In this post, Jack Williams of Monckton Chambers discusses aspects of the Competition Appeal Tribunal’s (“CAT”) decision in Umbrella Interchange Fee Claimants and Merricks v Umbrella Interchange Fee Defendants and Mastercard [2023] CAT 49 (“Interchange”) concerning whether the CAT was bound to follow the European Court of Justice’s (“CJEU”) decision in C-267/20 Volvo AB and DAF Trucks NV v RM EU:C:2022:494 (“Volvo”), which post-dated IP completion day.
The relevant issue in Interchange
In section B of the majority’s judgment in Interchange, the CAT concluded that the CJEU’s judgment in Volvo does not stand as authority for the proposition that, as a matter of EU law, time must run from the time when the infringement of competition law has ceased: [33]. This aspect of the judgment has been much discussed elsewhere. This blog post, however, is concerned with section C of the judgment (and Roth J’s concurring opinion) concerning whether the CAT was obliged to follow Volvo in any event.
Section 6(1)(a) of the EU (Withdrawal) Act 2018 (“EU(W)A”) states that a domestic court or tribunal “is not bound by any principles laid down, or any decisions made, on or after IP completion day by the European Court.” The issue for the CAT in Interchange was whether section 6(1)(a) applied (meaning that it could have regard to Volvo but was not bound by it since it was handed down on 22 June 2022 – well after 31 December 2020), or was inapplicable (meaning that Volvo was binding on it).
The reason that this issue arose was because the Claimants argued that section 6(1)(a) is only applicable where retained EU law applies (i.e. for facts and matters arising after IP completion day), whereas it is not applicable where EU law continues to apply (i.e. for facts and matters arising before IP completion day). Since the cause of action in Interchange was completed before IP completion day, the Claimants claimed that: (a) they could continue to rely, even post-Brexit, upon EU law (namely Article 101 TFEU) as it stood at the time, as part of their accrued EU law rights unaffected by the operation of the EU(W)A and outside of the prism of a retained EU law analysis, and (b) that since EU law, not retained EU law, was in play, section 6(1)(a) of the EU(W)A does not apply so that the case must be determined by reference to CJEU authority, whenever that authority is decided, including post-IP completion day ones like Volvo (since decisions of the CJEU are declaratory and thus backwards-looking).
As can be seen from this description, the issue in fact breaks down to two (distinct) questions:
- Does EU law continue to apply for facts and matters arising before IP completion day, or does retained EU law apply retrospectively as well as prospectively? (“Question 1”)
- If the answer to Question 1 is that EU law rights can accrue and be applied outside the retained EU law framework, does that mean section 6(1)(a) does not apply, or does section 6(1)(a) apply both to retained EU law and accrued EU law rights situations? (“Question 2”)
A primer on the distinction between accrued EU law rights and retained EU law
I have previously set out (here and here) a full account of the nature and applicability of retained EU law and accrued EU law rights. The following is a summary.
First, retained EU law is a new category of domestic law applicable to facts and matters arising after IP completion day (unless, expressly or by necessary implication, the new law is specifically said to apply retrospectively, which is not the default effect of the EU(W)A). Retained EU law is applicable pursuant to the EU(W)A.
Second, whilst the UK was an EU member state, EU law formed part of UK law by virtue of, inter alia, section 2(1) of the European Communities Act 1972 (“ECA”).
Third, during the transition (or implementation) period, certain EU law formed part of UK law by virtue of sections 1A and 1B of EU(W)A (see, also part 4 of the UK-EU Withdrawal Agreement).
Fourth, the repeal of section 2(1) of the ECA was accomplished by section 1 of the EU(W)A. The repeal of sections 1A and 1B of EU(W)A was contained within those very same sections (i.e. sections 1A and 1B were self-repealing on IP completion day pursuant respectively to sections 1A(5) and 1B(6). The EU(W)A does not contain any general provision to the effect that rights accrued under EU law pursuant to either section 2(1) of the ECA or sections 1A and 1B of the EU(W)A are extinguished or modified retrospectively after IP completion day. Indeed, to the contrary, where particular EU law rights are intended to be extinguished or limited after IP completion day (in addition to and separately from also being excluded from the category of new law, retained EU law) by the EU(W)A, they are expressly covered by specific exceptions. See, for example, paragraphs 1 – 4 of Schedule 1 and paragraph 39 of Schedule 8 of the EU(W)A.
Fifth, section 16 of the Interpretation Act 1978 states that: “where an Act repeals an enactment, the repeal does not, unless the contrary intention appears,— … (b) affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment; [or] (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment …”. Any legal proceedings in respect of those rights may be “instituted, continued or enforced… as if the repealing Act had not been passed”.
Sixth, for the reasons in the point 4 above, there is no general “contrary intention” for the purposes of section 16 of the Interpretation Act 1978 that all rights of action be removed for past breaches of EU law. To the contrary, the effect of that section is to prevent the repeal of sections 1, 1A and 1B of the EU(W)A having any retrospective effect. That is to say, section 16 of the Interpretation Act generally preserves the ability to rely upon and enforce – subject to limitation rules – EU law where the cause of action was completed before IP completion day (even if that EU law does not form part of retained EU law, or even if any retained EU law has subsequently been modified or repealed pursuant to the deficiency correcting EU Exit Regulations under section 8 of the EU(W)A).
Seventh, in the premises, the starting point is that EU law generally remains applicable for facts and matters that took place prior to IP completion day (pursuant to section 2 of the ECA and sections 1A-1B of the EU(W)A), whereas retained EU law is generally applicable for facts and matters that took place thereafter (pursuant to sections 2-6 of the EU(W)A). This is subject to specific exceptions and the usual rules of limitation, for example. The correct answer to Question 1 above, therefore, is that accrued EU law – not retained EU law – applies to facts and matters which took place before IP completion day.
Eighth, this makes good sense. Two passages from the early part of Interchange itself (which are then not applied subsequently) explain why:
[54]: “As [Greenberg (ed), Craies on Legislation (12th edn, 2022) at [14.4.10]] notes, the principle articulated by section 16 “is really the corollary of the presumption against retrospectivity: just as we assume, in the absence of very clear evidence to the contrary, that the legislature does not intend to introduce a new law in relation to past events, so too we assume that the abolition of a particular law for the future is not intended to prevent the due operation of the rule of law as it stood prior to the abolition’s taking effect. Section 16 is a very broad set of propositions and the courts will give it an appropriately wide construction, so as not to frustrate the underlying intention of allowing matters arising before the repeal of an enactment to be followed through to their conclusion as if the repeal had not happened.”
