Javan Herberg QC

Javan regularly acts both for and against regulatory bodies, including FCA; PRA; FSCS; LME and AIM; FOS; Financial Reporting Council, Takeover Panel; Pensions Regulator, Ombudsman and Protection Fund; designated professional bodies and various overseas regulators (in Hong Kong, Dubai, Qatar and offshore jurisdictions). He regularly appears before the FCA’s RDC and in the Upper Tribunal, frequently for banks and other large financial institutions as well as individuals and the regulator. He was for several years until taking silk classified as the sole top-band financial services junior in Chambers UK Directory. He is also regularly instructed in financial services litigation in the Commercial Court and Chancery Division.

He has advised extensively in relation to the Financial Services and Markets Act 2000 (FSMA) and subsequent legislation. During the passage of FSMA, his advice with Lord Lester QC on its human rights implications was considered by the Joint (Lords/Commons) Committee on Financial Services and exhibited to their First Report (HC 328-I/HL Paper 50-I). He acted for SIB in a consultative role during the development of its disqualification power, appearing as counsel in the first (and subsequent) cases in which the power was exercised. He advised at an early stage in the development of bank resolution powers.

Over the past two decades, he has been instructed in many of the major regulatory disputes and scandals. He appeared in the Morgan Grenfell Companies' and Individuals' disciplinary actions, arising out of the Peter Young unit trusts affair, and in the “Flaming Ferraris” disciplinary proceedings against James Archer and other CSFB employees. He acted for the FSA in the first challenge by way of judicial review to the s.56 Prohibition Order regime: R (Davis) v Financial Services Authority [2004] 1 WLR 185 (CA); in the first market abuse case to be referred to the FSMT, Paul (“The Plumber”) Davidson and Ashley Tatham v FSA; on a reference by Sir Philip Watts, arising out of the Shell Overstatement of Oil Reserves affair; in the major FSA investigation into Split Capital Investment Trusts; and for HM Treasury in the Northern Rock hedge fund shareholder Human Rights claim (R (SRM Global Capital and others) v HM Treasury (Court of Appeal)).  He acted for the British Bankers Association in the high profile JR challenge to the FCI’s PPI Policy Statement in 2011; for Yukos Oil in the JR of the FSA and Stock Exchange decision to list Rosneft (R (Yukos Oil) v FSA and Stock Exchange); for ANZ Bank in Commercial Court proceedings in respect of emerging market debt instruments (Zaeta; Altman; Alaluf v ANZ); for the Claimant in Walker v Scottish Equitable Plc [2007] Pens LR 347 (ChD) (the first case of product provider liability for advice on pension transfer); for Winterflood Securities (Upper Tribunal and CA; market abuse in AIM market making operations); for the Equitable Life Members Action Group in their successful JR of HM Treasury’s decision to reject the Ombudsman’s findings of maladministration arising out of the Equitable Life saga; for Prudential in the Tijane Thiam/Prudential disciplinary case arising out of the abortive AIG take-over; for the applicant in Macris v. FCA [2017] 1 WLR 1477 (Supreme Court) (third party rights in Warning and Decision Notices; "London Whale" affair); and for the FCA in the Tesco accounting mis-statement criminal and restitution settlement in March 2017.

He advises and represents regulators, authorised firms and individuals in fields including market abuse and insider dealing; disciplinary, regulatory and restitutionary obligations; authorisation and change in control; s.166 and other investigations; LIBOR; FX; collective investment schemes; senior management and compliance responsibilities; listing rules and disclosure obligations; Consumer Credit Act obligations; futures and options trading and synthetic derivatives; structured products (e.g. Splits, Precipice Bonds and interest rate products); pensions transfers, funding and annuities; PPI; peer-to-peer lending, financial promotions, and bank/insurance restructurings and ring fencing transfers. He regularly advises and represents large institutions, in regulatory matters and financial services litigation, such as (in the past few years) Lloyds, RBS, HSBC, Barclays, JP Morgan, Citibank, UBS, Zurich, Prudential, Standard Life, SocGen, Credit Agricole, Macquerie, Nationwide, Aviva, AXA, Tesco, Greenlight Capital, Threadneedle and Winterflood.

