Thomas de la Mare QC

Called to Bar:
1995
Appointed to silk:
2012
Practice areas:
Degrees:
BA (Oxon), LLM (EUI)
Languages:
French (working knowledge)
Italian (some knowledge)

Tom is recommended by both leading independent legal directories.

Chambers UK 2014

  • Administrative & Public law – “He brings great verve to a case. He is very bright and is fantastic at seeing a clear strategic way forward in complex matters.” “He's a good thinker, is very approachable and rolls up his sleeves when working on a task.”
  • Civil Liberties – “He brings a zest and enthusiasm to the case that one knows is founded on a very secure and in-depth knowledge of the applicable law.” “He is very bright, writes well and is a good lateral thinker.”
  • Commercial Dispute Resolution – “He has an amazingly flexible mind, and is very good at producing creative solutions.” “A thoroughly nice guy with a real presence about him. You can just tell when you speak to him that his mind is sparkling.”
  • Competition – “Very engaging and easy to work with, he's full of flair and new ideas.” “He knows the law better than anyone I know.”
  • Environment – “He is smooth and unruffled when in court. A very impressive advocate.” 
  • European Law – “He is a very entertaining and incisive advocate.” “He is a very forceful advocate with a nice style to his submissions. He's absolutely great.”
  • Media & Entertainment – “Feisty and a good advocate.” “He can cut through all the chaff and get through to the real nub of the case very, very quickly.”

Legal 500 2014

  • Administrative & Public Law - “Resourceful; able to think outside the box.”
  • EU & Competition - “Exceptionally clever.”
  • Media, Entertainment & Sport - “Recommended for record company and recording agreement disputes”.

Chambers Global 2013

  • Tom is ranked in Dispute Resolution.

Professional Experience

Throughout his career Tom has worked both as counsel with sole responsibility for a particular matter and as part of a larger barrister and counsel team in a wide range of areas. Tom has presented his cases on his own and/or led cases in the ECJ/CJEU/General Court, the ECtHR, the House of Lords/Supreme Court, Court of Appeal and most divisions of the High Court.

Tom was on the Attorney-General’s ‘A’ Panel of Counsel until he took silk in 2012 (and before that the B and C Panels); he also acted as a Special Advocate in a significant number of national security cases, starting with the Belmarsh case and culminating in the Binyam Mohammed litigation. Tom was appointed as the Special Adviser to the Constitutional Affairs Select Committee when it reviewed the use of Special Advocates.

After completing pupillage in Blackstone Chambers in 1996 Tom won the Bristow Scholarship which enabled him to work for c.9months in the EU institutions, working both in the Commission Legal Service and in the Cabinet of AG Jacobs.

Clients

  • Tom’s recent clients include:
    The ABPI, PMCOPA, CPA, CHRE, MHRA, DoH, PCTs, Pfizer, Eisai, Medtronic, BMS, Goldshield, Novartis, CST, Pharma, Blue Bio, Aventis, Waymade, Remedy UK, Perrigo, Intermune, Gilead, Chemistree and TEVA in the pharmaceutical/medical field.
  • Sainsburys, ASA, BCAP, OFT, DBIS, CAA in the field of consumer protection.
  • TfL, Arriva, National Express, CAA, the Air Cargo claimants in the transport sector.
  • Ofcom, Ofwat and Ofgem, O2, Vodafone, 118 118, Virgin Media, MoD, Western Power Distribution and Utilita for telecoms and other utilities regulatory advice.
  • Toshiba Corporation, Saab, Volvo, Jaguar, Travis Perkins, Apollo, Aventis, Interserve, Travis Perkins, the Air Cargo Claimants, Chemistree Homecare and others in the field of competition law/damages claims.
  • JUSTICE, Liberty, the criminal bar Claimants in Lumsdon for pro bono human rights cases and interventions.
  • Binyam Mohammed, AF and others as a Special Advocate in national security cases.
  • HMRC, BAT and NACMO in the field of tobacco regulation.
  • Recolight, Biffa, Ensus, and a large group of water companies in the environmental field.

Public Law and Human Rights

Public Law, Human Rights, EU and Environment

There is very considerable cross-over between Tom’s public law, human rights and EU and environmental expertise.  Clients seek Tom out, in particular, for his ability to provide comprehensive expert advice straddling these fields.