[58]: “…A cause of action accrues when the facts that trigger, under the then prevailing law, a right to a legal response have occurred. Later changes to the law (whether to the benefit or disadvantage of the claimant) ought to make no difference; but similarly, the law should not (unless the language is very clear) subsequently take away rights which have accrued. It is in relation to this latter aspect that section 16 of the Interpretation Act 1978 is concerned with.”
This reflects the fundamental tenet of the rule of law that individuals must be able to predict the legal consequences of their actions pursuant to the law in force at the time and plan accordingly, without being punished, after the event, under a new, subsequent law.
A visual guide to applicable law post-Brexit demonstrates the above position more vividly:
Finally, it will be noted that nothing in this analysis regarding Question 1 necessarily dictates the answer to Question 2. Put another way, whether or not the rule in section 6(1)(a) of the EU(W)A that domestic courts are not bound by new CJEU case law applies to situations concerning causes of action completed prior to IP completion day (in addition to thereafter in respect of retained EU law scenarios for causes of action after IP completion day) is a separate question. The answer depends on whether section 6(1)(a) can be read as evincing the “contrary intention” for the purposes of section 16 of the Interpretation Act 1978. There is nothing inherent about the application of accrued EU law rights that automatically means that those rights are frozen for all time: just like there are certain retrospective amendments to the law made by the EU(W)A (e.g. in respect of Francovich damages), there is no reason, in principle, why the legislator could not amend the applicable case law for historic matters applying EU law. The answer to Question 2 depends upon an interpretation of section 6 of the EU(W)A and the application of section 16 of the Interpretation Act 1978. The mere application of accrued EU law does not necessitate an answer in either direction.
The CAT’s approach
The CAT does not adopt the above approach. The reasoning of the majority (Sir Marcus Smith and Ben Tidswell) can be found in section C of the judgment (the only section of the majority’s judgment with which this blog post is concerned). Although the reasoning is complex and, at times, convoluted, the majority holds in respect of Question 1 that: (i) accrued EU law rights “are no such thing and do not in law exist” ([69(2)(iv)] and [69(5)]); (ii) section 16 of the Interpretation Act 1978 is not triggered because “there can be no question of the law giving rise to enforceable EU rights having been “repealed” ([39]) and there are thus no domestic rights that have been repealed ([44(2)(iii)], [68(2)-(3)] and [69](3)); (iii) there is no way, other than through the prism of retained EU law, in which “any EU law can survive the repeal of the 1972 Act” ([68[2], emphasis in original); and (iv) causes of action are instead maintained in domestic law, as part of retained EU law, “by virtue of section 4” of the EU(W)A ([44](3)], [68(1)], [69((3)-(4) and (6)] and [70]).
Although it does not neatly delineate between the two questions or consider the second fully, in respect of Question 2, the CAT holds that since retained EU law is in play, so, too, is section 6(1)(a) of the EU(W)A: it is therefore not bound to follow Volvo ([72]). It also declines, in exercise of its discretion pursuant to section 6(2) of the EU(W)A, to “have regard to” Volvo ([73]).
In a concurring judgment, Mr Justice Roth reaches the same conclusion, but by a slightly different route. He dissents (rightly in my view) on the majority’s view that section 4 of the EU(W)A is the mechanism whereby rights which had accrued under EU law prior to IP completion day are maintained in domestic law ([101]), but nonetheless then finds (wrongly in my view) that: (i) accrued EU law rights have been “converted or ‘translated’… into rights under retained EU law… [such that] the [EU(W)A] becomes the basis upon which such rights may be pursued or asserted in the United Kingdom” ([102] and [133]); (ii) “retained EU law is not confined to matters arising, or rights which accrue, only after [IP completion day]” ([114]); (iii) that “claims under Article 101 TFEU are, as from [IP completion day], to be regarded as claims under retained EU law” ([134]); and (iv) it is only “by reason of para 14(2) of Schedule 4 to the 2019 Regulations that the present claims can be pursued” ([116]). In consequence, he finds that section 6 of the EU(W)A “is engaged” ([134]) and accordingly that the CAT is “not bound by [Volvo] but may have regard to it” ([135]).
Although the overall result is reasonable (namely that the CAT is not bound by Volvo since it post-dates IP completion day), there are, in my view, five fundamental issues with the CAT’s approach in getting there. These are of wider consequence and thus important despite the outcome. I take each in turn.
Issue 1: the Interpretation Act and the ghost of the dissent in Miller I
The CAT states that the “central” and “critical” question for it to determine is “whether the repeal of the 1972 Act brought into play section 16 of the Interpretation Act 1978 in the manner suggested by the Umbrella Proceedings Claimants”: [69(5)(iv)].
The CAT holds that section 2(1) of the ECA (and, by implication, sections 1A-1B of EU(W)A for facts and matters arising during the transition period) are irrelevant and inapplicable, since section 16 of the Interpretation Act 1978 is not triggered. This is on the basis that “there can be no question of the law giving rise to enforceable EU rights having been “repealed” ([39]) since there are thus no domestic rights that have been repealed ([44(2)(iii)], [68(2)-(3)] and [69](3)). Instead, rights (etc.) arising under section 2(1) of the ECA (and by implication sections 1A-1B of the EU(W)A) are, according to the CAT, only “ambulatory” and “a body of law foreign to the United Kingdom in one sense” ([37]) and thus EU law cannot:
“survive the repeal of the [ECA], not because it is itself repealed, but because it ceases to be relevant… [since the rights arising from section 2(1) of the ECA are] ambulatory [meaning that]… [o]nce the means by way of which that law flows into the Unite Kingdom’s legal system is cut off, so too is the applicability of that law in the United Kingdom (although not, obviously, amongst Member States still in the EU). That body of law becomes law entirely foreign to the United Kingdom.”
This analysis paves the way for the CAT’s conclusions that (i) there is no such thing as accrued EU law rights and (ii) the applicable law post-IP completion day (even for facts and matters arising before it) is, in fact, retained EU law pursuant to sections 2-6 of the EU(W)A, rather than EU law simpliciter pursuant to section 2(1) of the ECA or sections 1A-1B of the EU(W)A.
