Javan Herberg QC

Javan regularly acts both for and against regulatory bodies, including FSA; FSCS; LME; FOS; Take-over Panel; Pensions Regulator, Ombudsman and Protection Fund; Institute of Actuaries; Insolvency Practitioners Association; various accountants’ regulatory bodies; designated professional bodies and overseas regulators.  He regularly appears before the FSA’s RDC and in the Upper Tribunal/Financial Services and Markets Tribunal. He was for several years until taking silk classified as the sole top-band financial services junior in Chambers UK Directory.

He has advised extensively in relation to the Financial Services and Markets Act 2000 ("FSMA") and the Banking Act 2009.  During the passage of FSMA, 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).  He advises and represents regulators, approved persons and others in fields including market abuse and insider dealing; disciplinary, regulatory and restitutionary obligations; collective investment schemes;  senior management and compliance responsibilities; listing rules and disclosure obligations; futures and options trading and synthetic derivatives; structured products (e.g. Splits and Precipice Bonds); pensions transfers and pensions funding; and financial promotions. 

Javan has appeared in most of the recent major judicial reviews of regulatory action (PPI, Northern Rock, Yukos, Equitable Life).  He has also acted for clients under DTI investigation; in directors' disqualification cases; for banks and solicitors in relation to money laundering and other regulatory issues (both in this country and in offshore jurisdictions) and (in an advisory capacity) for the Hong Kong Securities and Futures Commission and Take-over Panel.  He has been instructed as an expert witness in overseas proceedings in relation to FSA conduct of business rules, and is currently leading for the QCFRA in the first regulatory discipline case to go before the Qatar Financial Centre Regulatory Tribunal.

• Currently involved in a number of substantial matters before the RDC or under FSA investigation, involving banking responsibility for lending decisions pre-credit crunch; hedge fund market abuse; and disclosure obligations in take-over context.
• R (BBA) v Financial Services Authority and Financial Ombudsman Service [2011] EWHC 999 (Admin); [2011] ACD 71
  Acted for British Bankers’ Association in challenge to FSA’s Policy Statement on Payments Protection Insurance complaints handling and FOS decisions on PPI complaints.  Judgement addresses significant issues relating to role of the FSA Principles in consumer redress and in the wider regulatory framework.
• FSA v Da Vinci Invest Ltd [2011] EWHC 2674 (Ch)
  Application on behalf of FSA for freezing orders and injunctions restraining market abuse under s.129 FSMA in respect of automated trading operation.
• R (SRM Global Capital and others) v HM Treasury (“Northern Rock”) [2009] BCC 251 (Div Ct); [2010] BCC 558 (Court of Appeal).
  Acted for HM Treasury on JR/Human Rights Act claim by Hedge Funds and other Northern Rock shareholders in respect of Chancellor’s decision to take Northern Rock into public ownership.  Case raises substantial issues of fair compensation for shares under ECHR, and nature of Lender of Last Resort lending by Bank of England. 
• Financial Services Authority v Visser and Fagbulu (Upper Tribunal, Tax & Chancery, 9 August 2011)
  Appeared for FSA at hearing of reference from FSA Decision Notice imposing substantial financial penalties and withdrawal of permissions on management of hedge fund (Mercurius).  Tribunal’s judgment imposed largest ever individual financial penalty.
• X v Pensions Regulator (Upper Tribunal, Tax & Chancery; 11 May 2011; on appeal to the Court of Appeal (NI))
  Appeared for persons connected with participating employer on reference from Pensions Regulator’s Contribution Notice imposing substantial contributions in connection with alleged shortfall in employer’s pension scheme. 
• Take-over Panel v Myerson, Padgett and Posen (Takeover Panel, April 2010; Take-over Appeal Board, July 2010)
  Acted for individual accused of participating in concert party in share purchases.  First exercise for over decade of Take-over Panel’s powers against individuals, and of its "cold shouldering" power.
• Winterflood Securities Ltd v Financial Services Authority [2010] Lloyd’s Rep FC 514 (CA)
  Acted for Winterflood in respect of market abuse charges arising out of market making operations on AIM.  First market abuse case to reach Court of Appeal, raising issues as to mental element required for market abuse and status of Code of Market Conduct.
• R (Equitable Life Members Action Group) v HM Treasury [2009] EWHC 2495 (Admin) (2009) 159 NLJ 1514
  Acted for EMAG in successful judicial review of Treasury decision to reject certain of the Ombudsman’s findings of maladministration and injustice, arising out of the Equitable Life saga.
• Arjo Wiggins Ltd v Ralph; Pensions Ombudsman [2010] Pens LR 11 (ChD)
  Acted for the Ombudsman on challenge to jurisdiction to entertain complaints alleged to be time-barred.
• Financial Services Authority v Photo-Me International Plc (FSMT, May 2010)
  Acted for FSA in case of delay in disclosing market (inside) information, contrary to Listing Rules, and Disclosure and Transparency Rules.  Resulted in larges fine of its type issued by FSA.
• Re Global Trader Ltd (In Liquidiation) [2009] 2 BCLC 18; [2009] BPIR 446 (ChD)
  Acted for representative creditors in insolvency proceedings to establish priorities of client assets in winding up of financial/derivatives trading company.  Case raised for first time issues as to proper interpretation of FSA client money rules.
• Bankas Snoras v Financial Services Authority (2008–2009)
  Acted for Lithuanian Bank challenging Supervisory Notices issued by FSA to prevent operation of UK banking subsidiary.  Case raised significant issues of ambit of Banking Directives and compatibility of implementing UK regime, as well as issues as to money laundering and financial crime regulation. Decision referred to FSMT; compromised in March 2009.