Tom has considerable expertise in various areas of professional regulation and professional discipline, particularly where harmonized by EU law such as: pharmaceuticals, pesticides and GMOs; consumer protection and fair trading; broadcasting and advertising (see Media section below for further detail).

Tom’s civil liberties practice has a wide scope: terrorism, free speech, privacy, property and fair hearings have featured particularly prominently in Tom’s recent work for a diverse range of individual, corporate and public clients.

Tom’s EU public law practice is extremely broad (see further below for the commercial aspects of Tom’s EU practice).  He regularly appears for and against the UK in the CJEU/GC and in cases raising EU law points in domestic tribunals.  The public law dimension to Tom’s EU practice embraces subjects as diverse as customs and duties control, social security co-ordination, discrimination, citizenship, free movement (goods, persons, services), immigration, the EU Charter.

Current and recent work

Human Rights:

  • Lumsdon v Legal Services Board [2014] EWCA Civ 1276
    Tom represented the Claimants in a case raising a range of fair trial and fair hearing issues under the common law and the ECHR focusing on issues such as the right to independence of advocates, judicial independence and fair hearings.
  • R (UKAFPO) v SSEFRA [2013] EWHC 1959 (Admin)
    Tom represented UKAFPO (with James Segan) in its A1P1 challenge to the Secretary of State’s decision to take away Fish Quota Allocations.  The case is set to be a leading authority on A1P1 and licensing regimes.
  • Phillips v News Group Newspapers [2012] 2 WLR 848
    Tom appeared in the Court of Appeal to defend the Secretary of State for the Home Department from a declaration of incompatibility in the part of the phone hacking litigation concerned with privilege against self-incrimination.
  • Younis Rahmatullah v Secretary of State [2012] UKSC 48
    Tom appeared (with Fraser Campbell) for JUSTICE in the Supreme Court to support the issue of the writ of habeas corpus in what is sure to become the seminal modern case on habeas and international relations.

EU Public Law:

  • Intermune v EMA, ongoing, before the General Court, including Case T-73/13 and C-390/13 P(R)
    Tom is acting for Intermune (with Fraser Campbell) in what is set to be the leading case on the application of the EU’s freedom of information regulation to pharmaceutical data package information.  The case raises a large number of data protection issues as well as key issues on confidential information and fundamental rights under the CFREU and TRIPS.  The case has already prompted an appeal to the CJEU on interim measures; and interventions from c.8 parties.  It was running in parallel with similar challenges by AbbVie (since settled).
  • R (Sainsburys) v Independent Reviewer of the ASA ongoing
    Tom acts (with Iain Steele) for Sainsburys in its challenge to the refusal by the ASA and its Independent Reviewer to take action in relation to a Tesco price comparison campaign that in part compares prices of non-Fairtrade to Fairtrade goods
  • R (Blue Bio) v MHRA [2014] EWHC 1679 (Admin)
    Tom is appearing with Tristan Jones for the Claimant in a case that is set to be the leading domestic authority on the definition of a “medicinal product” and the duties of the MHRA to apply the so-called functional test in a consistent fashion to like products.
  • FIFA/UEFA v Commission Case C-204/11 P et al [2014] 1 CMLR 20
    Tom successfully represented the UK in these three joined appeals brought by FIFA and UEFA that questioned the legality of the UK’s broadcasting “Crown Jewels” so far as they contained the entirety of the World Cup and EURO tournaments as events that must be broadcast of free to air television.
  • Tolley v Secretary of State for Work & Pensions (Supreme Court, pending)
    Tom is acting for the Secretary of State in the forthcoming appeal in the Supreme Court in a case that raises fundamental issues about who is an “employed person” and when for the purposes of EU social security law.
  • Ahmed (Amos: Zambrano) [2014] EWCA Civ 995
    Tom acts for the appellant in a test case about retained rights of residence for third country nationals.  The appellant, who is Pakistani, has German national children raised in the UK.  They moved to the UK to live with their worker father (a German national) but his violence ended the marriage and he left the country.  Part of the case relating to the construction of the Citizenship Directive has been referred to the CJEU but the case raises wider and profound issues about the scope of the EU Charter.
  • United Kingdom v Council Case C-431/11 EU:C:2013:589
    Tom acted for the UK in its challenge to amendments to the EEA Agreement in the field of social security.