The CAT’s approach to the Interpretation Act 1978 is flawed for two key reasons.
First, the CAT appears to have considered only section 16(1)(c) and (e) of the Interpretation Act 1978: see [69(3)]. This over-looks section 16(1)(b), which states that: “where an Act repeals an enactment, the repeal does not, unless the contrary intention appears,—… (b) affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment”. It is unarguable that section 2(1) of the ECA and sections 1A and 1B of the EU(W)A have not been repealed. The previous operation of those sections (i.e. to act as conduit pipes for certain EU rights etc.) should not be affected retrospectively. They remain the governing provisions for the applicable law for facts and matters arising (i.e. things “duly done or suffered”) prior to exit day and IP completion day respectively. The right of action for breaches of EU law remains, even after Brexit, breach of statutory duty pursuant to those sections, rather than breach of sections 2-6 of the EU(W)A.
Second, in any event, the CAT is wrong, for the purposes of section 16(1)(c), to hold that rights flowing through the conduit pipe in section 2(1) of the ECA (what the CAT labels as “enforceable EU rights”) were not domestic law rights and, going forwards, were not repealed by the EU(W)A. Indeed, much of the CAT’s reasoning bears an eery resemblance to the dissent of Lord Reed in R(Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 (“Miller I”), which was roundly rejected by the majority of a full Supreme Court. In particular, the Court expressly rejected the “ambulatory” thesis and the argument that the rights (etc.) flowing down the section 2(1) of the ECA conduit pipe were not domestic:
“70. … Some of these rights have already been embodied in UK law by domestic legislation pursuant to section 2(2) of the 1972 Act, and they will not cease to have effect upon the United Kingdom’s withdrawal from the European Union (unless the domestic legislation giving effect to them is repealed in accordance with the law), although the Court of Justice will no longer have any binding role in relation to their scope or interpretation. Other rights, arising under EU Regulations or directly under the EU Treaties, will cease to have effect upon withdrawal (save in relation to rights and liabilities already accrued), but many could be replicated in a new statute – eg the proposed Great Repeal Bill. But, as the Divisional Court pointed out, the need for such replication would only arise because withdrawal from the EU Treaties would have abrogated domestic rights created by the 1972 Act of effect, and again the Court of Justice would no longer have any binding role in relation to them.” (emphasis added)
and
“83. While the consequential loss of a source of law is a fundamental legal change which justifies the conclusion that prerogative powers cannot be invoked to withdraw from the EU Treaties, the Divisional Court was also right to hold that changes in domestic rights acquired through that source as summarised in para 70 above, represent another, albeit related, ground for justifying that conclusion. Indeed, the consequences of withdrawal go further than affecting rights acquired pursuant to section 2 of the 1972 Act, as explained in paras 62 to 64 above. More centrally, as explained in paras 76 to 79 above, section 2 of that Act envisages domestic law, and therefore rights of UK citizens, changing as EU law varies, but it does not envisage those rights changing as a result of ministers unilaterally deciding that the United Kingdom should withdraw from the EU Treaties. “ (emphasis added)
The nature of EU law rights being domestic rights was not a novel proposition even before Miller I. It has long been considered the orthodoxy. For example, in Julian Sundberg Jensen and Others v Corporation of the Trinity House of Deptford [1982] 2 CMLR 218 Lord Denning MR stated at [39]: “That Article of Community law [Article 7 of the Treaty of Rome] is incorporated into our law…” (emphasis added) and Lord Kerr said that: “[t]here can be no doubt, of course, that rights and obligations arising from the Treaty, as well as from regulations and from decisions of the European Court of Justice, form part of the corpus juris of the member states” (emphasis added). More recently, Lord Mance in Pham v Secretary of State for the Home Department [2015] UKSC 19 stated that “…we must view the United Kingdom as independent, Parliament as sovereign and European Law as part of domestic law because Parliament has so willed” (emphasis added): see [80] and [92].
For a fuller critique of the ambulatory thesis and explanation of why rights under section 2(1) of the ECA were domestic, see: Elliott, Young and Williams (ed), The UK Constitution after Miller: Brexit and beyond, Hart Publishing (2018) at pages 56-67.
Accordingly, for each of these two reasons, the foundation for the CAT’s analysis (namely that one needs to look elsewhere beyond section 2 of the ECA and sections 1A and 1B of the EU(W)A for the governing provision for the applicable law) is wrong. One does not look to the new law (retained EU law) and apply that retrospectively – there is no gap to fill thanks to the Interpretation Act 1978.
Issue 2: sections 2(1) ECA and 4 EU(W)A have nothing to do with rights of action
Further and in any event, the CAT is also wrong to find that the governing provision to determine the applicable law for facts and matters taking place prior to IP completion day for breaches of EU law is section 4 of the EU(W)A, as part of retained EU law ([44](3)], [68(1)], [69((3)-(4) and (6)] and [70]). This is for three reasons.
First, section 4 is a form of retained EU law. That is new, domestic law, which came into force on IP completion day. There is a strong statutory presumption that new law applies prospectively to new facts only. There is no wording in section 4 to suggest otherwise.
Second, section 4 of the EU(W)A concerns the retention of primary law, not causes or rights of action. It specifically tracks the language of section 2(1) of the ECA. That section did not, whilst the United Kingdom was an EU member state, bring into domestic law any causes or rights of action per se. The right of action was, in fact, a breach of statutory duty of section 2(1) itself for infringement of, for example, the primary EU law flowing through it. Instead, section 2 of the ECA (and section 4 of the EU(W)A) concerned directly effective or directly applicable rights (etc). flowing from, for example, the EU Treaties, international agreements to which the EU was a party, general principles of EU law and EU directives: see, also, section 18 of the European Union Act 2011. The section simply brought into the domestic legal system, on an ongoing basis, all provisions of EU law that had to be given legal effect in the domestic legal order “without further enactment” by the UK – one could not, of course, give “further enactment” to causes or rights of action.
Section 4 was, then, simply intended to ‘sweep up’ bring into the domestic legal system post-Brexit all matters falling within section 2(1) of the ECA for the purpose of legal continuity. Indeed, it is notable that, as far as I am aware, no legislative material or commentary has ever suggested that rights of action are retained pursuant to section 4 of the EU(W)A. Nor has any been listed on the UK Government’s “Retained EU law dashboard” created for the purposes of the Retained EU (Revocation and Reform) Act 2023, which repeals section 4 of the EU(W)A from 2024. Again, I am unaware of anything in the legislative materials for the 2023 Act that suggestion the repeal of section 4 may affect accrued causes of action (though section 22 of that Act does make expressly clear that the repeal of section 4 of the EU(W)A is prospective only).
