grennan’s appeal against the High Court decision which had rejected her claim to a £1 million online gaming prize. This case was the first time that the Court of Appeal grappled with how standard contract terms are incorporated into consumer contracts concluded online and the judgment has implications for all online contracts where one party seeks to have its terms incorporated by requiring the other party to tick a box. Background A fuller explanation of the background to this case is set out in our previous Perspectives here. In summary,  Ms Parker-Grennan’s long running legal battle with Camelot started when she played an online “instant win” lottery game on the National Lottery website (which was operated by Camelot). Upon opening her online account, Ms Parker-Grennan clicked ‘confirm’ to agree to the terms and conditions of the website (which was a link at the bottom of the page that led to the small print, with hyperlinks to other terms) and played the game. As a result of a software error the game’s animations appeared to show she had won £1m, but when she clicked ‘finish’ to complete the game the screen showed she had only won £10. Having taken a screenshot of the result, Ms Parker-Grennan subsequently issued a claim against Camelot for £1m. This was on the basis that some of Camelot’s terms and conditions had either not been incorporated into her contract with them or were unenforceable. Ms Parker-Grennan’s claim was rejected by the High Court and she then appealed to the Court of Appeal. Issues The key issues addressed by the Court of Appeal were whether: the website terms were incorporated in the contract (the “Incorporation Issue”); if so, were any of those terms rendered unenforceable by the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR) (the “Enforceability Issue”); and whether, on a proper construction of the contract, the correct prize was £1m or £10? (the “Construction Issue”). On all three issues the Court of Appeal agreed with the High Court’s findings and the appeal was dismissed. The Incorporation Issue The Court noted that for website operators, there is an ongoing dilemma, which is how to bring terms and conditions sufficiently to the attention of a prospective customer to incorporate them in the contract, without testing the customer’s patience so much that it decides to take their custom elsewhere. The Court stressed that when considering incorporation, the question is not whether the operator has done “everything in its power” to try to make the other party read the terms, as “one cannot force someone to read the terms and conditions if they cannot be troubled to do so”. Instead, the operator only needs to take reasonable steps to bring the terms  to customers’ attention and give them sufficient opportunity to read them. Whether or not such reasonable steps have been taken will be a matter of fact. In this case, Ms Parker-Grennan had argued that customers should be forced to scroll through the terms before being able to click “accept”. However, the Court found that this was more likely to cause the player to give up or scroll to the end and accept without reading the terms. It was noted that the click-wrap procedure (with the use of hyperlinks and drop-down menus) can be sufficient for consumers to be informed of the relevant contractual terms and be bound by them, but that this will not be true for every online consumer contract. In this case, Camelot had taken reasonable steps to bring the terms to Ms Parker-Grennan’s attention and had given her sufficient opportunity to read them. Relevant considerations included that the first screen that was displayed on opening her online account showed that there were terms and conditions relating to her gaming account, as well as specific terms relating to the type of game she had played and that there were also ‘Game Procedures’ for each individual game. She was invited to read the changes to the terms and asked to confirm that she accepted the updated terms, which could be easily accessed either by hyperlink or drop-down menu. The website terms had accordingly been incorporated into Ms Parker-Grennan’s contract with Camelot. The Enforceability Issue The UTCCR applied in this case (although these have now been superseded by the Consumer Rights Act 2015). On the issue of enforceability, the Court therefore had to consider if, contrary to the requirement of good faith, there was any term which caused “a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer” (Regulation 5(1) of the UTCCR). The Court decided that there were no terms of this nature and that, accordingly, the terms were enforceable. The Construction Issue Having concluded that Ms Parker-Grennan was aware of the contractual terms and that the terms themselves did not contain any provisions that were onerous or unusual, the Court had to decide the true meaning of the terms. The Court determined that, on a proper interpretation of all the terms, it was only the amount shown on the final screen display (i.e. the £10 prize) that was conclusive as to the amount won by anyone playing the game. The Court noted that this should have been obvious to a player even without reading the game procedures. Comment This is an important decision where the issue of incorporating contractual terms into online consumer contracts has reached the Court of Appeal for the first time. The judgment highlights that cases of this kind will inherently involve the tension between website operators' drive to publish their terms and conditions in a way which maximises profitability and the consumers' need to access and understand them. In this judgment the Court applied the conventional rules for incorporating contractual terms which were developed in the pre-digital age. However, the Court aptly noted that in an era where overlooking the 'small print' has become a “fact of life”, the law may benefit from greater clarity or reform, suggesting that the Law Commission now revisit this area of law. We agree that the time is ripe for the Law Commission to step in to ensure that our laws evolve with the digital age, providing adequate protection for consumers. While the outcome of this case may seem fair, the underlying reasoning could pose risks of injustice, particularly considering the power imbalance and the widespread lack of attention to the small print, as acknowledged by the Court. Authors: Lucy Pert and Chrysanthi Bampali Footnotes [1] Ms Parker Grennan v Camelot UK Lotteries Ltd [2024] EWCA Civ 185  
