Thomas de la Mare

Public Law, Human Rights and EU

There is very considerable cross-over between Tom’s public law, human rights and EU 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 discipline harmonized by EU law such as: pharmaceuticals, pesticides and GMOs; consumer protection and fair trading; broadcasting.

Tom’s public law and human rights practice has a wide scope.  Terrorism, free speech, privacy, property and fair hearings have featured particularly prominently in Tom’s recent work.

Tom’s EU public law practice is extremely broad (see below for the commercial aspects of Tom’s EU practice).  He regularly appears for and against the UK in the ECJ and in cases raising EU law points in domestic tribunals.  His public law work embraces subjects as diverse as consumer protection, misleading advertising, customs and duties control, social security co-ordination, discrimination, citizenship, free movement (goods, persons, services), human rights.

Tom’s recent clients include:

• Binyam Mohammed, AE and others (as a Special Advocate)
• the ABPI, PMCOPA, CPA, CHRE, MHRA, Pfizer, Eisai, Medtronic, BMS, Goldshield, Novartis, CST Pharma, Remedy UK (in the pharmaceutical/medical field)
• the ASA, OFT, DBIS and CAA (in the field of consumer protection)
• TfL, Arriva, National Express (in the transport field)
• Ofcom and Ofgem (for regulatory advice)
• JUSTICE and Liberty (for pro bono human rights interventions)
• BAT and NACMO (tobacco regulation)
• the Ritz (in the Diana Inquest)
• the IPCC (inquests)
  as well as many other public bodies and private clients (both individual and corporate)

Public Law & Human Rights:

• The Binyam Mohammed Litigation
  Tom led the Special Advocate team representing Binyam Mohammed at all stages of the high profile litigation.  Tom was responsible for the cross-examination and submissions relating to Witness B that led in substantial part to his investigation by the DPP and for the challenge to the claim to PII for the now infamous paragraphs redacted from the first open judgment.  That challenge proceeded in closed hearing for over six months before BM’s open lawyers and the press (at Tom’s instigation) were given an opportunity to participate.
• AE, AF et al v SSHD
  Tom appeared on behalf of AE, one the long-running control orders that was part of the saga that defined the anti-terrorism landscape after the Belmarsh case (in which Tom also appeared as a Special Advocate).  Tom contributed to the group Special Advocate submissions that led to the successful result in the House of Lords case
• Other Special Advocacy work
  Tom was one of three special advocates to give evidence to the Joint Committee on Human Rights in connection with the Special Advocate Procedure.  Tom has participated in or drafted group Special Advocate submissions to a variety of domestic, parliamentary and international bodies on the working of the special advocate system.
• The Northern Rock Litigation
  Tom represented the small shareholders in the Northern Rock litigation, making submissions (alongside Lord Pannick for SRM and Michael Beloff for RAB) in both the Divisional Court and the Court of Appeal.

Public and EU work:

• Consumer litigation before the ECJ and domestically
  Tom has appeared in a number of recent notable ECJ cases governing the duties of Courts to raise points of their own motion, which may have wide-ranging ramifications for the way domestic consumer cases are conducted, including GSM Pannon and Penzuygi Leazing.  Domestically Tom has been advising the ASA, OFT, CAA and others in connection with consumer protection legislation.
• EU pharmaceutical litigation
  Tom appeared for the ABPI in the ECJ in its recent challenge to the domestic prescription incentive schemes, as well as for Eisai and BMS against NICE in judicial reviews that raised questions of equal treatment, the Transparency Directive and free movement of goods.  Tom is currently acting for the MHRA in the Synthon litigation defending a Factortame state liability claim.
• Counterfeit goods litigation
  Tom has been acting for the HMRC in the long-running litigation brought by Nokia concerning the ability of goods in transit through the EU to breach IP law harmonized by EC law (including trade marks, copyright and design rights).  After a win at first instance for HMRC the Nokia case was referred to the ECJ, where it is to be heard either with or shortly after similar litigation brought by Philips in the Netherlands (in which Tom is also acting for the UK).
• Tobacco control litigation
  Tom is acting for BAT (with Lord Pannick and Naina Patel) in challenges to the latest legislation banning all forms of display of tobacco products; and for NACMO in related litigation challenging the legality of a ban on cigarette vending machines.  The cases have raised substantial questions under EU free movement of goods principles, as well as A.10 commercial free speech issues.
• EU social security
  Tom has provided advice to and represented the DWP/UK in a number of recent social security cases referred to the ECJ (the Stewart and Taylor litigation) raising questions about the exportability of disability living allowance and other related benefits.