Third, section 4 expressly says that it does not cover rights (etc.) so far as they form part of domestic law by virtue of section 3 of the EU(W)A (i.e. EU Regulations): see section 4(2). Yet, if the majority’s view were correct, then either rights of action for breaches of EU Regulations would still presumably somehow be preserved for EU Regulations despite the express language in section 4, or, alternatively, they would not be preserved and the majority would need to explain the discrepancy between the retention of rights of action based on, e.g. Treaty Articles and directives, but not EU Regulations (for which rights would have been abolished retrospectively). This would stand in stark contrast to the majority’s assertion that the substantive law and rights accrued in respect of alleged past infringements of that substantive law are “unchanged”: [69(4)].
Roth J, dissenting on the majority’s approach to section 4, recognises some of these points and correctly explains at [101] why section 4 of the EU(W)A is irrelevant:
“The Defendants sought to rely on s. 4(1) as providing the answer, but in my view that provision cannot bear the weight which they sought to place upon it and that provision does not assist. A vast number of rights accrued to persons and bodies in the UK under EU Regulations. If s. 4(1) were the mechanism whereby rights which had accrued under EU law pre-IPCD were translated or converted as from IPCD into rights under retained EU law, s. 4(1) would have to cover rights which accrued under EU Regulations (since there is no equivalent language in s. 3). But s. 4(1) expressly does not apply to such Regulations: see s. 4(2). In my view, the statutory wording in s. 4(1) which refers to “any rights, powers, liabilities, obligations” (etc) simply traces the wording of s. 2(1) of the 1972 Act, thereby converting directly effective rights and obligations under the EU Treaties into retained EU law: see para 91 above. Accordingly, I do not think that s. 4(1) is of any relevance to the question before us.”
Having correctly dismissed the majority’s conclusion that rights of action for breaches of EU law prior to IP completion day form part of retained EU law pursuant to section 4, Roth J then, however, states at [102]:
“Nonetheless, I conclude that the statutory scheme, considered as a whole, indeed has, in effect, converted or ‘translated’ rights which had accrued under EU law into rights under retained EU law, save insofar as the 2018 Act otherwise expressly provides. Put another way, as from IP [completion day], the 2018 Act becomes the basis upon which such rights may be pursued or asserted in the United Kingdom.” (emphasis added)
But, with respect, this can be dismissed readily. The concept of “retained EU law” is defined in section 6(7) of the EU(W)A as “anything which, on or after IP completion day, continues to be, or forms part of, domestic law by virtue of section 2, 3 or 4 or subsection (3) or (6) above”. Having correctly dismissed the relevance of section 4 (the only section relied upon by the Defendants and the majority), there is no other section by which causes and rights of action can thus somehow become part of “retained EU law”, or the EU(W)A can become “the basis upon which such rights may be pursued or asserted” post-IP completion day. The reason such rights of action can still be pursued or asserted is no mystery: it is because they accrued under EU law prior to IP completion day, applicable through section 2(1) of the ECA or sections 1A and 1B of the EU(W)A due to the operation of the Interpretation Act 1978.
In short, for these three reasons, there is no basis upon which causes or rights of action can be said to fall within the concept of retained EU law. Put another way, even if there were a gap (which there isn’t for the reasons in the Issue 2 section above), retained EU law doesn’t fill it.
Issue 3: the retrospective black hole of applying retained EU law
The CAT holds that any approach other than applying retained EU law (even to past facts and matters taking place prior to IP completion day) “seems to cut across the whole purpose of the [EU(W)A]” ([71]) and is “inconsistent with what Parliament intended by the United Kingdom’s exit from the EU” ([69(1)]. Instead, the CAT states, “the entire legal order has undergone a paradigm shift” ([69(2)]. As such, in the CAT’s view, there is no way, other than through the prism of retained EU law, in which “any EU law can survive the repeal of the 1972 Act” ([68[2], emphasis in original) and “claims accruing and asserted before exit day” must reflect this new legal regime ([69(2)].
There are four fundamental flaws with this approach to the EU(W)A.
First, the majority, at [69(1)-(2)], does not identify anything in the “paradigm shift” which evinces Parliamentary intention that: (a) by default, the new, modified versions of retained EU law should be applied retrospectively to past facts and matters taking place before Brexit, or that (b) rights for accrued causes of action for breaches of EU law suffered prior to Brexit should be assessed through the prism of retained EU law. Put another way, nothing in the EU(W)A suggests that it should generally apply retrospectively. Indeed, the whole purpose of the Act was to ensure legal continuity.
Specifically, none of the three factors identified in [69(1)-(2)] (namely, the fact the UK is now a third country, or the removal of supremacy (for new legislation, at least), and the inability to make preliminary references now) suggests that the “paradigm shift” generally operates anything other than prospectively only.
Second, indeed where Parliament did intend the EU(W)A to have retrospective effects (i.e. even for cases concerning accrued EU law rights and the application of EU law), it does so specifically and expressly: see, for example, paragraphs 1 – 4 of Schedule 1 and Schedule 8 to the EU(W)A. Contrary to the majority’s assessment at [69(6)] and [70] and Roth J’s reasoning at [107]-[108], this scheme of adjustments is very much inconsistent with the CAT’s approach, which entails a claim that the EU(W)A as a whole operates retrospectively to govern past facts and matters. But retained EU law is new, domestic law which commenced from IP completion day. Where the Act has retrospective effect, it says so. Indeed, it might be telling that paragraph 39 of Schedule 8 does not mention section 4 at all: it simply states that sections 5(4) and paragraphs 1 to 4 of Schedule 1 “apply in relation to anything occurring before IP completion day (as well as anything occurring on or after IP completion day)”.
Third, the majority is wrong to claim that its approach does not entail retrospectivity since, in its view, the “substantive law is unchanged; and rights accruing in respect of alleged past infringements of that substantive law are similarly unchanged” ([69[4]). See, also, [68(2)] and [69(2)(iv)]. Putting aside the internal inconsistency with what the majority says elsewhere (see, e.g., [68(4)], Roth J is, instead, correct to state that rights might be substantively changed or excluded altogether: see [103]-[104]. This could happen in a number of ways, such as:
- The substantive EU law upon which the litigant wishes to rely was not retained in the first place.
