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 and was listed as one of The Lawyer’s “Hot 100” for 2016.

Chambers UK 2016

  • Administrative & Public law – “Amazingly talented, Tom is a great lateral thinker who judges respect greatly despite his relative youth.” “He has boundless energy and is very clever and user presentable.”
  • Civil Liberties – “Extremely user-friendly, and his submissions are fantastic.”
  • Commercial Dispute Resolution – “He is a very knowledgeable and creative lawyer. He has a distinctly EU background, but is able to use that knowledge outside the normal ambit.” “He is robust, creative and practical.”
  • Competition – “Cuts through complex competition law issues quickly due to his sharp mind. His easy-going manner is appreciated by clients.”
  • Environment – “He is such an attractive advocate. He is very thoughtful and open with the court. He is just very passionate and throws all of himself into the case.”
  • European Law – “An intensely commercial barrister who has a 'nose' for the correct points to run and those to shelve, taking into account the clients' commercial aims and the nature of the panel in front of him.” “He is first-class, innovative and easy to work with.”
  • Media & Entertainment – “He is a very good, clear-thinking technical lawyer." "He provides a valuable, practical approach to presenting the legal and factual aspects of a case, quickly getting to the heart of the matter.”
  • Telecommunications – “For telecoms competition work, he really is top-drawer.” “A clever chap, and very likeable.”

Legal 500 2015

  • Administrative & Public Law – “A powerful and persuasive advocate.”
  • Civil Liberties – “Clever and deeply passionate.”
  • EU & Competition – “Very hardworking and a pleasure to deal with.”
  • IT & Telecoms – “He brings deep knowledge of data protection to the table.”
  • Media, Entertainment & Sport – “He is extremely bright and gets to the point with the minimum of fuss.”

Chambers Global 2016

  • Tom is ranked in Competition/EU.

Professional Experience

Throughout his career Tom has worked in a wide range of areas. Tom has presented his 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.

On the public law side most of Tom's current work is for claimants. But 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:

  • Pfizer, Eisai, Medtronic, BMS, Goldshield, Novartis, CST, Pharma, Blue Bio, Aventis, Waymade, Remedy UK, Perrigo, Intermune, Gilead, Chemistree and Teva, Nutricia, Diomed and ABPI, PMCOPA, as well as the CPA, CHRE, MHRA, DoH, PCTs, in the pharmaceutical/medical devices/FSMPs field.
  • Sainsburys, C&C, Lebara, Sodastream, ASA, BCAP, OFT, DBIS, CAA in the field of advertising and 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, Peugeot, Travis Perkins, Apollo, Aventis, Interserve, Travis Perkins, the Air Cargo Claimants, Chemistree Homecare, FX Claimants 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, Thames Water 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 a very considerable overlap 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 expertise in a wide range of fields of commercial, technical and professional regulation and discipline, particularly where harmonized by EU law such as: pharmaceuticals, foods and food supplements pesticides and GMOs; financial services, legal services; medical services and qualifications; aviation, broadcasting and advertising (see Media section below for further detail).

Tom’s civil liberties practice has a wide scope: terrorism, torture, unlawful detention, 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:

  • R(Kamoka) v Security Services & Others - ongoing
    Tom is representing a large number of Libyans said to members of or affiliated to the LIFG in connection with their: (a) detention in the UK under immigration detention pending DWA and/or under Control Orders; (b) detention and torture abroad; and (c) subjection to domestic sanctions.  The Claimants contend that UK administrative action was tainted by UK complicity in wrongdoing and its non-disclosure to the Courts; and (in the case of those detained abroad) of UK complicity in torture, arbitrary detention or CIDT.
  • Privacy International v Security Services (IPT) – listed for hearing July 2016
    Tom is representing the Claimants (with Ben Jaffey) in this challenge to the Security Services powers to gather and operate Bulk Personal Datasets and to obtain Bulk Communications Data using obscure powers under the Telecommunications Act rather than RIPA.  The case raises key issues under Article 8 ECHR/7 CFREU.
    R(Lumsdon) v Legal Services Board [2015] UKSC 41; [1015] 3 WLR 121
    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 (to the CA); and EU proportionality (to the SCt).
  • Beghal v DPP [2015] UKSC 49; [2016] AC 88
    Tom represented interveners on this leading case on suspicionless stop and search powers at ports and airports.
  • NA (Pakistan) v Secretary of State for the Home Department [2015] 1 C.M.L.R. 9
    Tom appeared in the Court of Appeal in this case that raises very important issues about rights derived from the Charter of Fundamental Rights of the European Union.  The Charter points have been referred to the CJEU.

