High-profile UK lawyer recruited to steer CICRA probe

Monday 04 June 2018

A top UK lawyer that has appeared in over 30 cases before the European Court of Justice has been recruited to lead a government probe into the island’s competition watchdog.

Kassie Smith QC, of Monckton Chambers, will steer an investigation into how CICRA ‘incorrectly’ ruled that ATF Fuels had “abused” its market position, leading to legal proceedings that came at a cost of around £500,000 to taxpayers, due to be completed this summer.

The authority had claimed that ATF wrongly failed to supply an operator with fuel for resale and charged them more than previous suppliers, but the decision was thrown out by the Royal Court.

It was the fourth CICRA decision to be overturned in a decade, leading to questions over the organisation’s “fit for purposeness.”

Pictured: CICRA's decision against ATF was overturned in the Royal Court in January.

That will be examined as part of the review conducted by Ms Smith, who is a leading barrister in competition and regulation within the EU and has worked on high-profile cases involving mobile phone providers and airlines. 

She recently acted in two lengthy cases involving a Russian State-owned gas company, as well as appearing for Cable and Wireless in BVI and acting for smartphone manufacturer Huawei in the Patent Court.  She is also currently acting as a government adviser on the Fox/Sky merger. 

The QC’s investigation will specifically focus on “the circumstances leading up to the JCRA’s decision, whether the Regulator has discharged its legal responsibilities and duties appropriately, and whether there have been any significant deficiencies in the operation of the competition law”, and may also touch upon alternative ways to settle competition disputes. 

The first phases of the probe will involve reviewing documentary evidence, followed by meetings with key stakeholders. Interested parties are being invited to contact the States. The QC, whose salary sum has not yet been disclosed, is expected to complete her draft report by summer.

Pictured: Kassie Smith QC, who will conduct the review.

A report outlining the review's terms of reference outlined how States officials feel that, in light of the recent ATF case, it is now “difficult to be confident that the competition system, including the institutions that operate it, is working in the interests of the economy and consumers.” Such concerns were vehemently opposed by CICRA CEO Michael Byrne in an Express interview.

The decision to undertake a review follows a heated social media campaign and leaflets distributed through islanders’ doors by ATF highlighting their discontent with CICRA. In his final months in the States Assembly, former Senator Philip Ozouf, who helped set up CICRA, spearheaded efforts to bring the debate to the political stage, having publicly grilled Ministers over the regulator on several separate occasions over the past six months.

The news comes after CICRA announced a new set of performance measures for reviewing Ports of Jersey's services. The regulator said it would particularly focus on the timely arrival and departure of flights, queueing time at security and the efficiency of the baggage handling process at the airport; punctuality at the harbour; and waiting times for new berths at the marinas. Ports of Jersey said it welcomed the review.

Ports of Jersey welcomed the review, with CEO Doug Bannister adding that the group hoped CICRA would take inclement weather and technical issues into consideration - factors which, he said, are "out of Ports of Jersey's control."