Javan Herberg

Javan Herberg has acted both for and against regulatory bodies, including FSA/SIB, SFA, IMRO, PIA, ICS, LME, FOS, designated professional bodies and overseas regulators in a considerable number of recent cases.  He regularly appears before the Financial Services and Markets Tribunal.  He is recommended as the sole leading junior in the field by the Legal 500, and by Chambers UK.

He has advised extensively in relation to the Financial Services and Markets Act 2000 (“FSMA”).  During the passage of the Bill, his Advice with Lord Lester QC on its human rights implications was considered by the Joint (Lords/Commons) Committee on Financial Services and exhibited to their First Report (HC 328-I/HL Paper 50-I).  Since the coming into force of FSMA, he has advised regulators, approved persons and others on aspects including collective investment schemes, market abuse provisions, restitutionary obligations, financial promotion provisions and disclosure obligations.  He advised extensively in relation to major FSA investigations into Split Capital Investment Trusts and SCARPs (“Precipice Bonds”).

He acted for the FSA in Commercial Court proceedings brought by Knight Williams Ltd seeking damages for breaches of duty and contract, involving issues of the FSA’s statutory immunity from suit and allegations of bad faith, and for FSA in the first challenge by way of judicial review to the section 56 Prohibition Order regime: R (Davis) v Financial Services Authority [2003] 1WLR 1284, Lightman J; [2004] 1 WLR 185 (Court of Appeal).  He acted for FSA in the first market abuse case to be referred to the Financial Services and Markets Tribunal, Paul (“The Plumber”) Davidson and Ashley Tatham v FSA; on a reference to the Tribunal by Sir Philip Watts, arising out of the Shell Overstatement of Oil Reserves affair; and in R (Headstart Advisers Ltd v FSA (judicial review of FSA decision relating to assistance given on overseas regulator’s request under FSMA, raising issues of the existence and extent of a corporate privilege against self incrimination, and the extra-territorial application of the Human Rights Act 2000).  He is currently acting for HM Treasury in applications for judicial review of the legislation providing for compensation for shareholders of Northern Rock.

Javan Herberg regularly acts for companies and individuals facing investigative or regulatory action.  He represented SBC Warburg in substantial SFA proceedings; for Yukos Oil in a judicial review of the FSA and Stock Exchange decision to list Rosneft (R (Yukos Oil) v. FSA and Stock Exchange [2006] EWHC 2044); for ANZ bank in substantial Commercial Court proceedings brought be Chilean investors in respect of emerging market debt instruments (Zaeta; Altman; Alaluf v. ANZ); and for the successful claimant at trial in the Chancery Division in the first claim against a product provider for wrongly advising on a pension transfer (Walker v. Scottish Equitable [2007] EWHC 1858).  He has recently represented individual market makers facing market abuse allegations before the RDC, and individuals facing civil and criminal market abuse/insider trading allegations, corporate bodies in relation to FSA investigations into financial promotions and retail products, and major institutions in relation to FOS determinations relating to endowment products.

Earlier, Javan Herberg acted for SIB in a consultative role during the development of the section 59 FSA disqualification power, appearing as sole counsel in the first case in which the power was exercised (Re Section 59 of the FSA, Peter West, and Paul Bingham (published decision of the Financial Services Tribunal, 1994)) and in a number of subsequent s.59 cases.  He also acted for SIB in cases of refusal of direct authorisation (for example, Re Section 26 of the FSA and Ancrum Evans (published decision of the Financial Services Tribunal, October 1995)).  For IMRO, Javan Herberg regularly acted as sole counsel in many of IMRO's contested cases involving refusal of individual registration, and also appeared in the Morgan Grenfell Companies' and Individuals' disciplinary actions, arising out of the Peter Young unit trusts affair (the settlement of the Companies' action in December 1996 involved the largest ever regulatory fine; the individuals' settlements in 1998 were the first exercise by IMRO of its disciplinary powers over individuals).  For SFA, he acted in the “Flaming Ferraris” disciplinary proceedings against James Archer and other CSFB employees, which also involved a challenge to the SFA's disciplinary procedures on Human Rights Act grounds (published decision, August 2001).  He advised extensively in relation to the impact of the Human Rights Act upon enforcement procedures of the self-regulatory organisations.