Earlier well known cases:

Javan acted for SIB in a consultative role during the development of the FSA disqualification power, appearing as sole counsel in the first (and subsequent) cases in which the power was exercised (Re Section 59 of the FSA, Peter West, and Paul Bingham (FST, 1994)).  For IMRO, Javan 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.  For SFA, he acted in the "Flaming Ferraris" disciplinary proceedings against James Archer and other CSFB employees (SFA Tribunal, August 2001).  He advised extensively in relation to the impact of the Human Rights Act upon enforcement procedures of the self-regulatory organisations.

He acted for the FSA in Commercial Court proceedings brought by Knight Williams 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; [2004] 1 WLR 185 (Court of Appeal).  He also acted for FSA in the first market abuse case to be referred to the FSMT, 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; in the major FSA investigation into Split Capital Investment Trusts and ensuing regulatory proceedings; 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).  He acted for 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 (to 2008) brought by multiplee Chilean investors in respect of emerging market debt instruments (Zaeta; Altman; Alaluf v. ANZ); for the Claimant in Walker v Scottish Equitable Plc [2007] Pens LR 347 (ChD) (claim for wrongful advice in connection with transfer of pension from occupational scheme to SIPP; what Financial Times reported to be the first case of product provider liability for advice on transfer); for Bahamian bank in Privy Council, challenging withdrawal of banking licence by regulator (Suisse Security Bank and Trust Ltd v Governor of the Central Bank of the Bahamas [2006] 1 WLR 1623).

Javan acts in a wide range of commercial disputes, specializing in particular in cases involving banking/financial services (see above), telecommunications/utilities (see below and in public law section), and civil fraud/asset recovery.  He has considerable experience of money laundering regulations , matters and Companies Act requests for disclosure, both in the UK (including Channel Islands) and overseas.  He has also acted in a number of tax and revenue matters.