18 September 2024

UK signs up to more widely enforceable judgments

The UK Government has this month signed up to the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (“Hague 2019”).This blog post looks at the likely impact of Hague 2019 for parties in the English courts and what that means for the future of London as a dispute resolution centre. Background As a result of the UK’s departure from the EU, the Brussels I Recast Regulation 1215/2012 and Lugano Convention 2007, which set out clear rules for (i) the recognition and enforcement of judgements and (ii) determining the appropriate jurisdiction for a dispute, ceased to apply. Enforcement of English court judgments in other jurisdictions has been less straightforward in the post-Brexit landscape and while many judgments of the English courts have remained enforceable in EU member states, considerable uncertainty has remained. Hague 2019 framework Hague 2019 aims to provide a global framework of common rules to facilitate the recognition and enforcement of judgments from one jurisdiction to another. The Convention aims to provide a uniform approach to recognising and enforcing judgments, in order to minimise litigation costs and risks associated with cross-border dealings and the potential conflicts of domestic laws between jurisdictions when disputes arise. States that have ratified Hague 2019 have a positive obligation to recognise and enforce judgments from other convention states, according to a common set of rules. Recognition or enforcement may only be refused in the limited set of circumstances set out in Article 7 of the Convention, which include fraud and a public policy exception, for example. Hague 2019 has already been signed and ratified by the EU (with the exception of Denmark), Ukraine and Uruguay. A number of non-EU countries, including the United States and Russia, have signed the Convention but are yet to ratify. A wide range of judgments are covered by Hague 2019, which applies to the recognition and enforcement of judgments in civil or commercial matters, including consumer and individual employment contracts. However, the Convention does not cover certain types of judgments, including certain maritime matters, family law, insolvency, defamation, privacy or intellectual property. Competition judgments are outside the scope of the Convention, except where the judgment is based on an anti-competitive agreement or concerted practice where both the relevant conduct and its effect occurred in the state where the judgment originated. Entry into force Having announced the UK’s intention to join Hague 2019 on 23 November 2023, the UK Government then swiftly signed the Convention, on 12 January 2024. The necessary legislation and court rules will shortly be drafted by the UK Government, so that the Hague Convention can operate within the UK’s legal framework. Under Article 28, Hague 2019 will enter into force for the UK 12 months after ratification, which means entry into force is likely to occur by the middle of 2025. The Convention will apply to English court judgments handed down in proceedings after the Hague Convention has been ratified. Impact of Hague 2019 Since the UK’s withdrawal from the EU, enforcement of many judgments has continued to be possible in EU member states, under the 2005 Hague Convention on Choice of Court Agreements. However, contracting parties have nonetheless been left in a state of some uncertainty, as the 2005 Hague Convention did not apply to non-exclusive or asymmetric jurisdiction clauses and also excluded a number of types of litigation, including employment and consumer cases. By contrast, under Hague 2019 English judgments can be enforced even where the contract in question did not contain an exclusive jurisdiction clause, including situations where one party has a choice of bringing an action in a range of courts. Unilateral or one-way disputes clauses are often used in finance transactions, where it is common for a lender to require that the borrower agrees a clause allowing the lender to choose between a range of jurisdictions when bringing an action. In addition, while there are exclusions, Hague 2019 applies to a wider range of proceedings, including employment disputes and consumer matters. Comment The UK joining Hague 2019 is clearly a welcome step, which further strengthens the international appeal of London as a dispute resolution centre. While many English court judgments have been enforced in EU member states in recent years, the enforcement landscape after the UK’s departure from the EU was nonetheless characterised by some remaining complexity and uncertainty. The advent of Hague 2019 ensures that a broader range of parties in the English courts will benefit from recognition and enforcement of judgments, even where there is a non-exclusive or asymmetric jurisdiction clause. Once in force, Hague 2019 will greatly benefit both businesses and consumers litigating in the English courts and provide legal certainty for parties engaging in cross-border transactions, promoting international trade and investment. Increased certainty in relation to enforcement is in turn likely to further increase the attractiveness of London to parties across the world. London has long been a forum of choice as a result of the quality of the courts, legal expertise and the flexibility and predictability of the common law and London’s reputation as a disputes hub will be further enhanced by this important development in relation to enforcement. With special thanks to Julia Vincent for their invaluable assistance in drafting this article. Author: Rebecca Warder   