Javan Herberg has also acted for regulators and, against regulators, for banks and other large financial institutions and individuals, in cases involving (inter alia) Maxwell-related pension fund matters; hedge fund litigation; pensions transfers; endowment policy sales and other product mis-selling cases; futures and options trading; trading in other synthetic derivatives products (for SBC Warburg in substantial disciplinary proceedings brought by SFA); insider dealing allegations; metals and other commodities trading (including on LME); collective investment schemes (for ostrich owners against SIB); financial promotions; and insolvency (for the Insolvency Practitioners Association).  He has acted as legal adviser to the Institute of Actuaries disciplinary panel.

Javan Herberg has also acted for clients under DTI investigation; in directors' disqualification cases; for banks and solicitors in relation to money laundering issues (both in this country and in offshore jurisdictions) and (in an advisory capacity) for the Hong Kong Securities and Futures Commission.

Javan Herberg has acted in a wide range of commercial disputes, and is recommended as a leading junior in the field by the Legal 500 (p.609/610).  He has particular experience of telecommunications (below), and civil fraud and asset recovery cases involving Freezing, Search and Seizure and other pre-emptive Orders, and acted for HRH Prince Jefri Bolkiah against the State of Brunei in asset recovery litigation in Brunei, the UK and elsewhere.  He is included as a legal expert in fraud (asset recovery) and commercial litigation by Legal Business (Legal Experts, 2007).  He has particular experience of money laundering regulations and Companies Act requests for disclosure, both in the UK (including the Channel Islands jurisdiction) and overseas.  He has acted in a number of tax and revenue matters including Optigen v Commissioners of Customs & Excise [2006] Ch 218; [2006] 2 CMLR 18 (ECJ), involving VAT and carousel frauds.

He has extensive experience in the area of telecommunications.  In the UK, he has acted for Oftel (in a statutory challenge to termination charges for NTS services (Energis v Oftel, 2002)); for Orange (R v Secretary of State for Trade and Industry ex p. Orange Personal Communications Services [2001] CMLR 36; power to insert "significant market power" triggers into mobile licences); for Vodafone (R (Vodafone and others) v Competition Commission and Oftel, 2003 (challenge to Competition Commission report recommending reduction of mobile call termination charges); and recently in H3G v. Vodafone and others [2008] EWHC 50 (Comm), successfully resisting for Vodafone an application for pre-action disclosure in substantial threatened competition law claim by H3G against the other mobile phone companies for collusion and abuse of dominant position.  Overseas, he has over a number of years advised and appeared for Cable & Wireless group companies in a considerable number of cases in (inter alia) Bermuda, Jamaica, Cayman, Dominica, Trinidad & Tobago, St Kitts, Antigua, Barbados, Anguilla and British Virgin Islands, involving issues such as construction of licences; by-pass and interconnection; arbitration clauses; and the effect of constitutional freedom of expression and property guarantees on exclusivity.  He acted for CWD in the Privy Council in Marpin Telecoms and Broadcasting v Cable & Wireless Dominica [2001] 1 WLR 1123, which involved issues of telecommunications exclusivities, by-pass, licensing and freedom of expression.

He also has experience in fields including reinsurance (the Weavers litigation), competition, banking (acting for ANZ Bank in emerging market debt litigation: Altman and others  v ANZ (ongoing,  Comm Ct); Suisse Security Bank and Trust Ltd v Governor of Central Bank of The Bahamas [2006] 1 WLR 1623; acting for SSBT in claim relating to revocation of banking licence and appointment of Receiver), and other financial services litigation (Walker v. Scottish Equitable Plc [2007] EWHC 1858 (ChD).  He acted for British Steel in a restitutionary claim for over £20m in duty (British Steel Plc v Customs & Excise [1996] 1 All E.R. 1002 (Q.B.D.); [1997] 2 All E.R. 366 (C.A.); April 1999 (CA)).  He acted as junior counsel in Shocked v Goldschmidt [1998] 1 All E.R. 372 (C.A.).