Public Law & Damages Against Public Bodies :

  • Kamoka & Others v Security Services ongoing
    Tom is leading a team of 5 counsel in a series of related claims of false imprisonment and misfeasance arising from the alleged unlawful activities of the UK Security Services in conjunction with the Qaddafi security services.  The claims are brought by 12 Libyans formerly subjected to detention pending deportation, control orders or asset freezing.
  • R (Raabe) v SS for the Home Office [2013] 1736 (Admin)
    Tom appeared for the Secretary of State and successfully resisted a challenge to the legality of the decision to revoke R’s appointment to the ACMD on the basis of non-disclosure of a polemical article about the ‘dangers’ of homosexuality.  The case raised issues under Article 9 ECHR as well as a number of purely domestic points.

Environmental Law

  • Fish Legal Case C-279/12 [2014] QB 521 
    Tom represented large number of intervener water only and water and sewerage companies in the CJEU in the lead test case on what constitutes a “public authority” for the purposes of the Environmental Information Regulations with implications for a wide range of regulated utilities.  The case has been returned to the Upper Tribunal for application of the ruling to the facts, in a case that has been joined with similar claims against the Duchy of Cornwall and the Royal Household.
  • EWRG v Recolight (2012, settled)
    Tom was instructed for the producer compliance scheme Recolight (as well as its four major members) to defend it against arguments that it operated anti-competitively.  The case raised fundamental issues about the relationship between Article 101.3 TFEU (justification for restrictive agreements) and the delivery of environmental benefits.
  • Barr v Biffa [2012] 1B 455
    Tom was the junior counsel (led by Ian Croxford QC) in the long-running GLO litigation relating to the Westmill landfill in Ware.  The case raised fundamental issues about the nature of an odour nuisance claim and the relevance of compliance with statutory regulation to “reasonable user”.
  • On the back of Barr Tom is now advising another Defendant facing very substantial odour nuisance group litigation, in the Ensus litigation.

Other cases

Other Reported Cases in Public Law, Human Rights & EU cases (last 5 years only)  

  • Case C-503/09 Stewart v Secretary of State for Work & Pensions [2012] 1 CMLR 13
  • Case C-446/09 Philips [2012] Bus LR 1850
  • Case C-62/09 R(ABPI) v MHRA [2011] All ER (EC) 102
  • Case C-245/09 Omalet EU:C:2010:808
  • Case C-323/08 Rodríguez Mayor [2010] All ER (EC) 489
  • Case C-243/08 Pannon GSM v Sustikné Györfi [2010] All ER (EC) 480
  • Case C-137/08 VB Penzugyi Lizing EU:C:2010:659
  • SS(Libya) v Secretary of State for the Home Department [2011] EWCA Civ 1547
  • R (Sinclair Collis) v Secretary of State for Health [2012] QB 394
  • R (Broom) v Secretary of State for Justice [2012] 4 Costs LO 504
  • VB Penzugyi Lizing [2011] 2 CMLR 1
  • R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs Court of Appeal (Civil Division)[2010] EWCA Civ 65; [2010] 3 WLR 554
  • Vodafone v British Telecommunications [2010] EWCA Civ 391; 3 All ER 1028
  • R (Remedy UK) v GMC [2010] EWHC 1245 (Admin); [2010] Med. L.R. 330
  • R (Bristol-Myers Squibb Pharmaceuticals Ltd) v NICE [2010] 1 CMLR 31
  • Secretary of State for the Home Department v AE, AF, AM & AN  [2010] 1 AC 269
  • R (SRM) v Treasury Commissioner [2009] UKHRR 1219
  • R v GG Plc [2009] 1 WLR 458

Other relevant experience

Publications:

  • Tom co-wrote three chapters in Lester & Pannick (ed), Human Rights Law & Practice (2nd ed).
  • Tom wrote the chapter, Remedies, in B. Lang (ed), Administrative Court: Practice & Procedure.
  • Tom wrote the chapter on Preliminary Rulings in Craig & de Burca, EU Law in Social and Political Context and wrote the chapter in the 2nd edition with Catherine Donnelly.
  • Tom is a regular contributor to publications such as Judicial Review, on a wide range of public law topics.
  • Tom is a regular speaker at seminars organised by bodies like Liberty, Justice, ALBA and BEG.
  • Tom is regularly involved in Human Rights training and lecturing for a wide variety of organisations, including JUSTICE and the GLS.

