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 a recommended silk by both leading independent legal directories.

Chambers UK 2014

Tom is ranked in seven different practice areas and he is recognised as one of the ‘stars at the bar.’

  • Administrative & Public law – “He is very bright and very user-friendly. He has skill and experience in most areas of public law.” … “A very ebullient character, he's a star of the future, if only because he is so enormously clever."
  • Civil Liberties – “He is very bright and he knows a huge amount about EU law.”
  • Commercial Dispute Resolution – “Super intelligent, responsive and commercial.”
  • Competition – “I turn to him when I need creativity; he has ideas that nobody else does and they work. He takes a different look at conventional issues and comes at them commercially.”
  • Environment – “He is good on strategy. He knows how these cases are fought and won, and that is why we use him.”
  • European Law – “He has the ability to see things and put arguments together in a creative way.  A very forward-thinking barrister.”
  • Media & Entertainment – “superb” … “He's practical and good on the EU aspects of advertising regulatory issues.”

Legal 500 2013

Tom is recognised in EU & Competition (“exceptionally clever”), and Media, Entertainment & Sport.  

Chambers Global 2013

  • Tom is ranked in Dispute Resolution.

Professional Experience

Tom de la Mare QC has been practising at the Bar since 1996, after completion of his pupillage at Blackstone Chambers. For 9 months of 1996/1997 Tom worked in the Legal Service of the European Commission (in the state aid team) and then in cabinet of Advocate-General Jacobs, practical experience that has been put to good use in his EU practice. Throughout his career Tom has worked both as counsel with sole responsibility for a particular matter and as part of a larger team. Tom has presented his cases on his own and/or led cases in the ECJ, the ECHR, the House of Lords, 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; he also acted as a Special Advocate in a significant number of national security cases. Tom was appointed as the Special Adviser to the Constitutional Affairs Select Committee when it reviewed the use of Special Advocates.

Clients

Tom’s recent clients include:

  • Binyam Mohammed, AF and others (as a Special Advocate).
  • The ABPI, PMCOPA, CPA, CHRE, MHRA, DoH, PCTs, Pfizer, Eisai, Medtronic, BMS, Goldshield, Novartis, CST, Pharma, BioPlus, Aventis Waymade, Remedy UK, Perrigo, Intermune, Gilead, Chemistree and TEVA in the pharmaceutical/medical field.
  • ASA, BCAP, OFT, DBIS, CAA in the field of consumer protection.
  • TfL, Arriva, National Express, CAA, the Air Cargo claimants in the transport field.
  • Ofcom, Ofwat and Ofgem, O2, Vodafone, 118 118, Virgin Media MoD for telecoms and other utilities regulatory advice.
  • Toshiba Corporation, Saab, Volvo, Jaguar, Travis Perkins, Apollo, Aventis, Interserve and others in the field of competition law/damages claims.
  • JUSTICE and Liberty for pro bono human rights interventions.
  • 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), the EU Charter.

Current and recent work

Human Rights:

  • 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. 
  • 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 was until very recently 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.  The Government has recently confirmed it is not proceeding with such legislation at present.

EU Public Law:

  • Intermune v EMA, ongoing, before the General Court
    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 is running in parallel with similar challenges by AbbVie.
  • R (Blue Bio) v MHRA, ongoing in the Administrative Court
    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 
    Tom is representing 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. 
  • 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.
  • 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.
  • Tolley v Secretary of State for Work & Pensions (CA, pending)
    Tom is acting for the Secretary of State in the forthcoming appeal from the Upper Tribunal in a case that raises fundamental issues about who is an “employed person” and when for the purposes of EU social security law.

Public Law:

  • 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 (2011/2 ongoing) 
    Tom has recently submitted written and oral argument for 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, in the Ensus litigation.

Other cases

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

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

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.

Current and recent work

Follow on Claims

  • WH Newson v IMI and others [2013] Bus LR 599
    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 Roth J on the characterisation of a cartel as an unlawful means conspiracy, which has led to an appeal currently before the Court of Appeal
  • 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 recently been instructed by the Claimants in the Air Cargo litigation and has been involved in the recent repleading of the 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:

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

Other Competition law

  • Interserve litigation
    Tom is acting for Interserve (with Andrew Scott) in claims brought by Interserve and others affected by the OFT’s Construction Cartel Decision seeking 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 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 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
  • The Consulting Association
    Tom has been instructed in relation to the DPA and unlawful means conspiracy claims potentially arising out of the alleged black-listing operated by the Consulting Association.
  • Wimbledon Village Surgery v Sutton & Merton PCT
    Tom is acting for the NHS Defendants (leading Tom Cleaver) in his 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.

Media and Entertainment

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.

Current and recent work

Sport

  • FIFA/UEFA v Commission – free to air broadcast of “the Crown Jewels” (September 2012 ongoing)
    Tom acts 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 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.
  • 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” [2013] ECR – nyr, CJEU, 18 July 2013
    Tom acted for the UK 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.
  • 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.
  • Super Injunctions (2012)
    Tom advised in relation to the potential availability of super-injunctive and Norwich Pharmacal relief in connection with a series of internal leaks. 
  • ASA/BCAP
    Tom regularly advises the ASA, BCAP and other self-regulatory bodies, as well as private parties such as Sainsbury’s and SodaStream about advertising regulation across a variety of media, in particular comparative and misleading advertising.
  • Consumer Litigation in the Advertising Sector
    Tom has advised the OFT and private parties in relation to a number of issues arising in relation to potential rogue traders and misleading advertising.  Tom has considerable experience in enforcement proceedings under Part 8 of the Enterprise Act 2002.   He also acted for the OFT in its successful initiative against price partitioning in price 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 & 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)

Telecommunications

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.

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 is acting for 118 118 in relation to the legal issues and appeals arising from Ofcom’s review of Non-Geographic Numbers.
  • 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. 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.

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

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Super intelligent, responsive and commercial. 

Chambers UK 2014

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A very forward-thinking barrister. 

Chambers UK 2014