Javan Herberg is recommended as a leading junior in the judicial review/public law field by both the Legal 500 (p.667) and Chambers & Partners (p.1253).  He is a member of the Attorney-General's "A" Panel List of counsel, and is Treasurer of the Constitutional and Administrative Law Bar Association.  He has acted for both Respondents and Applicants, either as sole Counsel or with Leading Counsel, in cases (both domestic and EC) in a variety of public law and human rights contexts, particularly involving commercial or regulatory issues.  Fields include broadcasting (including BBC and commercial radio); newspapers; telecommunications (see above); electricity and other privatised utilities; railways (including Railtrack/Network Rail and London Underground PPP, and for the Rail Regulator); civil aviation; drugs licensing; DTI Notices for production of documents; local authorities; health authorities; port authorities; industry training boards; corporations established by royal charter; lotteries; environmental regulation, professional discipline; regulation (advising regulators such as the Law Society, FSA, Institute of Actuaries, Oftel, Pensions Ombudsman, HEFC, Audit Commission, Civil Aviation Authority); university funding and revenue and VAT matters.  He has regularly acted for the Legal Services Commission in defending claims for judicial review.

Interesting cases include R v Higher Education Funding Council ex p. Institute of Dental Surgery [1994] 1 WLR 242 (natural justice; right to reasons for HEFC decision); R v Broadcasting Complaints Commission ex p. BBC [1995] 7 Admin L.R. 575 (power of BCC to entertain group complaints; natural justice); R v Secretary of State for the Home Department ex p. Barr [1995] 7 Admin L.R. 157, Court of Appeal (challenge to police disciplinary powers);  R v Secretary of State for Social Security ex p. G [1997] 3 FCR 728 (power to draw inference from refusal to take DNA test); R v Legal Aid Board ex p. Eccleston [1998] 1 WLR 1279 (prior authorisation of travel expenses); R v Manchester Stipendiary Magistrate ex p. Granada Television [2001] 1 AC 300 (HL) (validity of search warrant issued in Scotland for execution in England); R v Secretary of State for Health ex p. Imperial Tobacco Ltd and others (January 2000; judicial review of government report on passive smoking); R v Secretary of State for Trade and Industry ex p. Orange, The Times [2001] CMLR 36 (lawfulness of insertion of Conditions into telecommunications licence); R v Medicines Control Agency ex p. Novartis (ECJ, 2002)  and ex p. APS (ECJ, 2004) (drugs licensing and effect of Generics decision); R v Environment Agency ex p. Mayer Parry Recycling (2001) Env LR 35, 630 (interpretation of European waste directives); R v London Underground Ltd ex p. Kiley and TfL (Admin Ct, July 2002) (legality of LU’s PPP arrangements; acting for successful PPP interveners); R v Special Commissioner ex p. Morgan Grenfell & Co [2003] 1 AC 563 (HL) (power of Revenue to obtain production of legally privileged material); Transco Plc v Leicestershire CC, The Times, 7 November 2003 (CA) (statutory penalties for road works); Koziol v Davies [2004] EWHC 1254 (challenge to a petition to the Privy Council for a new charter on behalf of the Royal Pharmaceutical Society); R (Harry Roberts) v Parole Board and Home Secretary [2004] 2 All ER 776 (challenge to Parole Board decision to use “special advocate” procedure in parole board hearings); R (Davis) v FSA [2004] 1 WLR 185 (CA) (financial services prohibition power; alternative remedies); R (Hampstead Heath Winter Swimming Club) v Corporation of London, Stanley Burnton J, 26 April 2005 (acting for Hampstead Heath swimmers in challenge to refusal to permit winter swimming on the Heath; health & safety legislation and obligations of public bodies to prevent consenting adults from engaging in risky activities); R (Keating and others) v Cardiff Local Health Board, Moses J, 23^rd March 2005 (powers of Health Board to fund non-“core health” projects; on appeal); R (The Christian Institute) v BBC; R (Stephen Green v. City of Westminster Magistrates Court [2007] EWHC 2785 (acting for BBC in judicial reviews relating to screening of “Jerry Springer-The Opera”; blasphemy); W v Metropolitan Police Commissioner [2005] 1 WLR 3706 (Div Ct); [2006] 3 All ER 458 (Court of Appeal) (acting for under 16 year old in HRA challenge to “child curfew” power in Anti-Social Behaviour Act 2003); R (Teeside Power Ltd) v. Gas and Electricity Markets Authority (judicial review of Ofgem decision in relation to the amendment of the balancing and settlement code, judgment awaited); R (TNT Post) v. HMRC, Royal Mail intervening (currently on reference to the ECJ; acting for Royal Mail on challenge to its VAT exemption); R (Pam Smith) v. NE Derbyshire PCT [2006] Lloyds Rep Med 425 (for Secretary of State on judicial review relating to consultation obligations on NHS bodies); R (Yukos Oil) v. Financial Services Authority and Stock Exchange [2006] EWHC 2044 (admin) (acting for Yukos on application to restrain listing on stock exchange of Rosneft, on basis of ownership of expropriated assets).