- It was retained, but then modified pursuant to the deficiency correction powers in section 8 of the EU(W)A.
- It was retained, but then abolished.
The content of the new body of domestic law known as retained EU law could thus be very different from that of the EU law in force at the time of the underlying events in question. This phenomenon (and the issues of applying the new law to the old facts) is well demonstrated by the decisions of Lipton v BA City Flyer Ltd [2021] EWCA Civ 454 (“Lipton”) and Marjolyn Varano v Air Canada [2021] EWHC 1336 (QB) (“Varano“), which I have discussed in detail before. Those cases both concerned pre-Brexit delayed flights, but were heard after Brexit. The Courts applied the new and amended retained EU law version of the relevant EU Regulation, rather than the EU Regulation itself. The potency of adopting the (incorrect) position of applying retrospectively retained EU law (particularly where it has been subsequently modified or even repealed) was set out by the Judge in Varano (who considered himself bound by Lipton) at [72]:
“The effect of the analysis set out by Green LJ in Lipton is potentially far reaching. Leaving aside wider potential implications, I note that Amended Regulation 261 is limited in scope to passengers departing from an airport located in the UK, rather than (under Regulation 261) to passengers departing from an airport located in the territory of a Member State. It is conceivable, for example, that a claimant might have issued proceedings in 2019 in respect of delay to a flight departing from, say, Paris. If such a claim were heard in 2021 then the defendant airline might seek to rely on the analysis in Lipton to contend that the claimant has no cause of action under the Amended Regulation 261, even though such an argument would not have been available had the claim been heard in 2020. The correct approach to any such claims (including the effect of s.16 of the Interpretation Act 1978) would call for detailed consideration in light of Lipton.”
Moreover, as noted at [95] of the judgment in Varano, the claimant was entitled to compensation claimed in respect of her delayed flight “albeit in the sum of £520, being the sum provided for by the Amended Regulation 261, rather than €600 as would have been due under Regulation 261”: [95].
The application of retained EU law, rather than EU law, thus had substantive consequences.
Under the CAT’s retained EU law approach in Interchange, however, it is impossible to explain why – if its view that substantive rights have not changed is correct – the old, EU version of the law does not apply in circumstances where it has simultaneously held that retained EU law is the only game in town. Instead, the CAT is forced into the rubric, like Lipton and Varano demonstrate, of applying retrospectively the new, domestic version of retained EU law – indeed, that is if it has been retained at all: if it has not, or has subsequently been abolished, then, under the CAT’s approach, it is impossible to explain why or how a litigant could nonetheless revive it or the original EU law which was in force at time of the events.
Despite its more sweeping statements, the majority might try to claim that, for the purposes of causes / rights of action, at least, section 4 of the EU(W)A brings in the right of action to rely upon the old, EU version (such that there is no change in substantive law, or any retrospectivity). However: (i) as we have already seen, section 4 cannot perform that function; (ii) even if it could, it cannot explain why, on the majority’s view, Parliament only intended to retain causes of action for breaches of substantive law flowing through section 4 (e.g. directives) (what the judgment calls “enforceable EU rights”), but not through section 3 (e.g regulations) (see [44(3)(ii)], last sentence); and (iii) in any event, such a claim would appear inconsistent with the majority’s own claim that EU law has no role whatsoever post Brexit (68[2]). Retrospectivity is thus an inherent feature (and problem) with the CAT’s approach.
Put at a higher level, this is all contrary to the well-established principle of non-retrospectivity for new laws and the basic point that one applies the law applicable at the time of the event unless Parliament has made very clear (whether expressly or by necessary implication) that its new law, or repeal of an old one, is intended to operate retrospectively. (Whatever else can be said, it certainly cannot be said that the majority’s reading of the EU(W)A demonstrates that it is sufficiently clear to have this retrospective effect.) The only way to avoid these consequences is by avoiding the muddled, complex path which the CAT sets us on by its rejection of the relevance of the Interpretation Act 1978.
Fourth, the errors in the CAT’s approach are demonstrated by its misreading and misapplication of the Competition (Amendment etc.) (EU Exit) Regulations 2019 (the “2019 Regulations”). Regulation 62 of the 2019 Regulations (entitled “cessation of Treaty Rights and Obligations” and found in part 6 of the Regulations, entitled “Amendment of retained EU law”) provides that:
“Any rights, powers, liabilities, obligations, restrictions, remedies and procedures which—
(a)continue by virtue of section 4(1) of the European Union (Withdrawal) Act 2018; and
(b)are derived from Articles 101, 102, 106(1) or 106(2) of the Treaty of the Functioning of the European Union or from Articles 53, 54, 57(1), 59(1) or 59(2) of the EEA Agreement
cease to be recognised and available in domestic law (and to be enforced, allowed and followed accordingly) on the coming into force of these Regulations.”
Pausing there, on the CAT’s approach, the effect of this Regulation would be, prima facie, to remove all rights of action under, e.g, Articles 101 and 102 TFEU for all facts and matters prior to IP completion day: [68(4)] and [116].
Paragraph 14(2) of Schedule 4 to the 2019 Regulations, however, states:
“Where an EU competition infringement occurs before IP completion day, on and after IP completion day a person may—
(a)continue any claim (or defence to a claim) in relation to that infringement in proceedings before a court or tribunal in the United Kingdom, and
(b)make any claim (or defence to a claim) in relation to that infringement in proceedings before a court or tribunal in the United Kingdom which the person could have made before IP completion day.”
Roth J claims that it is only “by reason of para 14(2) of Schedule 4 to the 2019 Regulations that the present claims can be pursued” ([116]). He uses its existence as evidence that it was “necessary to provide a saving for such rights and claims [which] shows that the removal of the EU competition provisions that were otherwise brought into retained law by s.4(1), without more, would have retrospective effective” ([116]). However, this is flawed for three reasons:
- Firstly, there is a real tension between Roth J’s earlier (correct) finding that section 4 of the EU(W)A does not retain rights of action at [101], and, here, his application of Regulations 62 and paragraph 14 of Schedule 4 to the 2019 Regulations to support a view that retained EU law does not relate only to rights accruing post IP completion day but instead, also to EU competition provisions that “were otherwise brought into retained law by [section 4]”. The two statements appear incompatible.
