Judgment call: 17 September 2012

The Court of Appeal upheld a determination by Ofcom in respect of a dispute referred by a number of communications providers concerning the charges levied by BT for partial private circuits. BT’s argument, that in assessing its compliance with a costs-orientation condition, its pricing and costs for both the trunk and terminating segments of the circuits had to be aggregated undermined the object of the regulatory regime.

Competition Law

British Telecommunications plc v Office of Communications and (1) Cable & Wireless UK (2) Virgin Media Ltd (3) Global Crossing (UK) Telecommunications Ltd (4) Verizon UK Ltd (5) Colt Technology Services. [2012] EWCA Civ 1051. Rix LJ; Etherton LJ; Lewison LJ. 27 July 2012

Appeal dismissed

Christopher Vajda QC
Christopher Vajda QC

For the appellants BT

Monckton Chambers’ Christopher Vajda QC; Fountain Court’s Professor Andrew Burrows QC; Brick Court Chambers’ Sarah Lee; Devereux Chambers’ Ben Lynch; Bird & Bird partner Richard Eccles

For the respondents Ofcom

Blackstone Chambers’ Pushpinder Saini QC; Blackstone Chambers’ James Segan and Blackstone Chambers’ Hanif Mussa instructed directly by Ofcom

Dinah Rose QC
Dinah Rose QC

For the interveners (1) Cable & Wireless (2) Virgin Media (3) Global Crossing (UK) Telecommunications (4) Verizon UK (5) Colt Technology Services.

Blackstone Chambers’ Dinah Rose QC; Blackstone Chambers’ Tristan Jones; Olswang senior associate Ginny O’Flinn

Administrative Law

R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs. [2012] EWHC 2115 (Admin). Stanley Burnton L. 25 July 2012

In judicial review proceedings brought on behalf of the Chagos Islanders the court exercised its discretion to permit the cross-examination of witnesses in relation to leaked documents likely to have been obtained illegally, as the proceedings could not be fairly or justly determined without resolving the claimant’s allegation based on those documents.

Application granted

For the claimant R (on the application of Bancoult)

39 Essex Street’s Nigel Pleming QC; 39 Essex Street’s Richard Wald; Clifford Chance consultant Richard Gifford

For the defendant secretary of state

39 Essex Street’s Steven Kovats QC instructed directly by the Treasury Solicitor

Civil Procedure

Khans Solicitors v Chifuntwe; Secretary of State for the Home Department [2012] EWHC 2108 (QB). Mackay J. 24 July 2012

A compromise as to costs reached between the Secretary of State for the Home Department and the claimant in person after the latter’s solicitors had applied for their costs to be assessed was valid; the principle in Ross v Buxton (1889) LR 42 Ch. D. 190, which had been subsumed into the principle in Margetson and Jones Re [1897] 2 Ch. 314, required an intention to cheat before such a compromise could be considered invalid, and it could not be said that either party to the compromise had acted in an underhand manner.

Appeal dismissed

For the appellant Khans Solicitors

12 Old Square’s Michael Biggs instructed directly by Khans Solicitors

For the respondent Chifuntwe

Falcon Chambers’ Oliver Radley-Gardner instructed directly by the Treasury Solicitor

Human Rights

AAA v Associated Newspapers Ltd [2012] EWHC 2103 (QB). Nicola Davies J. 25 July 2012

There was an exceptional public interest in the professional and private life of an elected politician such as to justify the publication of a newspaper article claiming that a child had been born as a result of an extramarital affair he had had. However, there was no justification for publishing a photograph of the child, which had been taken covertly when she was less than a year old.

Judgment for claimant in part

For the claimant AAA

5RB’s James Price QC; 5RB’s William Bennett; Collyer Bristow partner Dominic Crossley

For the defendant Associated Newspapers

5RB’s Desmond Browne QC; 5RB’s Alexandra Marzec; Reynolds Porter Chamberlain partner Jaron Lewis

IP

Bayerische Motoren Werke (BMW) Aktiengesellschaft v Round & Metal Ltd. [2012] EWHC 2099 (Pat). Arnold J. 27 July 2012

A company had infringed BMW’s community registered designs by importing and selling replica alloy wheels for BMW cars. It could not rely on Regulation 6/2002 art.110 as a defence as, although art.110(1) applied to the market in replacement car parts such as body panels, bumpers and windows, it did not extend to alloy wheels.

Judgment for claimant

Piers Acland QC
Piers Acland QC

For the claimant BMW

11 South Square’s Piers Acland QC; 11 South Square’s Hugo Cuddigan; Mishcon de Reya partner Adam Morallee

Adam Morallee
Adam Morallee

For the defendant Round & Metal

8 New Square’s Mark Platts-Mills QC; 8 New Square’s Jonathan Hill; Simons Muirhead & Burton partner Razi Mireskandari

IP

Quick Draw LLP v (1) Global Live Events LLP; (2) Christopher Hunt; (3) Michael Henry; (4) Iambic Media Ltd [2012] EWHC 2105 (Ch). Sarah Asplin QC. 30 July 2012

A limited liability partnership which had provided a bridging loan to finance a concert was entitled to recover the full amount due from the concert organiser. Under the terms of a debenture, the lender was entitled to existing and future copyright in sound and film recordings of the concert as security for the loan.

Judgment for claimant

For the claimant Quick Draw

Maitland Chambers’ Siward Atkins; 8 New Square’s Jonathan Hill; Wiggin solicitor Philip Gorski The second and third defendant appeared in person.

The fourth defendant appeared by its sole director, Global Live Events