Other Public Law:

• Transport litigation
  Tom has been acting (with Nigel Pleming QC) in the long-running Arriva trains litigation which has already been through a concluded judicial review (in which Arriva successfully appeared as a supporting intervener, recovering its costs), a settled judicial review and a statutory arbitration with the relevant public policing body, the BTPA. Tom also provided a variety of public law, regulatory and commercial advice to National Express Plc in the context of disputes about its rail franchises.
• Remedy UK
  Tom appeared for Remedy UK (leading Tristan Jones) in the challenge brought by Remedy UK against the GMC’s refusal to open disciplinary proceedings against the Chief Medical Officer for his role in the debacle of reform of specialist medical training.
• Goldshield/Norris litigation
  Tom appeared both own his own and led (Lord Pannick, Claire Montgomery) for Goldshield in its legal challenge to the prosecution brought by the SFO (in its most expensive investigation ever) against Goldshield and others for alleged participation in a cartel.  Before the House of Lords Goldshield successfully argued that the offence of conspiracy to defraud could not embrace a simple agreement to fix prices; the case subsequently went back to the Criminal Court of Appeal in a challenge to the SFO’s unsuccessful attempt to reformulate its case.
• The Diana Inquest
  Tom represented the Ritz in the Diana Inquest.  The Ritz brought two successful judicial reviews against procedural decisions of the Coroner (not to sit with a jury; not to require paparazzi evidence to be introduced by a hearsay witness) and successful instigated and assisted in an exercise by the Coroner of his powers to require disclosure from third parties (namely Channel 4’s unbroadcast materials from its documentary aired days before the Inquest’s start).

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

• R(Binyam Mohammed) v SSFCO [2010] EWCA Civ 65
• Case C-243/08 Pannon GSM v Sustikné Györfi [2010] All ER (EC) 480
• R (Bristol-Myers Squibb Pharmaceuticals Ltd) v NICE [2010] 1 CMLR 31
• Case C-323/08 Rodriguez Mayor [2010] All ER (EC) 489
• R (SRM) v Treasury Commissioner [2009] EWCA Civ 788; [2010] BCC 58; [2009] UKHRR 1219
• Nokia Corp v HMRC [2009] EWHC 1903 (Ch); [2009] ETMR 59; [2010] FSR 5
• R. v GG Plc [2009] 1 WLR 458
• R(Corner House Research) v Director of Serious Fraud Office [2008] 3 WLR 568
• Secretary of State for the Home Department v AE, AF, AM & AN  [2008] EWCA Civ 1148 [2009] 2 WLR 423
• 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
• Norris v Government of the USA [2007] 1 WLR 1730; [2007] 2 All ER 29
• Her Majesty’s Commissioners for Revenue and Customs v Berriman [2007] EWHC 1183 (Admin); [2007] 4 All ER 925
• Case C-265/05 Perez Naranjo [2007] ECR I-000 (nyr), 16 January 2007
• 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
• R (Paul) v Deputy Coroner of the Queen’s Household et al [2007] 2 All ER 433
• R (Legal Remedy UK) v Secretary of State for Health (2007) 96 BMLR 191
• Her Majesty’s Commissioners for Revenue and Customs v Berriman [2007] 4 All ER 925
• Environment Agency v Biffa Waste Services Limited [2007] Env LR 16
• M v W (Declaration of Parentage) [2007] 2 F.L.R. 270 [2007] Fam Law 397
• R (Countryside Alliance) v HM Attorney-General [2006] EuLR 17
• Secretary of State for Work and Pensions v Walker-Fox [2006] EuLR 601
• R(Her Majesty’s Customs & Excise Commissioners) v Machell [2006] 1 WLR 609
• Sun Myung Moon v Secretary of State for the Home Department [2006] INLR 153

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 and ALBA.
• 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 (both with and without leaders) in commercial issues in the ECJ, 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 (standalone and follow on) 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 modeling) and have strong similarities with competition law follow on claims.