- Secondly, in fact, a proper understanding of Regulation 62 shows that section 4 of the EU(W)A does not concern causes or rights of action for past breaches of EU law prior to IP completion day. As explained above, the effect of this Regulation would on the CAT’s reading be, prima facie, to remove all rights of action under, e.g, Articles 101 and 102 TFEU for all facts and matters prior to IP completion day: [68(4)] and [116]. That, however, is not within the scope or gift of Regulation 62. The 2019 Regulations were enacted pursuant to the powers conferred by section 8 of the EU(W)A. Those powers are strictly confined to defined “deficiencies” in retained EU law arising from Brexit. Unlike the removal of Articles 101 and 102 for post-Brexit cases and the accrual of any new cause of action post-Brexit for situations affecting trade between EU member states (which clearly is within scope of the power), the removal of rights of action for past breaches of Articles 101 and 102 for pre-Brexit facts would be ultra vires section 8. It does not fall within any of the defined situations of “deficiency” in section 8(2) of the EU(W)A. As such, Regulation 62 cannot be interpreted as at all concerned with pre-Brexit scenarios. It clearly (and lawfully) just removed from domestic law the right to rely upon, and bring new cases in connection with, Articles 101 and 102 for new facts arising from IP completion day.
- Thirdly, once that is appreciated, it is true that paragraph 14(2) of Schedule 4 to the 2019 Regulations is indeed “otiose”, as Roth J states, in connection with Regulation 62. But there is no necessary connection or relationship between the two provisions. Paragraph 14(2) of Schedule 4 can be explained on the basis that Regulation 16 of the 2019 Regulations amended section 47A of the Competition Act 1998 to remove the reference to Articles 101 and 102 in relation to the Tribunal’s jurisdiction. Having expressly removed the Tribunal’s jurisdiction to hear proceedings in relation to such matters pursuant to Regulation 16, the drafters were probably concerned that such an amendment might be read as expressing the “contrary intention” for the purposes of section 16 of the Interpretation Act 1978 to remove the Tribunal’s jurisdiction to hear cases in relation to past breaches. As such, a saving was included (even if it may not have strictly been required). But, in any event, any redundancy is irrelevant, or at least immaterial. The position set out paragraph 14(2) of Schedule 4 to the 2019 Regulations is an accurate reflection of the operation of section 16 of the Interpretation Act 1978 (whether in connection with Regulation 16 or 62) and entirely consistent with the accrued EU law rights analysis. Many provisions of statutes are effectively declaratory or confirmatory of what would otherwise be the position in any event. This often is helpful for clarity and to put the point beyond doubt. What matters for present purposes, however, is that its existence in secondary legislation in respect of competition law only does not somehow bring the whole of the EU(W)A edifice crashing down.
In summary, for these reasons, there is no normative justification for the retrospective application of retained EU law; indeed, it leads to perverse outcomes.
Issue 4: omitted and misread precedent
The majority claim that the “notion of “accrued EU law” as a body of law separate from “retained EU law” is not one that has been recognised by the courts of the United Kingdom” ([69(5)]). Likewise, Roth J finds that “although some of the authorities appear to me to point to the contrary, on balance I consider that they give powerful support to a construction of the [EU(W)A] whereby rights which accrued under EU law prior to [IP completion day] thereby become rights under retained EU law…” ([133]). Although the judgments are correct to temper these conclusions on the basis that the relevant points have not been argued fully in any previous case, the claims are nonetheless incorrect for two reasons.
First, the CAT omits various authorities which demonstrate that its conclusions on Question 1 are flawed (and that the approach set out in the primer section above is instead correct):
- Gibfibre v Gibraltar Regulatory Authority [2021] UKPC 31 (“Gibfibre”): The Gibraltar Regulatory Authority appealed to the Privy Council against a decision of the Court of Appeal of Gibraltar that held that it had power under the EU’s Access Directive (2002/19/EC) and Framework Directive (2002/21/EC) to grant the respondent, Gibfibre, access to a data centre. This followed a decision, in February 2017, of the Gibraltar Regulatory Authority in which it concluded that it did not have the legal powers to grant such access. Considering that the decision was well before both “exit day” an “IP completion day”, the parties properly “agree[d] that Gibraltar law has properly implemented EU law” and the case was “argued below and before the Board by reference to EU law” ([10]). As the Privy Council itself stated, the appeal “falls to be decided by reference to the law prevailing at the date of the decision” ([10], emphasis added), despite the case being heard after IP completion day.
The case was not analysed through the prism of retained EU law. For instance, there was no consideration of whether the relevant provisions of the directive were “of a kind” so as to be retained in the first place, or any consideration of whether the directive had been modified or revoked by any so-called “EU Exit Regulations” pursuant to section 8 of the EU(W)A. Nor was there any consideration of whether any domestic legislation post-dating IP completion day saved rights of action to rely upon the original EU law version of the directives (which is what on the CAT’s approach one would expect).
- Fratila v Secretary of State for Work and Pensions [2021] UKSC 53 (“Fratila”) concerned the scope of application of Article 18 TFEU, which prohibits discrimination on grounds of nationality. The facts of the case thus concerned the position prior to IP completion day. As Lord Lloyd-Jones stated for the majority:
“[t]his appeal is concerned solely with EU law as it applied in the United Kingdom while the United Kingdom was a Member State and during the transition period following the withdrawal of the United Kingdom from the European Union” ([1], emphasis added).
Again, as with Gibfibre, the Court did not analyse the matter through the prism of retained EU. For instance, there was no consideration of whether Article 18 TFEU had been retained, or modified or annulled, or whether cases were expressly permitted to be brought pursuant to domestic legislation post-dating IP completion day.
- Anan Kasei Co. Limited, Rhodia Operations SAS v Neo Chemicals & Oxides (Europe) Limited (and others) [2023] EWCA Civ 11 (“Anan Kasei”) concerned a case of alleged patent infringement with all the underlying facts happening well before IP completion day (see [1]-[12]). The Court relied upon Article 3 of the Enforcement Directive (which had not been fully implemented in domestic law), meaning that remedies for infringement of intellectual property rights should be applied in a manner that complied with Article 3: [84]. Arnold LJ held at [85] (emphasis added):
“I see no reason to doubt, in the absence of any argument by Rhodia to the contrary, that this principle forms part of retained EU law within section 6(7) of the European Union (Withdrawal) Act 2018. In any event, the present case was commenced when the [UK] was a Member State of the EU (indeed, before the referendum on 23 June 2016) and the infringing acts relied upon by Rhodia were all committed well before 31 December 2020. In those circumstances it would be surprising if the applicable law was affected by Brexit, and Rhodia did not argue that this was the case.”
