The Competition Appeal Tribunal: a new venue for challenging restrictive covenants?

Matthew O'ReganOne of the most significant changes to UK competition litigation introduced by the Consumer Rights Act 2015 was the creation of a ‘fast track’ procedure for some cases brought in the Competition Appeal Tribunal (“CAT”). This procedure is particularly suitable for claims brought by individuals, micro-enterprises and SMEs seeking redress for harm suffered by anti-competitive behaviour in breach of UK and/or EU competition law, which are neither factually nor legally complex.

In a recent article published in European Competition Law Review, a leading competition law publication, specialist competition law barrister, Matthew O’Regan, considers how the fast track procedure may be used to challenge restrictive covenants contain in commercial property agreements and business sale agreements.

Matthew is a skilled competition litigator, undertaking work in the English and EU courts. He advises and represents clients on all types of competition disputes, including appeals in cartel and State aid cases, judicial reviews, follow-on damages actions and standalone disputes raising competition issues. “Matthew is quickly able to digest large amounts of information relating to very complex matters. His past experience as a solicitor means he is very pragmatic and proactive in his approach to advising clients.” Chambers UK, Competition Law (2017)

View article: The Competition Appeal Tribunal: a new venue for challenging restrictive covenants

This material was first published by Sweet & Maxwell Limited in O’Regan, The Competition Appeal Tribunal: a new venue for challenging restrictive covenants? [2016] 37 European Competition Law Review 393 and is published by agreement with the Publishers.

If you would like to discuss instructing Matthew on any related matter, please contact his clerks on 0117 923 4740 or email .

Merry Christmas and a Happy New Year from everyone at St John’s Chambers


Over the festive period, Chambers will be closed from 4.00pm on Friday, 23rd December and will re-open from 10.00am until 4.00pm on Thursday 29th December through to Friday 30th December.

We will open again for normal business hours on Tuesday, 3th January 2017.

For any emergency enquiries, please see our out of hours numbers.

A successful year of contentious probate updates from our wills, trusts & tax team

Alex Troup and Contentious Probate Update

Alex Troup, Head of Wills, Trusts & Tax

This year our wills trusts and tax team presented their contentious probate update at seven different venues across the UK; Cornwall, Exeter, Cardiff, Swansea, Bristol, Cheltenham and Oxford.

This road show aimed to bring practitioners up to speed with all the latest developments in the world of contentious probate.  The events were principally targeted at solicitors who are (or would like to be) involved in contentious probate work, but were also of interest to non-contentious lawyers, Will writing firms and professional executors.

Leading practitioners spoke on topical issues, including construction of wills, agricultural property relief, proprietary estoppel, alternative dispute resolution, removing personal representatives and trustees, inheritance act, breach of trusts and more.  Some of these talks can be downloaded below.

Local solicitors from each area attended the events which have been described as; “Excellent, engaging and very useful”, “Very worthwhile”, and “Good value for money”.

Members of our wills, trusts & tax team will be speaking at a contentious probate update with Royds Withy King and Mogers Drewett in Bath in 2017. Further details will be available on our events and seminars page soon.

To make sure you don’t miss out on any of our updates and events, sign up to our mailing list

Download seminar notes below:

Company and Commercial team produce the third series of contract case law updates

St John’s Chambers welcomes the third update in a new series of contract case law updates produced by our company and commercial team.

Nicholas PointonThese updates aim to provide an invaluable resource for keeping up to date with the most important developments in contract law. In this issue Nick Pointon considers when commitment letters become binding following the Commercial Court’s decision in Novus Aviation v Alubaf, and when “close of business” takes place in the London commercial banking sector following the latest decision in the Lehman Brothers litigation. Our newest member of Chambers, Natasha Dzameh reviews several recent decisions, ranging from issues of offer and acceptance considered in Arcardis Consulting v AMEC to the recovery of damages for a loss of chance in McGill v Sports and Entertainment Media Group. Chancery and commercial pupil, Emma Price  looks at the recent decision on the Brogden bankers’ claim for bonuses and considers the approach taken by the Court of Appeal to the construction of contracts.

Natasha DzamehEach case discussed will feature an “In brief…” summary panel, designed to allow those in a hurry to take the most useful points from each case. No case will occupy more than two pages of the update in total. Although authored by litigators, attempts will be made where possible to identify useful points for the non-contentious practitioner too.