Tom’s follow on 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 ECJ, both for the UK and against it.

Civil Fraud:

• The Weavering litigation
  Tom is acting for the liquidators of Weavering Capital UK in its attempts to recover funds from its former directors.  The claims arise in connection with the collapse of the $500 million Weavering Hedge Fund and raises claims in deceit/misrepresentation, breach of fiduciary duty, negligence and breach of statutory duty.
• McCarthy & Stone v Nguyen
  Tom acted throughout for the Claimants (both led and unled) in an action against former employees/new employers involving multiple search orders and claims for breach of confidence, conversion, breach of IP/design rights, inducing breach etc.  The claim settled before trial after unsuccessful attempts to discharge the orders.
• Glidepath BV v Thompson
  Tom acted for the Claimant (led by Charles Flint QC and then Tom Beazley QC) against the former Managing Director, obtaining search and freezing orders in support of arbitral proceedings.  Such orders were successfully defended in challenges brought alleged lack of jurisdiction and material non-disclosure.

Competition Law:

• The Vitamins 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).
• 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.
• FRAND litigation: MPEG LA
  Tom acted (along with James Segan and Ian Mill QC) for MPEG LA, the body authorized to licence the patent portfolio underlying the MPEG digital video compression technology, in defending a basket of complaints brought against it by way of counterclaim by parties using such technology without a licence.  The case raised competition law issues (FRAND licensing), license exhaustion issues and patent infringement issues.
• Construction cartel
  Tom appeared for Apollo in its recent appeal against the fine imposed on it by the OFT in consequence of its participation in the building/construction cartel.  Judgment is currently awaited.
• Transport arbitrations
  Tom has acted for companies in a number of confidential transport arbitrations and disputes

EU State Liability Claims:

• Synthon litigation
  Tom is acting for the MHRA (led by Jonathan Hirst QC) in its defence of the claim brought by Synthon for c. £50m in consequence of a wrongful failure (liability having been established by the ECJ) to grant it a pharmaceutical marketing authorization.  The case is listed for a two to three week trial of causation and quantum issues in October 2010.
• Hoverspeed litigation
  Tom acted as lead junior to David Friedman QC for HMRC in defending the £50m damages claim brought against it by Hoverspeed. After representing the HMRC alone in the mediation the case was duly compromised..
• Tom has also successfully acted for private parties (in the Park Lane litigation) and other regulators (the GMC et al) in other state liability claims.

Conflict of Laws:

• Grovit v Turner
  Tom appeared for the Defendant, Grovit, in the House of Lords (led by Jonathan Harvie QC) and then in the ECJ (unled) in what has become one of the leading cases under the Brussels Convention/Regulation.  Tom successfully argued that the doctrines of forum non conveniens and abuse of process had no role under the Brussels system.
• Follow on claims
  Tom appeared for and argued the jurisdictional issues arising in the Provimi litigation, now the leading case on jurisdiction and exclusive jurisdiction clauses in the cartel/competition law context.  Subsequently Tom has advised on both jurisdiction and applicable law in numerous follow on damages claims.

Other Regulatory/Commercial:

• Barr v Biffa Waste Services
  Tom is acting for Biffa (led by Ian Croxford QC) in a group litigation order case set to raise key issues as to the relationship between specialist regulation (here, by the Environment Agency) and nuisance liability and as to the conduct of GLO litigation and the recovery of costs therein in litigation funded by CFA and ATE insurance.  A number of the interlocutory rulings have already been reported.  The case is currently set for a five week TCC trial in November/December 2010 before Coulson J.
• National Express franchises
  Tom acted for National Express (both leading and led by Pushpinder Saini QC) in National Express’s high profile franchise dispute with DfT, which dispute raised both public law/regulatory and pure commercial/contractual issues.
• Arriva Trains
  Tom has been acting for Arriva in its statutory arbitration with the BTPA in a case that raises a blend of public law/regulatory issues and pure contractual/private law disputes.