• British Telecommunications v Ofcom [2011] EWCA Civ 245; [2011] 4 All ER 372
  Acted for Ofcom on appeal to Court of Appeal from Competition Appeal Tribunal’s decision as to its jurisdiction in hearing appeals from Ofcom’s dispute resolution function and power to admit fresh evidence.
• British Telecommunications v Ofcom; Everything Everywhere v Ofcom [2011] CAT 24 (Competition Appeal Tribunal, 1 August 2011; currently under appeal to CA)
  Acting as lead Counsel for Ofcom in series of linked appeals in CAT concerning charges for non-geographic number ranges.  Cases raise, inter alia, economic issues as to effect of BT’s wholesale charges calibrated by reference to mobile operators’ retail prices. 
• WRT Technology Ltd v Manor Grand Prix Racing Ltd (Commercial Ct, 2011)
  Acted for Virgin/Manor Formula 1 team in contractual dispute with designer/constructor; settled June 2011.
• Sans Souci Ltd v VRL Services Ltd (Privy Council, listed for hearing February 2012)
  Acting on appeal from Court of Appeal of Jamaica in relation to dispute concerning unlawful termination of hotel management agreement and arbitrators’ award.
• Re Global Trader Ltd (In Liquidation) [2009] 2 BCLC 18; [2009] BPIR 446 (ChD)
  Acted for representative creditors in insolvency proceedings to establish priorities of client assets in winding up of financial/derivatives trading company.  Case raised for first time issues as to proper interpretation of FSA client money rules.
• Veolia Water Central Ltd v London Fire and Emergency Planning Authority (QBD, December 2009) [2009] EWHC 3109
  Acted for water company in test case trial as to liability for repair of fire hydrants as between fire and water authority.
• National Transport Co-operative Society Ltd v Attorney General of Jamaica [2009] UKPC 48 (Privy Council, 26 November 2009; ongoing)
  Acted for Jamaican Government in appeal from arbitration proceedings involving franchise agreements for bus service provision.  Privy Council decision involves significant treatment of Allerdale/Waltham Forest cases on unenforceable agreements. 
• R (TNT Post) v HMRC and Royal Mail [2009] CMLR 18 (ECJ); ongoing
  Acting for Royal Mail on TNT’s challenge to the legality of the Royal Mail’s VAT exemption.  Case raises questions of compatibility of English legislation with Postal Directive and other EC instruments.  ECJ ruled on Reference in April 2009; follow on and existing claims ongoing.

Earlier well known cases:

• Walker v Scottish Equitable Plc [2007] EWHC 1858; [2007] Pens LR 347 (ChD) (claim for wrongful advice in connection with transfer of pension from occupational scheme to SIPP; what Financial Times reported to be the first case of product provider liability for advice on transfer).
• H3G v O2 UK Ltd, Vodafone Ltd, and others [2008] EWHC 50 (Comm); [2008] UKCLR 83, David Steel J, Commercial Ct
  Acting for Vodafone, successfully resisting application for pre-action disclosure in H3G’s substantial threatened competition law claim against other mobile phone companies for collusion and abuse of dominant position in relation to number portability.  Court held that jurisdictional criteria for pre-action disclosure were not fulfilled.
• Zaeta v ANZ Bank; Alaluf v ANZ; Altman v ANZ (to 2008)
  Substantial multi-Claimant Commercial Court litigation, settled 2008.  Acted for Australia and New Zealand Bank Group Ltd in proceedings involving considerable number of Chilean investors claiming against ANZ for losses suffered on emerging market debt instruments.
• GlaxoSmithKleine UK Ltd v Department of Health [2007] 2 All ER (Comm) 1140 (Commercial Court) (claim under Pharmaceutical Price Regulation Scheme in respect of sales of products sold pursuant to brand equalisation deals to fulfil generic prescriptions).
• Optigen Ltd v Customs & Excise Commissioners [2006] Ch 218; [2006] 2 CMLR 18 (European Court of Justice) (Scope of 6th VAT Directive, in context of alleged carousel fraud; leading case on position of innocent purchasers and sellers in “chain” transactions, and as to EC doctrine of abuse of rights).
• Suisse Security Bank and Trust Ltd v Governor of Central Bank of The Bahamas [2006] 1 WLR 1623 (revocation of banking licence)
• HRH Prince Jefri Bolkiah v State of Brunei (asset recovery litigation in Brunei, UK and elsewhere)
• British Steel Plc v Customs & Excise [1996] 1 All E.R. 1002 (Q.B.D.); [1997] 2 All E.R. 366 (CA) (restitutionary claim for duty). 
• Overseas, Javan 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 (see e.g. Marpin Telecoms and Broadcasting v Cable & Wireless Dominica [2001] 1 WLR 1123).