The Court went on correctly to consider and apply Article 3(2) of the Enforcement Directive (i.e. EU law) without any consideration of whether the Directive also now formed part of retained EU law, or had been modified or annulled, or whether there was any new domestic legislation positively permitting such cases to be continued or brought.
- Match Group LLC v Muzmatch [2023] EWCA Civ 454 (“Match”) concerned whether honest concurrent use was a separate defence to a trade mark infringement claim. At [115] Arnold LJ stated that (emphasis added):
“In my judgment the judge was correct that honest concurrent use is not a separate defence, but a factor in the infringement analysis. As discussed above, neither the [EU’s] EUTM Regulation nor [EU] Directive 2015/2436 nor the 1994 Act provide for a defence to infringement on the ground of honest concurrent use. Even if it were open to an English court to read such a defence into the 1994 Act as a matter of domestic law, which may be doubted, it is clear that this is not permissible as a matter of EU law (and the Defendants have not suggested that, with respect to acts committed since 31 December 2020, this is now possible as a result of Brexit despite the heavy imprint of retained EU law in this field).”
This passage demonstrates an acute understanding of the need to consider EU law for the period prior to IP completion day (31 December 2020) and retained EU law for acts committed thereafter only.
- Harrington v SSWP [2023] EWCA Civ 433 (“Harrington”) concerned the interpretation of an EU Regulation and Articles 45 to 49 TFEU (free movement). All the relevant facts and matters took place before IP completion day. Again, like the cases cited above, the Court (correctly) applied EU law without any mention of the EU(W)A, retained EU law, or any post-IP completion day legislation that may or may not have expressly saved rights of action.
- Robinson (Jamaica) v SSHD [2020] UKSC 53 (“Robinson”): This appeal raised the issue as to whether a third-country (i.e. non-member state) national otherwise benefiting from the derivative right to reside within the territory of the European Union enjoys enhanced protection against deportation, such that she can be deported in exceptional circumstances only: ([1]). The underlying facts were all pre-exit day and pre-IP completion day – indeed, the relevant decision was in 2012: [16]. The Court went on to apply EU law, as it stood: see [31] onwards.
Indeed, the Court specifically considered whether Brexit caused any impact on the appeal: [28]-[30]. Whilst at [29] the Court set out what the law would be for facts and matters after IP completion day (i.e. not the facts of the case), it then expressly stated at [30] (emphasis added): “The present position is that the United Kingdom’s withdrawal from the EU has no impact on this appeal but the legal principles to be applied may change after 31 December 2020 at 11pm.” The appeal in Robinson was heard on 16 November 2020 and judgment handed down on 16 December 2020 i.e. before IP completion day: that explains the reference to the legal principles “may” changing after 31 December 2020 – but importantly the default implication is that the this would be for new facts and matters unless the legislation expressly or by necessary implication operated retrospectively. The EU(W)A does not.
- Miller I: The Supreme Court’s judgment in Miller I obviously pre-dated Brexit and the enactment of the EU(W)A. However, it is somewhat telling that, in relation to what was then known as the “Great Repeal Bill” that eventually became the EU(W)A, the Supreme Court expressly assumed that the repeal of the ECA would not in and of itself retrospectively remove rights based on rights flowing from section 2(1) of the ECA, but that such accrued rights would persist (and be distinct from replicated (i.e. retained) rights):
“70… Some of these rights have already been embodied in UK law by domestic legislation pursuant to section 2(2) of the 1972 Act, and they will not cease to have effect upon the United Kingdom’s withdrawal from the European Union (unless the domestic legislation giving effect to them is repealed in accordance with the law), although the Court of Justice will no longer have any binding role in relation to their scope or interpretation. Other rights, arising under EU Regulations or directly under the EU Treaties [i.e. through section 2(1) of the ECA], will cease to have effect upon withdrawal (save in relation to rights and liabilities already accrued), but many could be replicated in a new statute – eg the proposed Great Repeal Bill. But, as the Divisional Court pointed out, the need for such replication would only arise because withdrawal from the EU Treaties would have abrogated domestic rights created by the 1972 Act of effect, and again the Court of Justice would no longer have any binding role in relation to them.” (emphasis added)
This is the exact approach that was ultimately adopted, yet which the CAT (holding that “no such thing” as accrued EU law rights exist in law ([69(2)(iv)]) wrongly eschews.
Second, the CAT’s dismissals of various other cases which accord with the above and support the Claimants’ approach to Question 1 are also flawed:
- News Corp UK & Irland Ltd v HMRC [2023] UKSC 7 (“News Corp”) concerned the interpretation of EU VAT directives as applied to the facts falling before IP completion-day. Lord Hamblen and Burrows, in the leading judgment with which Lords Hodge and Kitchin agreed, stated at [7] that:
“It is common ground between the parties that the withdrawal of the UK from the European Union (“EU”) has no impact at all on the issues in this case. While the UK was part of the EU, VAT was governed by EU Directives and those Directives were implemented in the UK by domestic statutes, in particular by the VAT Act. By reason of the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020, the relevant EU law and EU derived domestic legislation is “retained EU law” after the implementation completion day (31 December 2020) but, in any event, the period with which this case is concerned expired before the implementation completion date.”
The majority, at [69(5)(iii)], focussing on only the last emphasised quoted above, claim that this passage amounts “to no more than a loosely worded statement that – in this case – there was no difference between the law of the United Kingdom post-IP completion day and the law as it stood immediately before exit day”. The passage is, however, far from a “loosely worded” throwaway comment: it reflects accurately the distinction between applying EU law for facts and matters before Brexit, and applying retained EU law only thereafter. In any event, what matters is what the Supreme Court actually did: it applied the EU Directives (not any retained version thereof) without considering whether they had been retained and, if they had, whether they had been modified or repealed subsequently.