Commercial

Commercial, Competition, Fraud

Given Tom’s strength in EU and competition law, Tom’s is regularly in demand in commercial cases raising issues of conflicts of laws and competition law.  Tom has regularly acted in commercial issues in the CJEU, Court of Appeal as well as the Commercial Court and Chancery Division.  Beyond these areas Tom’s general commercial litigation practice spans a wide range of areas including: civil fraud, particularly in a commercial employment context; confidential information and soft IP (trademarks, copyright); restraint of trade and restrictive covenants; conflicts of law.

A good deal of Tom’s commercial practice has an EU or regulatory dimension.  Tom has a competition law practice that spans the full range of EU and domestic competition law matters, with particular focus on cartels, and private enforcement (“stand alone” and “follow on” claims) as well as state aid.  Such cartels work provides a natural synergy with Tom’s civil fraud work and experience.  Tom also provides competition advice and representation to regulators and regulated parties.  Tom won the Chambers & Partners Bar 2007 awards for “EC/Competition Junior of the year” (for which he was also short-listed in 2006).

Closely related is Tom’s work in EU state liability claims.  Such cases require a mix of public law expertise (is a breach ‘manifest and grave’?) and commercial litigation know-how (causation, quantum, market modelling) and have strong similarities with competition law “follow on” claims.

Tom’s damages work in multi-jurisdictional cartels frequently raises conflicts issues (jurisdiction, applicable law).  Tom’s EU expertise also provides the basis for conflicts instructions domestically and in the CJEU, both for the UK and against it.

Current and recent work

Follow on Claims

  • WH Newson v IMI and others [2014] Bus LR 156
    Tom (leading Tristan Jones) is leading the claims brought against two of three main copper cartels (copper tubes, copper fittings) for companies in the Travis Perkins Group.  The case has already given rise to an important ruling from the Court of Appeal on the characterisation of a cartel as an unlawful means conspiracy.
  • Nokia Corp v AU Optronics [2012] EWCA Civ 490
    Tom appeared for Toshiba in this first round of the LCD/CRT cartel litigation.  Tom has since been instructed by Toshiba in the claims brought against it by Sony.
  • The Air Cargo Litigation
    Tom has been appearing for the Claimants in the Air Cargo litigation and has been involved in the recent repleading of the claims.
  • Car Glass and Industrial Bags litigation
    Tom acted for a number of car company claimants in a series of damages claims arising out of the car glass cartels; and for a group of complainants affected by the industrial bags cartel.
  • The Vitamins/Methionine Litigation
    Tom has led the team for Aventis SA in the various rounds (five so far) of follow on damages claims brought against Aventis SA arising from its participation in the Vitamins cartel.  From the initial Provimi v Aventis litigation in 2003 in the Commercial Court there have been further rounds of litigation in the CAT and Chancery Division, including the Devenish litigation (the leading authority on causes of action and remedies) and the BCL litigation (the leading case on CAT time limits), the litigation culminated with the settlement of the Methionine litigation in the beginning of 2012.

Other current follow on claims

Tom has briefs in many of the current and very sizable follow on damages claims currently working their way through the Courts, most of which are currently at very early stages.  He acts for both defendants and claimants.   Current cases include:

  • Car glass claims (3 separate actions – Jaguar, Saab and Volvo)
  • Industrial Bags (recently settled)
  • Paraffin Wax (for Total)

Other Competition law

  • Chemistree Homecare Ltd v AbbVie Ltd [2014] UKCLR 1
    Tom was brought in (with James Segan) to act for Chemistree in the Court of Appeal in its attempt to get injunctive relief against AbbVie to continue the supply of a particular drug on abuse of dominance grounds.
  • Lindum Construction v Office of Fair Trading [2014] Bus LR 681
    Tom acted for Lindum and Interserve (with Andrew Scott) in claims brought by parties affected by the OFT’s Construction Cartel Decision that sought restitution of fines unlawfully paid.
  • Recolight litigation
    Tom acted in the recent sizeable Recolight litigation which raised significant issues about, amongst other things, the interface between A.101(3) justification and environmental regulation/benefits.  Tom acted for Recolight the Producers Compliance Scheme that seeks to maximise the recycling of modern energy efficient (but toxic) lightbulbs.
  • Abuse of dominance claim
    Tom recently acted for a major supplier of medical equipment in a dispute raising substantial questions of abuse of dominance (settled confidentially).
  • Competition advice
    Tom has in the last 2 years provided specialist competition advice in areas as diverse as drug and medical procurement (for NHS entities), motor vehicle distribution, the provision of media services, tobacco purchasing, dominance and market definition in online and merchandising markets and the regulated transport sector.