Javan appears in a very wide range of public law and human rights contexts, both for public bodies and for applicants.  He has particular expertise in the following fields (which are each treated under separate headings below): commercial regulation and professional discipline; civil liberties and human rights; public procurement and Privy Council matters.  He was, until his recent appointment to silk, a member of the Attorney-General's 'A' Panel List of counsel, and is Treasurer of the Constitutional and Administrative Law Bar Association. 

Commercial Regulation and Professional Discipline

Javan regularly appears in major public law regulatory challenges, in the Administrative Court and elsewhere.  In particular, he has acted in most of the recent major judicial reviews of regulatory action in the financial services field (PPI, Northern Rock, Yukos, Equitable Life).  He acts, for and against regulators, in fields including broadcasting (including BBC and commercial radio/TV); newspapers; post (for Royal Mail); telecommunications (see separate entry); electricity and gas (for Ofgem) and the Electricity Association; railways (including Railtrack/Network Rail; London Underground PPP; Rail Regulator); civil aviation (eg CAA, NATS); pharmaceuticals licensing; DTI document production notices; professional regulation and discipline (such as the Law Society, Bar Standards Board, FSA, Institute of Actuaries, Accountancy regulators (eg CIMA); OfCom, Pensions Ombudsman, HEFC, Audit Commission.  He has regularly acted for the Legal Services Commission in defending claims for judicial review and, overseas, advises foreign financial services regulators on a regular basis.

Current and recent work:

• R (BBA) v Financial Services Authority and Financial Ombudsman Service [2011] EWHC 999 (Admin)
  [2011] ACD 71
  Acted for British Bankers’ Association in challenge to FSA’s Policy Statement on Payment Protection Insurance complaints handling and FOS decisions on PPI complaints.
• R (Moneygram International Ltd) v HMRC [2011] EWHC 2323 (Admin), Holman J
  Acting for Moneygram on judicial review of HMRC decision as to method of charging for regulation of international money transfer services.  Permission granted, July 2011.
• R (SRM Global Capital and others) v HM Treasury ("Northern Rock") [2009] BCC 251 (Div Ct); [2010] BCC 558 (Court of Appeal).
  Acted for HM Treasury on JR/Human Rights Act claim by Hedge Funds and other Northern Rock shareholders in respect of Chancellor’s decision to take Northern Rock into public ownership.  Case raised substantial issues of fair compensation for shares under ECHR, and nature of Lender of Last Resort lending by Bank of England.
• R (Equitable Life Members Action Group) v HM Treasury [2009] EWHC 2495 (Admin)
  Acting for EMAG in successful judicial review of Treasury decision to reject certain of the Ombudsman’s findings of maladministration and injustice, arising out of the Equitable Life saga.
• R (TNT Post) v HMRC and Royal Mail [2009] CMLR 18 (ECJ); ongoing Administrative Court
  Acting for Royal Mail on challenge to legality of its VAT exemption.  Case raises questions of compatibility of English legislation with Postal Directive and other EC instruments.  ECJ ruled on Reference in April 2009; case continuing.
• EDF Energy v Westminster CC and others (Ofgem Determination, August 2010)
  Appeared as Counsel for Ofgem in determination relating to responsibility for cost of repairing electricity mains within Council blocks of flats.

