Thomas de la Mare QC

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), the EU Charter.

Tom’s recent clients include:

• Binyam Mohammed, AF and others (as a Special Advocate)
• the ABPI, PMCOPA, CPA, CHRE, MHRA, Pfizer, Eisai, Medtronic, BMS, Goldshield, Novartis, CST Pharma, BioPlus, Waymade, Remedy UK (in the pharmaceutical/medical field)
• ASA, BCAP, OFT, DBIS and CAA (in the field of consumer protection)
• TfL, Arriva, National Express (in the transport field)
• Ofcom, Ofwat and Ofgem, O2, Vodafone (for utilities regulatory advice)
• JUSTICE and Liberty (for pro bono human rights interventions)
• BAT and NACMO (tobacco regulation)
• Recolight, Biffa and a large group of water companies (environmental)

Human Rights:

• 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.
• 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.
• SS (Libya) v Secretary of State for the Home Department [2011] EWCA Civ 1547
  Tom appeared for JUSTICE (with Tom Hickman) in a leading case on the compatibility of the use of Special Advocates with EU Charter Rights.
• Tom is engaged (with Naina Patel) in advising a legal tobacco company on the human rights implications of proposals to impose plain packaging requirements on future sales of tobacco, legislation that raises substantial questions under Article 10 and A1P1 ECHR and/or the EU Charter.

EU work:

• 4G Refarming and Spectrum Liberalisation
  Tom advised O2 (with Tom Richards) throughout the recent legal issues relating to the liberalisation of spectrum for 4G uses in a case that raised complex regulatory, public law and competition issues.
• Payment Surcharges
  Tom represented the OFT in all the pre-litigation relating to the OFT’s crack down on airlines applying payment surcharges for standard modes of payment.   The case raised significant questions under the relevant EU consumer Directives and instruments. All the airlines targeted have since agreed in the course of Summer 2012 to refrain from the practice.
• Fish Legal
  Tom is representing a large number of intervener Water Companies in the CJEU reference that is set to be the leading case on what constitutes a “public authority” for the purposes of the Environmental Information Regulations.
• R (Tottenham Hotspur FC) v Newham BC and others
  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. 
  Case C-446/09 Philips Electronics [2011] ECR I-nyr (11 December 2011)
  Tom represented HMRC from start to finish in this key test case on the scope of EU counterfeiting legislation and its relationship to EU trade marks legislation.
• Case C-503/99 Stewart v Secretary of State for Work & Pensions [2012] CMLR 13 
  The case is the latest in a line of social security cases on DLA and related benefits in which Tom has appeared for the DWP.  The cases raise significant issues about EU social security coordination, citizenship and discrimination.
• FIFA/UEFA v Commission 
  Tom represented the UK in these three joined appeals, including most recently at the September 2012 hearings, that questioned the legality of the UK’s “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.

Public Law:

• Dr Hans Christian Raabe v Secretary of State for the Home Office
  Tom is representing the Secretary of State in a challenge to be heard in December 2012 to the decision to revoke the appointment of a GP to the ACMD on grounds of non-disclosure.  The case is likely to raise issues under Article 9 ECHR as well as issues of fairness.
• R (Tottenham Hotspur FC) v Newham BC and others
  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.

Environmental Law

• Fish Legal (2011/2 ongoing) 
  Tom is representing a large number of intervener Water Companies in the CJEU reference from the Upper Tier Tribuanl that is set to be the leading case on what constitutes a “public authority” for the purposes of the Environmental Information Regulations.
• 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] 3 All E.R. 380
  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.

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

• R (Sinclair Collis) v Secretary of State for Health [2012] QB 394
• 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
• Case C-243/08 Pannon GSM Zrt v Sustikené Györfi [2010] All ER EC 480
• R (Bristol-Myers Squibb Pharmaceuticals Ltd) v NICE [2010] 1 CMLR 31
• Case C-62/09 R (ABPI) v MHRA [2011] All ER (EC) 102
• Case C-323/08 Rodríguez Mayor [2010] All ER (EC) 489
• 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
• T Mobile (UK) Ltd v Office of Communications Court of Appeal [2008] EWCA Civ 1373; [2009] 1 WLR 1565; [2009] Bus LR 794
• R (Corner House Research) v Director of Serious Fraud Office [2008] 3 WLR 568
• MT (Algeria) v Secretary of State for the Home Department [2008] 1 All ER 786
• Eisai Ltd v National Institute for Health and Clinical Excellence (2008) 101 BMLR 26 
• R (Paul) v Assistant Deputy Coroner of Inner West London [2008] 1 All ER 981
• Inner West London Assistant Deputy Coroner v Channel 4 Television Corpn (Practice Note) [2008] 1 WLR 945

Publications:

• Tom co-wrote three chapters in Lester & Pannick (ed), Human Rights Law & Practice (2^nd 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 is rewriting in for 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.