Recent reported commercial cases (past 5 years only):

• Kier Group Plc v OFT [2010] CAT 2; [2010] Comp AR 234
• Barr v Biffa Waste Services Ltd [2009] EWHC 1033 (TCC); [2010] Costs LR 291 [2010] Lloyd’s Rep IR 428;  and [2009] EWHC 2444 (TCC); (2009) 159 NLJ 1513
• BCL Old Co Ltd v BASF SE [2009] CAT 29; [2010] Comp AR 1
• R. v GG Plc [2008] UKHL 17
• Devenish Nutrition Ltd v Sanofi-Aventis SA [2007] EWHC 2394 (Ch); [2008] 2 WLR 637
• Norris v Government of the USA [2007] 1 WLR 1730; [2007] 2 All ER 29
• Case C-73/04 Klein [2006] ILPr 2
• Glidepath BV v Thompson Queen's Bench Division [2005] 2 All E.R. (Comm) 833; [2005] 2 Lloyd's Rep. 549 

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 pupilage with Ian Mill QC and Robert Anderson QC Tom has pursued an 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.  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 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.

Media, Entertainment, Broadcasting & Sport recent work:

• Binyam Mohammed Litigation
  Tom acted as the Special Advocate in the Binyam Mohammed litigation, in the course of which Tom raised a number of A.6 and A.10 ECHR points (in the context of a debate on PII) on the freedom of the press/reporting of legal proceedings that led to interventions by various national and international newspapers and the ICLR.
• FIFA/UEFA v Commission
  Tom acted for the UK in as the intervener in various actions in the CFI/General Court brought by FIFA and UEFA in relation to 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 CFI and judgment is awaited.  Tom also advised the DCMS on the related consultation on the review of the current UK list of protected events.
• British Weightlifting v UK Sport
  Tom successfully defended UK Sport in a judicial review brought against it by UK Weightlifting arising out of UK Sport’s refusal to pay the British Weightlifting Authority’s costs of defending a doping case in CAS.
• Re a football player
  Tom advised a football player in relation to the sporting disciplinary and employment consequences of a highly publicized non-sporting alleged criminal offence.
• Aramid Entertainment v Vertigo Films
  Tom acted for Vertigo films in a contractual dispute arising out of the film finance agreement it had entered into with Aramid.

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

• R(Binyam Mohammed) v SSFCO [2010] EWCA Civ 65
• Inner West London Assistant Deputy Coroner v Channel 4 Television Corpn (Practice Note) [2008] 1 WLR 945

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.

• Spectrum liberalization
  Tom has been advising O2 (along with Tom Richards) on the construction and effect of EU spectrum liberalization instruments and (led by Michael Beloff QC) has acted for O2 in the challenge it has brought (along with Vodafone) to Ofcom’s refusal to recognize its directly effective rights to hold a liberalized 2G/3G licence.  Judgment is awaited from the CAT (Vos J presiding)
• MCT Powers
  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.
• 2.6GHz Spectrum
  Tom acted for O2 (along with Lord Pannick QC and then Robert Howe QC and Tom Richards) in O2’s challenge to the Ofcom decision to conduct an immediate auction of 2.6 GHz spectrum.  The case led to an important decision by the Court of Appeal as to the (limited) jurisdiction of the CAT and the enhanced jurisdiction of the JR court where required and was proceeding to the potentially enhanced JR hearing before the case settled in view of the Government’s Independent Spectrum Broker’s acceptance of the merits of O2’s case.

Reported Telecommunications cases (past 5 years only)

• Vodafone v British Telecommunications Plc [2010] EWHC Civ 391
• T Mobile (UK) Ltd v Office of Communications Court of Appeal [2008] EWCA Civ 1373; [2009] 1 WLR 1565; [2009] Bus LR 794

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.