Earlier well known cases:

• R (Teeside Power Ltd) v Gas and Electricity Markets Authority [2008] EWHC 1415 (electricity generators’ successful JR of Ofgem’s decision to continue to entertain proposals to amend the regime for transmission charges for electricity suppliers and generators)  
• Mubarak v General Medical Council [2008] EWHC 2830 (Admin) (Acted for GMC in High Court appeal from GMC Fitness to Practise Panel decision to strike off doctor for sexual misconduct). 
• R (Yukos Oil Company) v Financial Services Authority and The Stock Exchange [2006] EWHC 2044 (application seeking to restrain FSA/Stock Exchange decision to list Rosneft on the London Stock Exchange)
• R v Medicines Control Agency ex p. Novartis (ECJ, 2002) and ex p. APS (ECJ, 2004) (drugs licensing and effect of Generics decision)
• R (Davis) v FSA [2004] 1 WLR 185 (CA) (financial services prohibition power; alternative remedies)
• Gosai v General Medical Council [2003] UKPC 31 (Privy Council; doctor’s appeal against GMC’s exercise of power to prevent re-application to the medical register.

General Public Law

• R (Cordant Group) v Secretary of State for Business Innovation and Skills (Administrative Court, December 2010)
  Acted on challenge to Government decision to amend National Minimum Wage regulations to exclude operation of travel and subsistence schemes.
• R (Law Society) v Lord Chancellor [2010] 5 Costs LR 805 (Divisional Ct)
  Acted for Law Society in successful challenge to amendment to criminal defence costs regime to permit recovery of inter partes costs only at legal aid rates.
• R (UNISON) v Monitor [2010] PTSR 1827 (Administrative Court)
  Acted for Secretary of State on Union challenge to Monitor’s interpretation of the "private patient cap" regulating permitted private income earned by Foundation Hospitals.
• R (P) v Secretary of State for the Home Department [2009] EWCA Civ 701; Times 23 July 2009 (Court of Appeal)
  Acted for Secretary of State on prisoner’s claim Art 2/Art 3 ECHR investigation into treatment whilst on remand.
• R (Law Society) v Legal Services Commission [2008] QB 737 (CA); [2007] Eu LR 94 (Admin Ct)
  Acted for Law Society on challenge to LSC’s introduction of the Unified Contract for civil legal aid. Court held that LSC had breached public procurement regulations in introducing new Contract which contained wide power of unilateral amendment.
• Primary Health Investment Properties v Secretary of State for Health [2009] EWHC 519; [2009] ACD 57 (Admin Ct)
  Acted for Secretary of State on Article 6 ECHR challenge to procedure and process for valuing GP premises.
• R (Khan) v Parole Board and Secretary of State for Justice [2009] EWHC 756 (Admin)
  Acted for Secretary of State defending claim by prisoner serving indeterminate sentence for public protection, seeking habeas corpus/release for delay in convening Parole Board hearing, involving Art 5 (right to liberty) issues.

Earlier well known cases:

• R (Pam Smith) v NE Derbyshire PCT [2006] 1 WLR 3315 (CA); [2006] Lloyds’ Rep Med 425 (Admin Ct) (consultation obligations on NHS bodies under statute).
• 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).
• 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 v Special Commissioner ex p. Morgan Grenfell & Co [2003] 1 AC 563 (HL) (power of Revenue to obtain production of legally privileged material)
• R v London Underground Ltd ex p. Kiley and TfL (Admin Ct, July 2002) (legality of LU’s PPP arrangements).
• 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 Environment Agency ex p. Mayer Parry Recycling (2001) Env LR 35, 630 (interpretation of European waste directives).
• R v Higher Education Funding Council ex p. Institute of Dental Surgery [1994] 1 WLR 242 (natural justice; right to reasons for HEFC decision).

Civil Liberties and Human Rights

Javan regularly acts in public law cases involving human rights issues (see above under general public law, and commercial regulation, including recent cases such as Northern Rock and P v Secretary of State for the Home Department). He also acts in civil liberties cases including in particular freedom of expression (in media cases), elections, and privacy/freedom of movement.   He is a general editor of the leading textbook, Lester, Pannick and Herberg, Human Rights Law and Practice (Butterworths, 3rd edn, 2009).