EU State Liability Claims

  • Tom has historically acted for private parties (e.g. in the Park Lane litigation), the state (e.g. the MHRA in the Synthon litigiation) and other public bodies/regulators (HMRC, DWP, the GMC et al) in a significant number of other state liability claims.

Conflict of Laws

  • AMT Futures v Marzillier etc [2014] EWHC 1085 (Comm)
    Tom is acting (with Andrew Scott) for the execution only broker AMT in its novel claim for procuring breach of exclusive jurisdiction clauses against a German law firm alleged to have canvassed claims by former clients using confidential information.  The case is the leading case on the approach to Art 5(3) jurisdiction for the tort of procuring breach, and is on appeal to the Court of Appeal.
  • Follow on claims
    Complex jurisdictional and applicable law advice is a key part of Tom’s multi-jurisdictional follow on damages practice, in which it is an invariable issue for consideration by Claimants and Defendants alike.
  • SSL v TTK [2012] 1 WLR 1842
    Tom acted for SSL/Durex in its attempts to obtain English jurisdiction for contractual and tort claims arising out of alleged economic duress on the part of a joint venture partner in India.  The case raised fundamental points about service upon foreign companies in the jurisdiction and enforcement of injunctions abroad.

Fraud and other Commercial

  • The Weavering litigation (to 2012)
    Tom acted for the liquidators of Weavering Capital UK in its successful attempts to recover funds from its former directors.  The claims arose in connection with the collapse of the $500 million Weavering Hedge Fund and raised claims in deceit/misrepresentation, breach of fiduciary duty, negligence and breach of statutory duty.
  • Octopus Investments v Hunt & Others
    Tom was instructed (with Hanif Mussa) in the EIS fraud claims brought by Octopus Investments against its former advisers.
  • Wimbledon Village Surgery v Sutton & Merton PCT
    Tom acted for the NHS Defendants (leading Tom Cleaver) in this high value test case litigation about the construction of superannuation provisions of a standard form PMS Agreement, as used by a significant number of PCTs/GP providers.

Other cases

Other Recent Reported Commercial, Competition and Fraud Cases (past 5 years only)

  • Nokia v AU Optronics [2012] UKCLR 245
  • Barr v Biffa Waste Services Ltd [2012] 3 WLR 795
  • GF Tomlinson v OFT [2011] CAT 7
  • R v GG Plc [2008] UKHL 17

Other relevant experience

Publications:

  • Tom co-wrote (with Robert Howe QC) the chapter on Confidential Information in Goulding (ed), Employee Competition: Covenants, Confidentiality and Garden Leave.
  • Tom regularly lectures on competition law, conflicts, fraud and other commercial topics and has published a number of articles on state liability claims.

Sport

Current and recent work

  • FIFA/UEFA v Commission Case C-204/11 P et al [2014] 1 CMLR 20
    Tom successfully represented the UK in these three joined appeals brought by FIFA and UEFA that questioned the legality of the UK’s broadcasting “Crown Jewels” so far as they contained the entirety of the World Cup and EURO tournaments as events that must be broadcast of free to air television.  Tom also advised the DCMS on the related consultation on the review of the current UK list of protected events.
  • London Welsh v RFU (July 2012 and May 2013)Tom acted for London Welsh (with Tom Richards) in its successful challenge to the legality of the RFU’s rule requiring clubs to have “primacy of tenure” in order to be eligible for promotion.  Such rule was found to be an anti-competitive restraint being unnecessary/disproportionate for the aims of settling a stable fixture list to maximise broadcast revenue.  London Welsh were promoted to the Rugby Premiership in consequence.   Tom also acted for London Welsh in its appeal against sanction for having fielded an ineligible player in 11 matches.
  • R (Tottenham Hotspur FC) v Newham BC and others – “Olympic Stadium JRs” Tom appeared (with John Howell QC and Paul Luckhurst) for Newham BC in its defence of the various judicial reviews brought on EU state aid grounds arising out of the proposed West Ham/Newham joint venture and its selection as preferred bidder for the Olympic Stadium.  The case raised profound issues about public funding of sport, public benefits, infrastructure and the state aid rules.