18 September 2024

ECtHR rules on three landmark cases addressing governments’ (in)action on climate change

On 9 April 2024, the Grand Chamber of the European Court of Human Rights (“ECtHR”) delivered highly anticipated judgments in three important cases. The applicants in these cases argued that the European Convention on Human Rights (the “ECHR”) requires governments to take more action to address the harms caused by climate change. The ECtHR found a violation of human rights in one case but ruled that the other cases were inadmissible. Despite the mixed outcome, the ECtHR’s findings mean that governments must address climate change to ensure the protection of fundamental rights under the ECHR. Background The rights and obligations enshrined in the ECHR have been cited in environmental and climate litigation cases for many years. While the ECtHR has ruled that localised environmental harm breaches the ECHR – for example, pollution from an industrial plant in Cordella v Italy – the question of how the effects of climate change should be understood in relation to ECHR rights remained a contested issue. Over several years, claimants in domestic courts have sought to rely on Articles 2 (the right to life) and 8 (the right to respect for private and family life), and the doctrine of positive obligations (the duty on States to take active measures to prevent rights breaches), to argue that national governments were obliged to do more to prevent climate change. In bringing these cases, claimants have had to challenge arguments that climate change is a collective action problem and demonstrate that there is a sufficient (factual and legal) causal link between climate-associated harm and government inaction. This was the essence of the arguments in the three cases in Strasbourg. The ECtHR agreed to expedite the cases by granting them priority status and referring them to the Grand Chamber (a move that is reserved for only “exceptional cases”). It also decided to address the issues of admissibility and substantive merits together, in recognition of these cases’ importance: Verein KlimaSeniorinnen Schweiz and Others v Switzerland was brought by four individuals and an association of elderly Swiss women against Switzerland; Carême v France involved a French politician bringing a claim against France; and Duarte Agostinho and Others v Portugal and 32 Others saw six young people argue that all Council of Europe States (excluding Ukraine), including the UK, were failing to take sufficient action against climate change and were therefore breaching their rights. Save the Children International, represented by Hausfeld, intervened in Duarte Agostinho in May 2021 to provide insight into the particular vulnerability of children in the face of climate change and its effects. The Judgments Whilst each case was separately heard in 2023, the ECtHR issued judgments in respect of all cases on the same date, given the overlapping themes. In Verein KlimaSeniorinnen, the ECtHR ruled that the individuals’ claims were inadmissible as they did not meet the ‘victim-status’ threshold but – in a finding that may be important for future cases – the association was found to have standing given the way in which climate change is a common concern. The ECtHR went on to find a breach of Article 8, holding that: Article 8 encompasses “a right for individuals to effective protection by the State authorities from serious adverse effects of climate change on their life, health, well-being and quality of life”; States must therefore adopt and apply relevant measures to mitigate the effects of climate change which – particularly in light of international commitments such as the Paris Agreement – included measures aimed at preventing greenhouse gas emissions; and Switzerland had not instituted a sufficient domestic framework (such as the inception of carbon budgets) and had previously missed emissions targets previously, and this constituted a breach of Article 8. A dissenting opinion was expressed by one of the 17 judges, who disagreed on both the issues of admissibility and merits on the basis that the majority’s approach to the ECHR had gone beyond “the permissible limits of evolutive interpretation”. By contrast, both Duarte Agostinho and Carême were ruled as inadmissible and so the ECtHR did not provide a ruling on the merits of these cases. In the former, the ECtHR was unwilling to find that a claim by Portuguese applicants was admissible against other States: this would have required extending the extraterritorial jurisdiction of those other States which could not be justified, even though the ECtHR recognised the particular and significant threats that climate change represents. As regards the claim against Portugal, the ECtHR found that the applicants had jurisdiction but failed to exhaust domestic remedies before applying to Strasbourg for declaratory relief. The applicant in the third case had been the mayor of the Grande-Synthe municipality, which faced particular risks associated with climate change including a higher risk of flooding. However, he no longer lived in Grande-Synthe and was found not to have victim status such that he could bring his claim. Comment These judgments are seminal as they represent the first climate change decisions by the ECtHR. They will shape the future of climate action and litigation. Carême and Duarte Agostinho were found to be inadmissible but the ECtHR nevertheless made important observations about the existential