Current and recent work

• R (Stephen Green) v City of Westminster Magistrates Court [2007] EWHC 2785 (Admin) (Divisional Court) ("the Jerry Springer case")
  Acted for Director-General of BBC in judicial review by Christian Group of Magistrate’s refusal to issue summons for the private prosecution of the DG for blasphemy in transmitting "Jerry Springer - the Opera".  Divisional Court held that common law offence of blasphemy had been abolished by statute in respect of broadcast material and material performed in a theatre, and considered human rights arguments as to why blasphemy was incompatible with the Convention.
• R (Craig) v BBC (February 2008)
  Resisted application for judicial review and interim relief by candidate for Christian People’s Alliance to require BBC to broadcast further party political broadcast before London Mayoral election on basis of alleged censorship of earlier broadcast.
• R (Ayob Khan) v Election Commissioner (July 2009)
  Appeal from Election Court decision relating to electoral malpractice in Birmingham.  Appeared for Secretary of State, on issues relating to powers and procedure under Representation of the People Act 1983.

Earlier well known cases

• R (W) v Metropolitan Police Commissioner [2005] 1 WLR 3706 (Div Ct); [2006] 3 All E R 458 (Court of Appeal)
  The Richmond "child curfew" case.  Represented child W in challenge to Anti-Social Behaviour Act 2003 power enabling a police officer to remove to his or her home any under 16 year old found unaccompanied in a designated area.  The Divisional Court "read down" the power so as to prevent the police from using force to effect a removal if the child declined to co-operate; appeal allowed by the Court of Appeal, on basis power could not be used as a "curfew" power.
• R (Hampstead Heath Winter Swimming Club) v Corporation of London [2005] 1 WLR 2930 (Stanley Burnton J)
  Acted for Club in challenge to Corporation’s refusal of permission to permit winter swimming in Hampstead Heath ponds by members of self-regulated club.  Case involved liberty to take part in risky activities, and obligation of public bodies to prevent consenting adults from taking part.

Public Procurement

Javan regularly advises on a wide range of public procurement issues, and has appeared in a number of the leading recent cases on public procurement, including the first public procurement case to reach the Supreme Court (decision in February 2011). 

Current and recent work

• R (Risk Management Partners Ltd) v London Borough of Brent [2008] BLGR 331; [2008] Eu LR 660 (Admin Ct); [2009] EWCA Civ 490;  [2011] UKSC 7 (Supreme Court)
  Acted for insurance brokers in challenge to decision of local authorities to form a mutual insurer and award insurance contracts to it without public procurement process (and, in conjoined public law challenge, issues of local authority vires).  First English case on limits of the ECJ’s Teckel exemption, addressing extent to which public authorities are obliged to follow procurement rules in awarding contracts to companies which are "equivalent" to in-house bodies; also addresses ambit of local authority "wellbeing" power and incidental power to act.
• R (Law Society) v Legal Services Commission [2008] QB 737 (CA); [2007] Eu LR 94 (Admin Ct)
  Acted for Law Society in successful procurement claim and judicial review of LSC’s introduction of the new Unified Contract for civil legal aid.  Court held that LSC had breached the Procurement Regulations and the European principle of transparency in introducing new Contract containing wide power of unilateral amendment, and in requiring solicitors in the UK to contract on those terms only.
• R (Gamesa UK) v National Assembly of Wales and Forestry Commission [2006] EWHC 2167 (Administrative Court)
  Acted for wind farm manufacturer in challenge to tendering process, concerning special requirements for siting wind farms on Forestry Commission land.  Case raised new issues as to when arrangements relating to a tendering process involve an issue of public law amenable to judicial review.

Privy Council

Javan frequently appears in the Privy Council in a wide range of public law and commercial matters, from a number of jurisdictions, particularly the Caribbean.  He is instructed both in cases where he has appeared in, or advised in relation to, the local courts, and for the first time in the Privy Council.