He has also acted for clients under DTI and FRC investigation; in directors' disqualification cases; in relation to money laundering and other regulatory issues (both in this country and in offshore jurisdictions) and (in an advisory capacity) for the Hong Kong SFC, HK Take-over Panel and other overseas institutions.  He has recently been instructed in a number of substantial matters involving Financial Reporting Council investigations or before the FRC Tribunal.  He is instructed as an expert witness (eg for JP Morgan in proceedings overseas), and was retained by the QCFRA in the first matter before the Qatar Financial Centre Regulatory Tribunal.  He regularly appears in Commercial Court FS and banking matters, including recently Alan Shearer v. Suffolk Life (June 2017) and for John Varley in PCP Partners v Barclays (Amanda Staveley-led claim arising out of Qatar credit crunch fundraising; claim stayed November 2017).

He is currently involved in a number of significant non-public matters before the RDC or under FCA investigation, including alleged annuity mis-selling; PPI Plevin exposure; and market abuse.

He sits on the Advisory Board of the Financial Services Lawyers’ Association.  He recently co-chaired the Commercial Bar Association's Financial Services Sub-Group Report on the impact of BREXIT on financial services (at www.combar.com).

Javan regularly acts both for and against regulatory bodies, including FCA; PRA; FSCS; LME and AIM; FOS; Financial Reporting Council, Takeover Panel; Pensions Regulator, Ombudsman and Protection Fund; designated professional bodies and various overseas regulators (in Hong Kong, Dubai, Qatar and offshore jurisdictions). He regularly appears before the FCA’s RDC and in the Upper Tribunal, frequently for banks and other large financial institutions as well as individuals and the regulator. He was for several years until taking silk classified as the sole top-band financial services junior in Chambers UK Directory. He is also regularly instructed in financial services and banking litigation in the Commercial Court and Chancery Division.

He has advised extensively in relation to the Financial Services and Markets Act 2000 (FSMA) and subsequent legislation. During the passage of FSMA, his advice with Lord Lester QC on its human rights implications was considered by the Joint (Lords/Commons) Committee on Financial Services and exhibited to their First Report (HC 328-I/HL Paper 50-I). He acted for SIB in a consultative role during the development of its disqualification power, appearing as counsel in the first (and subsequent) cases in which the power was exercised. He advised at an early stage in the development of bank resolution powers.

Over the past two decades, he has been instructed in many of the major regulatory disputes and scandals. He appeared in the Morgan Grenfell Companies' and Individuals' disciplinary actions, arising out of the Peter Young unit trusts affair, and in the “Flaming Ferraris” disciplinary proceedings against James Archer and other CSFB employees. He acted for the FSA in the first challenge by way of judicial review to the s.56 Prohibition Order regime: R (Davis) v Financial Services Authority [2004] 1 WLR 185 (CA); in the first market abuse case to be referred to the FSMT, Paul (“The Plumber”) Davidson and Ashley Tatham v FSA; on a reference by Sir Philip Watts, arising out of the Shell Overstatement of Oil Reserves affair; in the major FSA investigation into Split Capital Investment Trusts; and for HM Treasury in the Northern Rock hedge fund shareholder Human Rights claim (R (SRM Global Capital and others) v HM Treasury (Court of Appeal)).  He acted for the British Bankers Association in the high profile JR challenge to the FCI’s PPI Policy Statement in 2011; for Yukos Oil in the JR of the FSA and Stock Exchange decision to list Rosneft (R (Yukos Oil) v FSA and Stock Exchange); for ANZ Bank in Commercial Court proceedings in respect of emerging market debt instruments (Zaeta; Altman; Alaluf v ANZ); for the Equitable Life Members Action Group in their successful JR of HM Treasury’s decision to reject the Ombudsman’s findings of maladministration arising out of the Equitable Life saga; for Prudential in the Tijane Thiam/Prudential disciplinary case arising out of the abortive AIG take-over; for the applicant in Macris v. FCA [2017] 1 WLR 1477 (Supreme Court) (third party rights in Warning and Decision Notices; "London Whale" affair); for RBS in regulatory proceedings arising from its 2014 IT malfunction leading to major failures of accounts/payments processing; and for the FCA in the Tesco accounting mis-statement criminal and restitution settlement in March 2017.

He advises and represents regulators, authorised firms and individuals in fields including market abuse and insider dealing; regulatory and restitutionary obligations; authorisation and change in control; s.166 and other investigations; LIBOR; FX; collective investment schemes; senior management and compliance responsibilities; listing rules and disclosure obligations; Consumer Credit Act obligations; futures and options trading and synthetic derivatives; structured products (e.g. Splits, Precipice Bonds and interest rate products); pensions transfers, funding and annuities; PPI; peer-to-peer lending, financial promotions, and bank/insurance restructurings and ring fencing transfers. He regularly advises and represents large institutions, in regulatory matters and financial services litigation, such as (in the past few years) Lloyds, RBS, HSBC, Barclays, JP Morgan, Citibank, UBS, Zurich, Prudential, Standard Life, SocGen, Credit Agricole, Macquerie, Nationwide, Aviva, AXA, Tesco, Greenlight Capital, Threadneedle and Winterflood.