threat of anthropogenic climate change and the control that States have over greenhouse gas emissions in their jurisdiction The ECtHR’s judgment in Verein KlimaSeniorinnen is likely to have an even more significant impact. Switzerland is now required by the ECtHR to take action to address its breach of Article 8. More broadly, the finding on standing for relevant organisations will assist in prospective claims across Europe and the ruling on Article 8 demonstrates that there is a minimum level as regards climate policy (and the effectiveness of such policy) below which States cannot fall without breaching the ECHR. However, what that means in practice for States, domestic and international policy, future litigants, and, ultimately, the planet remains to be determined, likely by both politicians – the Council of Europe’s Committee of Ministers will assess Switzerland’s response, for example – and future legal actions. Authors: David Lawne, Luke Grimes and Patrick Kenny
18 September 2024
Environment

No combustion without extraction – a landmark decision on consideration of downstream emissions in Finch

On 20 June 2024, the Supreme Court handed down its long-awaited judgment in R (on the application of Finch on behalf of the Weald Action Group) (Appellant) v Surrey County Council and others (Respondents) [2024] UKSC 20. By a 3:2 majority, the Supreme Court held that the effects on climate of emissions caused by the combustion of fossil fuels extracted from a development must be included in an Environmental Impact Assessment (EIA) and therefore considered by a local authority when deciding whether to grant planning permission for that development. Since the downstream emissions of a fossil fuel extraction development will be significantly greater than the direct emissions of the project, this means that local authorities will have to place weight on the wider climate effects of the project when considering whether to grant planning permission. The ruling in Finch is therefore very likely to affect the arguments before the courts in upcoming planning cases – as well as potentially shaping the future development of fossil fuel extraction projects in the UK. Background The history of the case is discussed in our previous blog on the topic. As a summary, the claim was brought by Ms Sarah Finch, a former resident of Surrey, in respect of the development of an oil well and production facilities at Horse Hill, near Gatwick. Under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (EIA Regulations), EIAs, which are required for planning permission, must consider the “direct and indirect significant effects of the proposed development on […] land, soil, water, air and climate” (emphasis added). As per the EU Directive on EIAs,[1] which gave rise to the EIA Regulations, this requires consideration of the likely effects of a proposed development. In 2019, Surrey County Council (SCC) accepted an EIA which considered only direct releases of greenhouse gas within the well site boundary over the lifetime of the project. Ms Finch challenged the SCC’s 2019 decision arguing that the EIA required consideration of the greenhouse gases which would be emitted as a result of the use of the refined oil product. In 2020, the High Court held that there was no requirement for the EIA in this case to consider the environmental effects of the use of a product emanating from the development. In 2021, the Court of Appeal dismissed Ms Finch’s appeal, but noted that the question of whether the downstream emissions needed to be assessed as part of the EIA was one of fact and evaluative judgment for the planning authority. Ms Finch appealed to the Supreme Court. Decision by the Supreme Court By a 3:2 majority, the Supreme Court held that emissions from the combustion of oil products from the well would be part of the effects of the development, and that therefore the SCC was wrong to grant planning permission on the basis of an EIA which did not consider these downstream emissions. The Court – in line with both lower courts – found that it was inevitable that oil produced from the site would be refined and would eventually be combusted. It distinguished the extraction and burning of fossil fuels from the process of manufacturing commodities (such as iron or steel), in which the environmental impacts due to the end use of the product would vary significantly. It also held that the downstream emissions would need to be considered in an EIA regardless of where the oil products were eventually burned. The Court was unanimous in deciding that the Court of Appeal was incorrect to hold that whether to consider the downstream emissions of a development was a matter for the local authority, noting that this would lead to inconsistent application of the law. Impact on ongoing cases The need to include downstream emissions in EIAs may tip the balance for local authorities when deciding whether to grant planning permission for fossil fuel extraction projects. The significant difference in the volume of greenhouse gases which must be considered – and the corresponding impacts of those gases – will likely give significantly more weight to the consideration of the impact of the project on the climate. The impact of Finch may be the subject of judicial discussion very soon. As mentioned in our previous blog, Finch is one of several cases in which campaigners have challenged planning permission granted for carbon-intensive developments in the UK. On 16-18 July 2024, the High Court will hear a statutory review regarding the Secretary of State’s decision to approve planning permission for the development of the Woodhouse Colliery scheme, a proposed metallurgical coal mine in West Cumbria.