EU Public Law:

  • National Iranian Tanker Co v Commission; Golparvar v Commission
    Tom is acting for NITC and Mr Golparvar in the EU General Court in two unrelated cases under the Iranian sanctions regime.
  • R(Blue Bio) v Secretary of State for Health [2014] EWHC 1679 (Admin); [2014] Med. L.R. 233
    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.  The case is currently listed in the Court of Appeal.
  • 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 [2015] UKSC 55; [2016] 1 All E.R. 40
    Tom acted for the Secretary of State throughout the litigation from the Upper Tribunal to 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.
  • NA (Pakistan) v Secretary of State for the Home Department [2015] 1 C.M.L.R. 9
    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.  Quite apart from the Charter issues (above) the case raises key issues under the Citizenship Directive and in relation to Teixeira rights of residence.
  • Tom also has considerable experience in Francovich claims against public bodies, most recently in the Zewdu litigation where Tom obtained sizeable compensation for his client from the Home Office for extreme delays in the recognition of her EU rights of residence that had the effect of preventing her from working. 

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 and in the subsequent contest Upper Tribunal 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. 
  • Bruton v Duchy of Cornwall, Upper Tribunal, pending
    Tom also represented the Duke of Cornwall in the subsequent Upper Tribunal case which will establish whether the Duchy of Cornwall has legal personality and whether it or the Duke of Cornwall is a “public authority” for environmental information purposes.
  • Thanks to the Fish Legal case, and earlier work in waste (Barr v Biffa) etc Tom has recently developed a growing practice in water regulation, principally for water and sewerage undertakers.

Other cases

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

  • Rahmatullah v Secretary of State for Foreign & Commonwealth Affairs [2013] 1 AC 614
  • Barr v Biffa Waste Services [2012] 3 All ER 380
  • Gray v News Group Newspapers Ltd [2012] 2 WLR 848
  • Case C-446/09 Koninklijke Philips Electronics NV [2012] ETMR 13
  • 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
  • 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
  • R (Sainsbury’s Supermarkets Ltd) v Independent Review of the Advertising Standards Authority [2015] ACD 23
  • 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

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 PLP, 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, Conflicts, Fraud

Given Tom’s strength in EU and competition law, he is regularly in demand in commercial cases raising issues of EU commercial issues (financial services, telecoms), 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: conspiracy and economic torts (especially using civilian unfair competition torts with English disclosure); civil fraud, particularly in a commercial employment context; confidential information and soft IP (trademarks, copyright); restraint of trade and restrictive covenants; and conflicts of law. 

Tom has a competition law practice that spans the full range of EU and domestic competition law matters, with particular focus on competition regulatory work (gas and electricity, telecoms, water etc) and private enforcement (“stand alone” and “follow on” claims) as well as state aid.  Cartels work provides a natural synergy with Tom’s civil fraud experience. 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).  Ever since he successfully argued the seminal Grovit case in the CJEU Tom’s EU expertise has provided the basis for conflicts instructions domestically and in the CJEU, both for the UK and against it, a notable recent case in point being the recent AMT Futures litigation arising out of enforcement of exclusive jurisdiction and applicable law clauses which has generated two separate strands of conflicts work, one part in the Supreme Court and one part in the Commercial Court.