Tom’s general commercial litigation practice spans a wide range of areas: civil fraud, particularly in a commercial employment context; confidential information and soft IP (trademarks, copyright); restraint of trade and restrictive covenants; conflicts of law.  Given Tom’s strength in IP and EC/competition law practices, and the increasing reach of both into commercial life, Tom’s multi-disciplinary skills are regularly in demand.  Tom has regularly acted in commercial issues in the CJEU, Court of Appeal as well as the Commercial Court and Chancery Division.

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.

Follow on Claims

• 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:

• Air cargo claims
• Car glass claims (3 separate actions – Jaguar, Saab and Volvo)
• Copper Tubes and Copper Fittings in the Travis Perkins litigation
• Industrial Bags
• Paraffin Wax
• CRT/LCD claims in the Nokia litigation

Other Competition law

• 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 year 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 and the regulated transport sector.

EU State Liability Claims

• Synthon litigation
  Tom acted for the MHRA in its defence of the claim brought by Synthon in consequence of a wrongful failure (liability having been established by the ECJ) to grant Synthon a pharmaceutical marketing authorization.  The case settled in 2011.
• Tom has also successfully acted for private parties (e.g. in the Park Lane litigation) and other public bodies/regulators (HMRC, DWP, the GMC et al) in other state liability claims.

Conflict of Laws

• 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

• 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.
• EIS litigation (ongoing)
  Tom acted (with Hanif Mussa) in a fraud case arising out of tax efficient film financing arrangements.

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

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.

Media, Entertainment, Broadcasting & Sport

Ever since pupillage with Ian Mill QC Tom has 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 and broadcasting context.

Sport

• FIFA/UEFA v Commission – free to air broadcast of “the Crown Jewels” (September 2012 ongoing)
  Tom acted for the UK in as the intervener in various appeals brought by FIFA and UEFA against the decisions of the General Court upholding the Commission’s approval of the UK’s notification of listed events mandatorily broadcast on free to air television.  The cases have now been argued before the CJEU and judgment is awaited.  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)
  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.
• 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.
• Tom is writing the Chapter in Lewis & Taylor on Sport and EU free movement rights.

Media

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

• FIFA/UEFA v Commission – free to air broadcast of “the Crown Jewels” (September 2012 ongoing)
  Tom acted for the UK in as the intervener in various appeals brought by FIFA and UEFA against the decisions of the General Court upholding the Commission’s approval of the UK’s notification of listed events mandatorily broadcast on free to air television.  The cases have now been argued before the CJEU and judgment is awaited.  Tom also advised the DCMS on the related consultation on the review of the current UK list of protected events.
• 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.
• Super Injunctions (2012)
  Tom advised in relation to the potential availability of super-injunctive and Norwich Pharmacal relief in connection with an internal leak. 
• ASA/BCAP
  Tom regularly advises the ASA, BCAP and other self-regulatory bodies about advertising regulation across a variety of media, in particular comparative and misleading advertising.
• OFT Consumer Litigation
  Tom has advised the OFT in relation to a number of issues arising in relation to potential rogue traders and misleading advertising.  He also acted for the OFT in its successful initiative against price partitioning in price advertising.

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

• Inner West London Assistant Deputy Coroner v Channel 4 Television Corpn (Practice Note) [2008] 1 WLR 945 (disclosure of unused source material)
• R (Binyam Mohamed) v SSFCO [2011] QB 218 (redaction of judgments, press reporting)

Over the past 3-4 years Tom has been increasingly appearing in high profile telecommunications disputes, acting for O2, H3G, Vodafone and Ofcom.  Recently Tom has been heavily involved in the repeated litigation surrounding the future holding and use of spectrum for 4G services.

• Spectrum litigation: 4G refarming; Telefonica O2 v Ofcom [2010] CAT 25; T-Mobile v Ofcom [2009] 1 W.L.R. 1565  [2009] Bus. L.R. 794
  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.
• Vodafone v BT [2010] EWCA Civ 391; [2010] Bus LR 1666
  Tom acted for Ofcom in the Court of Appeal case that dealt with the ex ante nature of Ofcom’s powers when dealing with mobile call termination rates imposed by Ofcom using its powers to impose conditions to combat the misuse of SMP.
• 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.

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.

VAT registration number:  678145894