[2] The Secretary of State’s decision followed the approach adopted by the Court of Appeal in Finch, and considered that whether downstream emissions would need to be considered as part of an EIA was a question of fact and judgment for the relevant decision-maker. In that case, the Secretary of State decided that there was not a sufficient causal connection between the proposed development of the coal mine and the emissions caused by its use in a blast furnace to make steel for the emissions to be considered as part of the EIA. In particular, the Secretary of State considered that the developer of the coal mine would not have sufficient knowledge or control as to the use of the coal in coking, including whether any greenhouse gas mitigation measures could be installed. He then went on to note that even if downstream emissions were considered, the use of coal from the project would overall be neutral or positive for the climate, since it would be a part of a substitute for the import of overseas steel. It will be interesting to see whether, following Finch, the Court in West Cumbria finds that the Secretary of State should have considered downstream emissions. This may be an interesting test as to the degree of certainty required for downstream emissions to be considered under an EIA. It will also be interesting to see whether the Court considers how arguments on substitutability of fossil fuels from UK sources versus overseas sources should be factored into the decision-making process. Planning permission, climate change and human rights – the approach of other jurisdictions The issue of considering downstream emissions is complex, as reflected in the dissenting judgment in the Supreme Court and the variety of approaches taken in different jurisdictions. As noted by the Supreme Court in Finch, the Norwegian courts have adopted an approach which reflects that taken by the UK Supreme Court.  The Norwegian Supreme Court has held that greenhouse gas emissions from possible combustion of fossil fuels from reserves which might be found during exploratory drilling was too uncertain to require inclusion in an EIA.[3] However, the District Court has subsequently held that EIAs should consider the downstream emissions of extraction projects.[4] Therefore, the degree of certainty of the emissions emanating from the project appears to be an important factor, which reflects the approach taken by the UK Supreme Court.  This is unsurprising, given that the relevant domestic legislation in each case is derived from EU law. In contrast, other jurisdictions have adopted an approach of considering the materiality of emissions, and rights-based arguments. In Australia, the Federal Court recently ruled that the Minister for Environment had not erred in deciding that the approval of two coal mines would not substantially contribute to climate change.[5] This decision may be contrasted with the approach taken by the Queensland Land Court, which held that it was able to take scope 3 emissions of a coal mine (i.e. those caused by the combustion of the product) into account, and found on that basis that the impacts of climate change, including on human rights, meant that the coal mine developments should not be approved.[6] Likewise, in South Africa, a court granted an order prohibiting Shell from carrying out a seismic survey and exploratory drilling off the Eastern Cape coast, finding that Shell had failed to properly consult the claimants, and the proposed exploration was likely to infringe the claimants’ constitutional rights to a healthy environment and to the enjoyment of their cultural community.[7] Therefore, while an EIA does not require consideration of the human rights impacts of a project, the development of human rights jurisprudence on climate change – such as the recent European Court of Human Rights in the KlimaSeniorinnen case, in which the Court held that Convention rights encompass the right to effective protection by the state from the serious adverse effects of climate change – may influence the development of future case law on planning permission in which climate change impacts may be substantial. Comment The Supreme Court ruling means that for fossil fuel extraction projects, where it is certain that the end products will be combusted, the emissions emanating from such combustion must be considered as part of the planning process. This will provide significant additional weight to the consideration of the impact of a proposed development on the climate. The extent to which downstream emissions should be considered for other types of development may depend upon the degree of certainty that the use of the end product will lead to greenhouse gas emissions. Therefore, the development of a steel production plant would not require an assessment of downstream emissions, due to the uncertainty as to the use to which the steel would be put. It will be interesting to see how the courts deal with this issue in West Cumbria. Finally, where the limits to the planning regime are stretched, we may see rights-based arguments advanced, as has been done in other jurisdictions. Author: Simon Bishop, Chrysanthi Bampali and Alex Cooper Footnotes [1] Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment. See also paragraphs [72]-[78] of the judgment of the Supreme Court in Finch. [2] Friends of the Earth Ltd and South Lakeland Actions on Climate Change – Towards Transition v Secretary of State for Levelling Up, Housing and Communities, West Cumbria Mining Limited and Cumbria County Council. [3] Nature and Youth Norway v The State of Norway Case No 20- 051052SIV-HRET. [4] Greenpeace Nordic v The State of Norway, Case No 23-099330TVI-TOSL/05. [5] Environment Council of Central Queensland Inc v Minister for the Environment and Water [2024] FCAFC 56. This decision has been appealed, with the appeal judgment currently reserved. [6] Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21. [7] Sustaining the Wild Coast v Minister of Mineral Resources and Energy Case No.: 3491/2021.