- Balogun v Secretary of State for the Home Department [2023] EWCA Civ 414 (“Balogun”) was an immigration case concerned with the right to reside in the United Kingdom conferred by EU Directive 2004/38/EC. As the Court of Appeal noted at [1]: “This case concerns rights to reside in the United Kingdom which were conferred by EU law and in particular by Directive 2004/38/EC (‘the Directive’) before 31 December 2020” (emphasis added). Again, like the above cases, the Court correctly applied the EU law without considering the matter through the prism of retained EU law. The majority in Interchange, however, states that the case does not “touch[] upon the central question arising before us, namely whether the repeal of the 1972 Act brought into play section 16 of the Interpretation Act 1978… [the case] assists neither side’s contentions” ([69(5)(iv)]). This is wrong. The case demonstrates the application of rights accrued under EU law prior to IP completion day (rather than retained EU law) which were enforced after IP completion law. Moreover, as Roth J notes (apparently dissenting on the majority’s interpretation of Balogun) at [128], the Court considered a post-IP completion day CJEU case (X):
“There is no suggestion in the judgment that as a post-IP [completion day] decision X was not binding, and that under s.6(2) of the [EU(W)A] the Court could at most “have regard” to it, but was not even obliged to do that. Indeed, there is no referenced to s.6 in the judgment at all… Accordingly, Balogun seems to have proceeded on the implicit assumption that the rights asserted under the directive were not affected by the repeal of the [ECA].”
- TuneIn Inc v Warner Music UK Ltd & Anor [2021] EWCA Civ 441 (“TuneIn”): I have summarised the facts and conclusion of this case before. Roth J considered, at [126], that this case is “significant” and supports the CAT’s approach:
“…what is relevant for present purposes is that all three members of the Court of Appeal (Sir Geoffrey Vos MR, Arnold and Rose LJJ) had no doubt that for the purpose of the case before them they had that power, pursuant to s. 6(5A) of the [EU(W)A] and the regulations made thereunder. Since s. 6 applies only as regards the interpretation of retained EU law, the facts of the case, concerning alleged infringement of copyright pre-IPCD, were regarded as coming within the scope of retained EU law. Moreover, as regards decisions of the CJEU given post IPCD, Arnold LJ considered that it was not binding but that the court could “have regard” to it on the basis of s. 6(2), and on that basis he held that it was highly persuasive: [90]-[91]. This approach is of course entirely inconsistent with the proposition that for rights which accrued pre-IPCD, s. 6 has no application and subsequent decisions of the CJEU are binding.”
This is a curious explanation of TuneIn in circumstances where the Arnold LJ recorded at [76] that the appellant’s counsel “explained that TuneIn accepted that it would only be possible for this Court to depart from the CJEU’s case law with effect from 1 January 2021, and thus the point would only be relevant to the continuing availability of an injunction from that date, not to financial remedies for infringements prior to that date”. The Court’s subsequent findings and approach must be seen in this context i.e. as applying to situations in which retained EU law is, in fact, in play (as in TuneIn for the purposes of injunctive relief after IP completion day only). The judgment in fact supports the Claimant’s approach in Interchange of distinguishing between accrued EU law and retained EU law (just as Arnold LJ’s other two judgments discussed above do, too).
As such, the CAT’s approach is contrary to precedent.
Issue 5: it didn’t have to be this way
It is evident that the CAT felt driven to reach its conclusion on Question 1 (namely that there is no such thing as accrued EU law) out of concerns that the existence of accrued EU law would necessarily result in it being bound by post-IP completion day case law which would, in its view, create: an “immediate and unavoidable procedural vacuum” ([69(2)(iii)]; “unresolvable uncertainty” ([69(2)(iv]); a “recipe for confusion” ([69(2)(v)]; “unreasonably complex and uncertain” consequences ([71]); and “various difficulties” ([117]). In essence, each of these purported issues revolve around the proposition that the existence and vindication of rights under accrued EU law would mean the application of two parallel regimes whereby new CJEU case law would remain binding for the historic, pre-Brexit part of any claim (based on EU law), but would not be binding for any new, post-Brexit part of any claim (based on retained EU law).
This conclusion is, however, a non sequitur. As I explained in the final point in the primer section above, there is no automatic or necessary reason why the application and enforcement of accrued EU law rights pursuant to the continuing operation of section 2 of the ECA and sections 1A and 1B of the EU(W)A (the answer to Question 1) means that new, post-IP completion day CJEU case law must remain binding in connection with it (the answer to Question 2). The answer to Question 2 depends on an independent enquiry concerning whether section 6(1)(a) of the EU(W)A nonetheless evinces the “contrary intention” for the purposes of the Interpretation Act 1978 with the result that new case law is not binding in respect of accrued EU law rights either.
The CAT, however, appears to proceed on an assumption that, if they were to find accrued EU law rather than retained EU law to be in play, there is no escape from finding that new CJEU jurisprudence is binding. Although there are arguments each way, it is, however, perfectly reasonable to read section 6(1)(a) of the EU(W)A retrospectively as applying to both retained EU law rights cases and accrued EU law rights cases. For example, much of what Roth J states at [106], [110]-[111] and [113]-[114] could pertain when answering Question 2 even if one were to answer Question 1 differently to that set out in both judgments in Interchange (as I do).
In short, there is thus no need to ‘reverse engineer’ the result that the CAT clearly wanted to achieve by forcing the analysis through the retained EU law prism. The same result could be achieved even if accrued EU law rights were recognised as being vindicated.
The silver lining
It will come as no surprise, therefore, that my view is that the CAT in Interchange has gone seriously astray by departing from the position set out in the ‘primer’ section above. Thankfully, therefore, there is a silver lining: the dicta are not binding. The entirety of section C of the majority’s judgment and all of Mr Justice Roth’s concurring judgment are expressly obiter dicta: “[g]iven the conclusion we have reached in relation to the Volvo Decision, the question of whether we are obliged to follow that decision does not have to be answered” ([34] and [84]). Moreover, the question has, in any event, been answered by different routes by a non-unanimous panel, which does not bind other panels of the Tribunal or any higher courts. For the above reasons, hopefully the obiter reasoning is not adopted in any ratio onwards and upwards. Otherwise, the cat will well and truly be out of the bag…
Disclaimer: for the avoidance of doubt, I have not been, and am not at the time of writing this post, instructed by any parties in the Interchange or Merricks proceedings, and have not been paid by any client to produce the above blog post (or indeed any other). The above (like all my posts) represents my own views (as reflected previously here and here) in my personal capacity, and does not necessarily represent the view of any client or any other member of chambers.
Share this post on social media: