What was it that attracted you to competition law? Competition law is fascinating and litigating competition law is more so. Competition law is never boring. It throws up interesting points of law whilst being grounded in the real world. Businesses adopt restrictive practices on a daily basis. Some are legitimate, some are not. Some are good for the consumer, some are not. The aim of competition law is to identify those which are not. For example, a non-compete obligation in a vertical agreement may have procompetitive effects but a non-compete obligation between competitors is likely to be objectionable. It then becomes critical to determine whether the two businesses are actual or potential competitors. Take another example: it is the lifeblood of competition that businesses undercut their competitors to exclude them from the market. Yet if a company is dominant, the same conduct may become objectionable. The definition of the relevant market – how wide or how narrow – becomes a critical factor. The uncertainty of litigation is then added to the mix. One must try to predict the outcome of competition law disputes, but one can often feel like Pythia at Delphi (and, unfortunately, one can sometimes feel like Cassandra of Troy – to utter true prophecies but never be believed)! The final ingredient is the advocacy, which is obviously about persuasion and how best to put a case. But it involves knowing what to say as well as knowing what not to say! By the same token, why did you opt to become a barrister? It was a television programme that inspired me to be a barrister. In the 1970s, ITV (Granada) showed a programme called ‘Crown Court’. It ran in the afternoons and each programme comprised three episodes of 25 minutes; the first episode started with the prosecution and the next episode with the defence. The players were actors, but the jury was picked from the public and would deliver their verdict in the last episode. It was compelling stuff. Anyone who has watched it will remember the foreboding introductory music (which as I found out many years later was the Sinfonietta 4th movement by Janáček). It was that programme that got me hooked into the legal system. I always wanted to be a barrister after that. Please tell us about the areas that your practice covers. While at university, I studied European law. This was a move away from a rigid statutory interpretation of an Act of Parliament and away from a deep forensic analysis of a ratio decidendi. It was a game changer to have fundamental principles to consider, such as the principles of equal treatment and effective protection of individual rights. It was this principle of effective protection that led me to realise that Mr Crehan, a publican, should be entitled to claim damages for loss suffered by being tied to purchasing beer from his brewery landlord. The reaction of the High Court was to bar his claim because he was party to the unlawful tie. But he was signing on the landlord’s standard terms and conditions and was not responsible for the alleged foreclosure of the market. The CJEU ruled that the principle of ex turpi causa should not bar his claim because that would infringe the principle of effective protection (Case C-453/99 Courage v Crehan). This judgment was the catalyst for the wave of private litigation that subsequently followed. I have always practised competition law, but in the early years I was a common law European Union lawyer. EU law spanned nearly every subject, including agriculture, employment, transport, customs and restrictive practices. As lawyers gradually got to grips with EU law, my practice narrowed until it was focused exclusively on competition law. This has remained so because of the introduction of the Competition Act 1998, Brexit, and the grant of greater powers to the CMA. What types of cases do you handle? I have been lucky enough to have appeared in several seminal cases involving competition law. I have had several trips to the Supreme Court on competition issues. In Sainsbury’s Supermarkets v Visa and Mastercard [2020] UKSC 24 I acted for Sainsbury’s, who successfully argued that the interchange fees payable to the payment card companies restricted competition. The judgment also contained important statements on the pass-on defence (we had successfully argued in the Mastercard trial that there was zero pass-on). In Deutsche Bahn v Morgan Crucible [2014] UKSC 24, which concerned the graphite cartel, we successfully argued that the claim for damages was timebarred. Similarly, in BCL Old v BASF [2012] UKSC 45, which concerned the vitamins cartel, we successfully argued that the claim for damages be dismissed. In CMA v Flynn Pharma [2022] UKSC 14 we successfully argued that the CMA should be liable to adverse costs orders (the CMA had argued that, as a public Competition law is never boring. It throws up interesting points of law whilst being grounded in the real world. 14 LAWYERMONTHLY JANUARY 2023
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