He advises and appears regularly in public procurement litigation, including recently R (Law Society) v. Legal Services Commission [2007] EWHC 1848 (Admin); [2007] EWCA Civ 1264 (acting for Law Society in successful judicial review of LSC’s introduction of the new Unified Contract for civil legal aid); R (Risk Management Partners) v. Brent LBC and and others (Administrative Court, 2008; on appeal) (acting for RML on successful challenge to London borough councils’ participation in mutual insurance, both on public procurement (Teckal exemption) and vires grounds.

He has advised and written extensively on the effect of the Human Rights Act, in fields as diverse as financial services (referred to above); regulation of utilities (including advice on the Utilities Act 2000 in relation to competition matters); anti-terrorism legislation; and religious freedom.

In addition, Javan Herberg regularly appears in Privy Council matters, including Tan Te Lam v Superintendent of Tai Chua Detention Centre and Attorney-General of Hong Kong [1997] AC 97 (legality of detention of Vietnamese migrants); Ming Pao Newspapers Limited v Attorney-General of Hong Kong [1996] AC 907 (freedom of expression; legality of restriction upon newspaper's freedom to publish details of Corruption Commission investigation); Marpin v Minister for Telecommunications, Dominica [2001] 1 WLR 1123 (compatibility of telecommunications exclusivity with constitutional freedom of expression guarantee); Rojas v Attorney-General of Gibraltar [2004] 1 WLR 201 (constitutionality of all-male juries law in Gibraltar); Carreras Group Ltd v Stamp Commissioner, Jamaica [2004] STC 1377 (capital transfer tax; Ramsay transaction); Fishermen and Friends of the Sea v Environmental Management Agency, Trinidad & Tobago (environmental impact assessment of gas pipeline). He has also appeared before the Privy Council in domestic appeals from the General Medical Council such as Gosai v GMC, The Times, 30 April 2003 (exercise of powers to prevent re-application to the register).

Other Posts and Publications:

Javan Herberg has written widely in both the public law/human rights and financial services/commercial fields.  In public law/human rights, he is a general editor of Lester, Pannick and Herberg, Human Rights Law and Practice (3^rd ed, forthcoming 2009), and was a contributing author to the first and second editions of the book.  He was the Assistant Editor for the supplement to de Smith, Woolf and Jowell, Judicial Review of Administrative Action (1998; Sweet & Maxwell).  Other publications include co-authorship of Constitutional and Administrative Law (Cavandish; 2^nd ed, 2000), case notes in Public Law and Judicial Review; book chapters in Current Legal Problems; co-author, "Determining Civil Rights and Obligations", Jowell & Cooper (eds), Understanding Human Rights Principles (Hart, 2001).  He has lectured in public law at University College London (1990-1993) and regularly at solicitors' firms and at conferences on a variety of public law, human rights and financial services topics. 

In the financial services/commercial fields, he is co-author of a chapter on the Financial Services and Markets Tribunal in A Practitioner’s Guide to FSA Investigations and Enforcement (City & Financial, 2005; 2^nd ed, 2008), and co-author of a chapter on Financial Services Investigations in the OUP Fraud Encyclopaedia (2008).

Javan Herberg is on the Attorney-General’s “A” Panel of Counsel.