Current and recent work

• R (Hoffmann) v Commissioner for the Turks and Caicos Commission of Inquiry 2008-9 (forthcoming, Privy Council)
  Challenge to vires and procedural fairness of Turks and Caicos Commission of Inquiry relating to possible political corruption in the TCI.  Appeared in Supreme Court and Court of Appeal in the TCI; currently on appeal to the Privy Council.
• Sans Souci Ltd v VRL Services Ltd (forthcoming, Privy Council, February 2012)
  Appeal from Court of Appeal of Jamaica in relation to dispute concerning unlawful termination of hotel management agreement and arbitrators’ award.
• National Transport Co-operative Society Ltd v Attorney General of Jamaica [2009] UKPC 48 (Privy Council, 26 November 2009)
  Acted for Jamaican Government in appeal from arbitration proceedings involving franchise agreements for bus service provision.  Privy Council decision involves significant treatment of Allerdale/Waltham Forest cases on unenforceable agreements. 

Earlier well known cases

• Suisse Security Bank and Trust Ltd v Governor of the Central Bank of the Bahamas [2006] 1 WLR 1623 (challenge to withdrawal of banking licence by Bahamian regulator).
• Fishermen and Friends of the Sea v Environmental Management Agency, Trinidad & Tobago [2006] Env LR 15 (environmental impact assessment of gas pipeline).
• 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).
• Marpin v Minister for Telecommunications, Dominica [2001] 1 WLR 1123 (compatibility of telecommunications exclusivity with constitutional freedom of expression guarantee).
• 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).
• Javan 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).

Javan regularly acts in telecommunications disputes, in public law regulatory challenges and in the Competition Appeals Tribunal as well as in commercial disputes.

• British Telecommunications v Ofcom [2011] EWCA Civ 245; [2011] 4 All ER 372
  Acted for Ofcom on appeal to Court of Appeal from Competition Appeal Tribunal’s decision as to its jurisdiction in hearing appeals from Ofcom’s dispute resolution function and power to admit fresh evidence.
• British Telecommunications v Ofcom; Everything Everywhere v Ofcom (“080 and 0845/0870 disputes) [2011] CAT 24 (Competition Appeal Tribunal, 1 August 2011; currently under appeal to CA)
  Acting as lead Counsel for Ofcom in series of linked appeals in CAT concerning charges for non-geographic number ranges.  Cases raise, inter alia, economic issues as to effect of BT’s wholesale charges calibrated by reference to mobile operators’ retail prices. 
• H3G v Vodafone Ltd and others [2008] UKCLR 83, Commercial Ct
  Acted for Vodafone, resisting application for pre-action disclosure in substantial threatened Competition Act claim by H3G against the other mobile phone companies for collusion and abuse of dominant position in relation to number portability.  Court held that jurisdictional criteria for pre-action disclosure not fulfilled.
• Digicel Ltd v Cable and Wireless (West Indies) Limited and Telecommunications Regulatory Commission (2007, Eastern Caribbean Supreme Court, BVI)
  Represented Cable and Wireless in judicial review regulatory proceedings in BVI, involving a challenge to the grant of new telecommunications licences.

Earlier well known cases

• R (Vodafone and others) v Competition Commission and Oftel [2003] Eu. L.R. 769; [2003] ACD 72 (challenge to Competition Commission report recommending reduction of mobile call termination charges)
• Energis Plc v Oftel, 2002 (statutory challenge to termination charges for NTS services)
• R v Secretary of State for Trade and Industry ex p. Orange [2001] CMLR 36 (lawfulness of insertion of Significant Market Power conditions into mobile  licences)
• 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.

Other Posts and Publications:

Javan 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 (Butterworths, 3rd ed, 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; 2nd 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 and human rights topics.  He has advised and written extensively on the effect of the Human Rights Act, in fields as diverse as financial services, regulation of utilities (including advice on the Utilities Act 2000 in relation to competition matters); anti-terrorism legislation; and religious freedom.

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; 2nd ed, 2008), and co-author of a chapter on Financial Services Investigations in the OUP Fraud Encyclopaedia (2008).

Other Information:

VAT registration number:  627506145