Since our next instalment will be due in March 2017, we take this opportunity to wish all readers a merry Christmas and a happy New Year!

emma-price-116These updates are produced in a pdf format for you to download below:

Family Finance Team provide useful update to Bristol lawyers

Zoe SaundersOver 30 lawyers from in and around Bristol attended our family finance team’s 1 hour hot topic seminar on Wednesday, 30th November.

Leading Juniors Zoë Saunders, Andrew Commins  along with the latest addition to the team Bethany Hardwick presented talks on spousal maintenance, variation of settlements and non-matrimonial property.

Lawyers attending the event included Barcan+Kirby, Burges Andrew ComminsSalmon, The Family Law Company, Simpson Millar, Wards Solicitors and others.

The event has been described as “Fantastic value for money” and “Really helpful, focused and informative.”

St John’s Chambers’ Family Team has recently been ranked inBethany Hardwick
Band 1 of Chambers UK, they are described as; “A very strong Bristol-based team capable of representing clients across the full spectrum of family law matters. Offers a robust matrimonial finance practice and has also built up significant experience in private and public ADR proceedings. The set is also highly regarded for its forward-thinking approach to client service.”
Chambers UK, Family (2017)

If you missed this seminar you can download the course notes here:

Make sure you don’t miss out on our upcoming seminars and conferences by signing up to our mailing list

One man’s inference is another man’s imputation: logic theory and legal practice in TOLATA 1996 claims – latest article from Andrew Commins

Andrew ComminsAndrew Commins, leading junior and member of our Family Finance, ToLATA and Inheritance Team, provides an analysis of recent case law on the difference between inference and imputation in TOLATA judgments in his latest article published on the Family Law website.

‘From a drop of water a logician could infer the possibility of an Atlantic or a Niagra without having seen or heard of one or the other.’ (Arthur Conan Doyle, The Adventures of Sherlock Holmes)

In domestic cases involving a dispute about the fact and/or extent of a party’s beneficial interest in property, the search is primarily to ascertain the parties’ intentions, whether expressed or inferred (Jones v Kernott [2011] UKSC 53, [2012] 1 FLR 45, at para [31]). If a property’s legal title is held in two parties’ joint names (A and B), the law presumes that both parties (A and B) hold the beneficial interest under a joint tenancy. If legal title is in a party’s sole name (A), the presumption is that A is the sole beneficial owner. The other party (B) must satisfy the court that he has some beneficial interest in the property before seeking a quantification of that interest. In the latter ‘sole name’ case, and absent a written declaration of trust, the court relies principally on oral agreements or the parties’ conduct in relation to the property to infer a common intention constructive trust in favour of B. If the court is able to infer such an agreement but is unable also to infer the proportions in which the beneficial interest is to be held (its quantification), it is permissible for the court to impute, ie to attribute to the parties an intention as to how the beneficial interest is held: thereby to quantify and to declare those beneficial interests.

Continue to full article: One man’s inference is another man’s imputation: logic theory and legal practice in TOLATA 1996 claims.

“Andrew is well known for representing high net worth clients on significant matrimonial finance issues, and is experienced at handling cases involving pensions, companies and trusts. In addition to his litigation practice, he also works as a mediator. ‘Clients like his straightforward and practical approach to cases.’ ‘Very calm and reasonable, and has an excellent client manner’.” Chambers UK, Family/Matrimonial (2017)

If you would like to discuss instructing Andrew on a related matter please contact his clerks via email at

St John’s Chambers welcomes family law barrister Bethany Hardwick

Bethany HardwickCalled to the bar in 2014 Bethany Hardwick joins St John’s Chambers’ Family Practice Group following a family law focussed pupillage at 1 Hare Court in London.

Originally from Cornwall, Bethany moved to Oxford and thereafter London to complete her legal education and training. She developed her passion for family law and children’s rights as an undergraduate at Oxford where she ultimately finished top in her year for the subject. Bethany obtained extensive experience in financial remedy proceedings during her pupillage at 1 Hare Court, and is comfortable handling complex financial structures and settlements. She is now a specialist family law barrister at St John’s, accepting instructions in all aspects of family law, in particular private children disputes and financial relief claims.