He has also acted for clients under DTI and FRC investigation; in directors' disqualification cases; in relation to money laundering and other regulatory issues (both in this country and in offshore jurisdictions) and (in an advisory capacity) for the Hong Kong SFC, HK Take-over Panel and other overseas institutions. He is instructed as an expert witness (eg for JP Morgan in proceedings overseas), and was retained by the QCFRA in the first matter before the Qatar Financial Centre Regulatory Tribunal.  He regularly appears in Commercial Court FS and banking matters, including recently Alan Shearer v. Suffolk Life (June 2017) and for John Varley in PCP Partners v Barclays (Amanda Staveley-led claim arising out of Qatar credit crunch fundraising; claim stayed November 2017).

He is currently involved in a number of significant non-public matters before the RDC or under FCA investigation, including alleged annuity mis-selling; PPI Plevin exposure; and market abuse.

He sits on the Advisory Board of the Financial Services Lawyers’ Association.  He recently co-chaired the Commercial Bar Association's Financial Services Sub-Group Report on the impact of BREXIT on financial services (at www.combar.com).

Javan acts in a wide range of commercial disputes in the Commercial Court and Chancery Division, specializing in particular in cases involving banking/financial services (detailed experience set out in separate sections), acting for and against large institutions in both retail mis-selling and wholesale commercial disputes, as well as fraud and asset recovery matters. He has considerable experience of money laundering regulations and Companies Act requests for disclosure, both in the UK and overseas. He has also acted in a number of tax and revenue matters, including on an ongoing basis for Royal Mail defending substantial Group Litigation relating to liability of postal services to VAT.

Javan appears in a wide range of public law and regulatory contexts, both for regulators and other public bodies and for applicants. He has particular expertise in the fields of commercial regulation, especially financial services, and professional discipline.

Javan regularly appears in major public law regulatory challenges, in the Administrative Court and elsewhere. He has acted in most of the recent major judicial reviews of regulatory action in the financial services field (Holmcroft/KPMG; PPI, Northern Rock, Yukos, Equitable Life).

He acts, for and against regulators, in fields including broadcasting (regularly advising the BBC on party political broadcasts, prime ministerial debates, and frequently appearing in JRs of the BBC); newspapers; postal services (for Royal Mail in a series of JRs); telecommunications (Ofcom; see separate section of CV); electricity and gas (Ofgem, British Gas, Electricity Association); railways (including Railtrack/Network Rail; London Underground PPP; Rail Regulator); civil aviation (CAA, NATS); health (DOH; National Aids Trust); pharmaceuticals licensing; DTI document production notices; professional regulation and discipline (Law Society, Bar Standards Board, FCA, Institute of Actuaries, Accountancy regulators including FRC; Pensions Ombudsman; HEFC; Audit Commission).  He has regularly acted for the Legal Services Commission in defending claims for judicial review and, overseas, advises foreign financial services regulators on a regular basis.  He has recently been involved in a number of substantial matters involving the Financial Reporting Council.

He was, until his appointment to silk, a member of the Attorney General's ‘A’ Panel, and was Chair of the Constitutional and Administrative Law Bar Association 2012-2014.  

Javan acts in a range of public law HRA and civil liberties disputes, involving in particular freedom of expression (in media cases), elections, health, and privacy/ freedom of movement. He is a general editor of the leading textbook, Lester, Pannick and Herberg, Human Rights Law and Practice (Butterworths, 3rd ed, 2009).

Javan advises on a wide range of public procurement issues, and has appeared in a number of the leading recent cases on public procurement, including the first public procurement case to reach the Supreme Court. Much of his practice is advisory and therefore not public, including advising clients in sectors such as utilities, airports, local authorities, health trusts, and public concessions.

Javan frequently appears in the Privy Council in a wide range of public law and commercial matters on appeal from a number of jurisdictions, particularly the Caribbean. He is instructed both in cases where he has appeared in, or advised in relation to, the local courts, and also for the first time in the Privy Council.

Javan regularly acts in telecommunications disputes, in public law regulatory challenges and in the Competition Appeals Tribunal as well as in commercial disputes. He recently acted for Vodafone in a substantial Ofcom investigation, and has regularly appeared for Ofcom in disputes involving mobile network operators and BT.