18 September 2024
Press Releases

Hausfeld implements raft of innovative policies and well-being initiatives

As part of an extensive policy review, Hausfeld London introduced a range of initiatives that redefine workplace norms with the aim to continue to enhance its employees’ well-being and work-life balance and to continue to develop its inclusive and supportive environment. “With these initiatives we further build on our culture of trust, autonomy, and work-life integration which has always been at the heart of what we offer. The UK market is very competitive, but we believe that employees adopt a more holistic approach when they decide on the next step in their career, and salaries are not the only consideration." Alice Buck, Director HR & Operations at Hausfeld London She adds: “Working for an entrepreneurial firm offers more autonomy and an opportunity to bring pioneering cases, but during our extensive conversations internally during the last few months, it also became clear that besides a competitive salary, our employees want more of a say in how they work and when.” Agile working hours and flexible working patterns In acknowledgment of the diverse needs and likes of our employees, flexible work hours and working remotely has been part of Hausfeld’s offering from the very beginning. This allows everyone, subject to client and business needs, to tailor their working hours to align with their most productive times, family commitments, and personal responsibilities. We ask people to be in the office for 8 days a month at least. This mostly coincides with team, client or case meetings. They can decide to concentrate attendance or spread evenly, and how they attend can differ from month to month. Competitive paternity leave: redefining parenthood We enhanced our Paternity Leave Policy to offer employees the opportunity to take up to twelve weeks’ paternity leave with full pay. This also includes non-birth or adoptive parents. With this policy the father can be present during their child's early life. Life events policy Hausfeld recognises that people may need time to deal with challenging personal situations. Using a kind and flexible approach, we agree with the employee a discretionary period of absence during difficult periods in their lives. Non-exhaustive examples are illness and bereavement of a friend, family or pet, pregnancy loss, medical or fertility treatment, menopause, gender reassignment and/or caring responsibilities. Well-being days As part of our commitment to the well-being of the team, we are introducing two well-being days during a calendar year. This initiative allows employees to take the day off for any purpose they choose. Volunteering day: create meaningful change beyond the workplace In addition to the many DEI initiatives by our dedicated DEI partners, DEI Committee and working groups, we support our employees' passion for making a positive impact and have introduced a Volunteering Day. Each employee can spend one day in any calendar year at full pay, so they can contribute to a cause they deeply care about. Flexible bank holidays policy We are mindful that the bank holidays in the UK are centred around the Christian holidays. Our Flexible Bank Holidays Policy allows employees to swap up to four bank holidays - Christmas Day, Boxing Day, Good Friday and Easter Monday - for other dates. For example, employees can swap it for a day to celebrate Hannukah or Eid, but it doesn’t just apply to religious celebrations; they may simply want to celebrate a relative’s birthday or events like PRIDE instead. Summer policy: enjoying the summer Everyone at the firm works hard and it is important to enjoy the summer. Last July and August Hausfeld adopted ‘summer hours’ where employees could - subject to client and business needs - log off at 4.00 pm on Friday. We also tested out a policy which granted employees - with the same caveat - the flexibility to work from anywhere for two weeks in August 2023, which could be combined with up to two weeks annual leave before or after. This was much used and appreciated, while we were able to continue to serve our clients to our normal high standards, so we have decided to repeat both initiatives this year by allowing 2 weeks of remote working anytime during a 12 month period, and adopting 'summer hours' in August 2024. “Well-being, work-life balance and doing good are clearly important. As Hausfeld propels itself into a new era of progressive workplace practices, we believe the raft of initiatives distinguish us as a trailblazer in the industry. We are continuously evolving - for example, our policies for sabbaticals and extended leave will be rolled out imminently. After all, a happy and engaged team leads to enhanced creativity, new ideas and success.” Alice Buck, Director HR & Operations at Hausfeld London  
03 September 2024
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