Other cases

  • FIFA/UEFA – see above 

Other relevant experience

Tom has written (with Ravi Mehta) the Chapter in Lewis & Taylor on Sport on EU free movement rights.

Media and Entertainment

Media, Entertainment, Broadcasting

Ever since pupillage with Ian Mill QC Tom has consistently pursued a practice in Media & Entertainment, Sports and Broadcasting litigation, embracing matters such as record company and recording agreement disputes, restraint of trade, film finance, collecting society disputes, broadcasting disputes and advertising regulation.  Tom undertakes a wide range of related IP litigation, whether in copyright, trademarks, passing off and the like.

With the increasing intrusion of EU harmonization into IP and EU regulation (notably consumer regulation) and EU competition law into media and broadcasting, as well as sports, Tom’s expertise in these areas of cross-over has been increasingly called on.  Tom regularly provides competition and EU advice in a media, sports, advertising and broadcasting context.

Tom has a broad media practice embracing film and music industry work, broadcasting regulation and the law of advertising. 

Current and recent work

Tom has a broad media practice embracing film and music industry work, broadcasting regulation and the law of advertising.

  • Coogan & Gray v Mulcaire [2012] 2 WLR 848
    Tom appeared in the Court of Appeal to defend the Secretary of State for the Home Department from a declaration of incompatibility in the part of the phone hacking litigation concerned with privilege against self-incrimination in the context of privacy claims against journalists.
  • Private Copying Exemption
    Tom is acting (with Ian Mill QC) for some of the private parties affected by the Government’s proposals to introduce a private copying exemption pursuant to Article 5(2)(b) of the EU Copyright Directive.
  • Sainsburys’ JR of the ASA – see above
  • ASA/BCAP
    Tom has regularly advised the ASA, BCAP and other self-regulatory bodies, as well as private parties such as Sainsburys, Martin Grant Homes and SodaStream about advertising regulation across a variety of media, in particular comparative and misleading advertising.
  • Freedom of Information litigation
    Tom is involved in two of the leading EU freedom of information cases at present, namely Fish Legal and Intermune, set out above.

Other cases

Other Reported Media, Entertainment & Broadcasting cases (past 5 years only)

  • R(Binyam Mohamed) v SSFCO [2011] QB 218 (redaction of judgments, press reporting)

Telecommunications

Tom has been involved in a number of high profile telecommunications disputes, acting for O2, H3G, Vodafone and Ofcom.  In particular, Tom was heavily involved in the repeated litigation surrounding the future holding and use of spectrum for 4G services.

Current and recent work

  • Spectrum litigation: 4G refarming
    Tom has over a number of years been acting for and advising O2 in relation to the complex legal issues arising about spectrum allocation, refarming, liberalisation and use in 4G services.
  • 118 118
    Tom acted for 118 118 in relation to the legal issues and appeals arising from Ofcom’s review of Non-Geographic Numbers.
  • Advisory work
    Tom has provided advice across a range of issues connected with telecoms regulation, in particular in relation to issues triggered by the Revised European Framework. Recently Tom has been advising MoD (with James Segan) in relation to spectrum divestment issues; and Virgin Media in relation to issues arising under the CRF.

Other cases

  • Telefonica O2 UK Ltd v Ofcom [2010] CAT 25
  • Vodafone v BT [2010] EWCA Civ 391; [2010] Bus LR 1666
  • T-Mobile (UK) Ltd v Ofcom [2009] 1 WLR 1565 

EU and Competition

There is considerable cross-over between Tom’s public law, human rights and EU expertise.  Details of his EU work is given in the Public Law and Human Rights section above.

Tom undertakes competition work and this is outlined in the broader Commercial section above.

Other relevant experience

VAT registration number:  678145894

Photo of Tom de la Mare

A very impressive advocate. 

Chambers UK 2015

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Exceptionally clever. 

Legal 500 2014