Current and recent work

Follow on Claims (last 2 years)

  • National Grid & Scottish Power v ABB & Others
    Tom is acting for a key Part 20 Defendant, the Nexans Group, the damages claims arising out of a power cables cartel.
  • WH Newson v IMI and others [2014] Bus LR 156
    Tom (leading Tristan Jones) conducted the claims brought against two of three main copper cartels (copper tubes, copper fittings) for companies in the Travis Perkins Group.  Before settlement, the case gave rise to an important ruling from the Court of Appeal on the characterisation of a cartel as an unlawful means conspiracy.
  • The Air Cargo Litigation
    Tom appeared for the Claimants in the Air Cargo litigation.
  • Car Glass & Car Bearings
    Tom is acting for Peugeot and Saab (leading Tristan Jones) in two separate actions relating to the automotive car glass and bearings cartels.  The car glass claims brought by Peugeot and Saab are pending before the High Court and the CAT and are likely to raise important issues about limitation in CAT claims under the Foreign Limitation Periods Act.

Other follow on claims

Tom is working on a number of large claims likely to be brought in the course of the next year, including in relation to the FX cartel. Tom has also advised (and written) extensively on the viability of claims under the new collective proceedings facilitated by the Consumer Rights Act 2015, in relation to which he is an acknowledged expert. Tom was a member of the CAT Working Party on collective

Tom has had 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. Past cases include:

  • Historic car glass claims (3 separate actions – Jaguar, Saab and Volvo, claimants)
  • Industrial Bags (claimants)
  • Paraffin Wax for Total (Part 20 Defendant)
  • Vitamins Cartels: Tom acted for Aventis in five separate actions, four as defendants, one as Part 20 Defendant
  • LCD/CRT for Toshiba (Defendant)
  • The generic medicines cartel, acting for Goldshield (Defendant) in both civil and criminal proceedings

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.

EU State Liability Claims

  • Tom has historically acted for private parties (e.g. in the Zewdu litigation), the state (e.g. the MHRA in the Synthon litigation) 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 [2015] QB 699
    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 Supreme Court.  
  • AMT Futures v Mikic  Commercial Court
    A second round of AMT actions against the former retail clients seems set to become the leading domestic case on whether someone engaged in aggressive speculation for short term profit on the futures and options markets can be a “consumer” under Section 4 of the Recast Regulation.
  • Complex jurisdictional and applicable law advice has been a key part of Tom’s multi-jurisdictional follow on damages practice ever since the seminal Provimi v Aventis case (still a leading jurisdiction authority), 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 litigation

  • Lebara v Lyca
    Tom is acting for Lebara (leading Ben Jaffey & James Segan) in a dispute with its close commercial rival Lyca which has been blocking its users from accessing Lebara’s services throughout the EU.  The case raises novel issues about internet neutrality and consumer protection in the telecoms field, as well as difficult issues about EU e-privacy law, economic torts (both types of conspiracy) and foreign law (a variety of civilian unfair competition torts having been pleaded as well).
  • 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 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 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 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 upon. Tom regularly provides competition and EU advice in a media, sports, advertising and broadcasting context.

Current and recent work

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

  • R(BASCA) v Secretary of State for Business, Innovation and Skills [2015] Bus LR 1435; [105] 4 Costs LR 627
    Tom acted (with Ian Mill QC) in the successful challenge to the Regulations brought to introduce a private copying exemption pursuant to Article 5(2)(b) of the EU Copyright Directive.
  • Privacy International v Security Services
    Tom is acting in the IPT on what is set to be one of the leading cases of 2016 on privacy and the limits set by Article 8 on state surveillance.
  • Advertising Regulation
    Tom is an acknowledged expert in advertising law, particularly EU law relating to consumer protection.  He has regularly advised the OFT/CMA, the ASA, BCAP and other self-regulatory bodies, as well as private parties such as C&C, Diomed, Sainsburys, Martin Grant Homes and SodaStream about advertising regulation across a variety of media, in particular comparative and misleading advertising.  In the last two years Tom acted for Sainsbury’s in its challenge to the ASA; and is acting for claimants in cases against Clearcast and the Portman Group.

Telecommunications

Over the years Tom has been involved in a number of high profile telecommunications disputes, acting for, amongst others, O2, H3G, Vodafone, Virgin, 118 118, Lebara, Inmarsat, the MoD and Ofcom.

Current and recent work

  • Lebara v Lyca (see above)
  • 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. Recently Tom has advised the MoD on similar issues.
  • 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 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