Bethany accepts instructions to represent clients at all stages of financial remedy proceedings. She has experience in pension disputes, non-disclosure and applications for variation. She is also happy to advise on jurisdictional issues. Her financial experience also covers cohabitation disputes under ToLATA 1996 and claims under Schedule 1 of the Children Act 1989.

In addition Bethany represents clients in all forms of private children proceedings. This includes applications for child arrangement orders, prohibited steps order and leave to remove.

Bethany said: “I am delighted to be joining a family law team with such fantastic strength and depth across all areas of family law. The team combines first rate legal analysis with a sensitive client focussed approach. My aim is to provide that same excellent level of service to my clients on joining St John’s”.

Judi Evans, Head of our family practice group said: “I am pleased to welcome Bethany to the Family Practice Group. She has a keen interest in all aspects of family law, and adopts a user-friendly approach to all her work. She will be a very valuable addition to our growing family team.” 

For more details about Bethany’s practice, please visit her profile.

If you would like to discuss instructing Beth, please contact her clerks on 0117 923 4720 or e-mail .

Property and real estate barristers bring lawyers up to speed with the latest developments in property law

John SharplesMembers of our property and real estate team have had a busy autumn delivering their property litigation update to solicitors in Cardiff, Swansea and Bristol over the last few months. These updates were aimed at bringing lawyers up to speed with all the latest developments in the world of property matters.

Chaired by one of the Western Circuit’s property litigation leaders, John Sharples, the afternoon gave delegates a variety of talks from Adam Boyle (who has two proprietary estoppel cases in the Court of Appeal this year under his belt), delivering a review on the Court of Appeal’s recent attempts to grapple with the doctrine of proprietary estoppel. Richard Gold went on to consider developments in landlord and tenant law.  A quick stop for cream teas in the afternoon, and delegates were back to their seats to hear commercial and chancery barrister, Joss Knight, talk about recent developments relating to the law of guarantees with a particular emphasis on the High Court ruling of the viability of assignments in the case of EMI Group Ltd v O v H Q 1 Ltd [2016] EWHC 529 (Ch). The seminar concluded with Charlie Newington-Bridges considering, drafting and interpretation of land option agreements in the context of a case he recently took to the Court of Appeal.

The seminars attracted many solicitors from Bristol and South Wales including members of the Legal Network Wales who kindly sponsored the Swansea event. The delegates described these updates as ‘detailed and a variety of areas covered’ and speakers were ‘excellent, and engaging’.

The property and real estate team will be back on the road again in the New Year delivering talks in Bristol, Exeter, Cornwall and South Wales. To subscribe to our mailing list so you can be kept up to date with these talks, please click here.

You can download copies of the talks:

For further information about our property and real estate team, please visit this page.

Financial remedy update: Latest article from Christopher Sharp QC

CChristopher Sharphristopher Sharp QC, who is acknowledged by Chambers UK as one of only five star Silks in Family Law in the country has written an article for the Autumn edition of the FLBA’s newsletter, Family Affairs.

The article continues Christopher’s regular reviews of the more important recent financial remedy cases, this one covering the period from June 2016 to October 2016.

Download articles:

“Christopher is hugely respected for his experience of representing high net worth clients in major ancillary relief and ToLATA cases. He regularly acts in matters with an international element to them. ‘He’s brilliant on the detail, very clever, very thorough, and he doesn’t give up – he’s a classic QC.’ “ Chambers UK (2017).

View profile: Christopher Sharp QC 

Qader v Esure Court of Appeal decision:- fixed costs do not apply to ex-protocol cases that are allocated to the multi-track

matthew-whiteMatthew White, a member of our personal injury team, provides an update in the much awaited judgment in Qader v Esure and conjoined appeal [2016] EWCA Civ 1109 which the Court of Appeal has handed down today.

CPR Part 45 section IIIA deals with cases which start life within an EL/PL/RTA protocol (what you probably think of as “portal” claims). Section IIIA defines itself as the fixed costs regime for cases that start life as a protocol/portal claim but exit the process.

A question arose in relation to cases which started life as protocol/portal claims, but were allocated to the multi-track. In Qader itself, for example, value was modest (and well within fast-track value), but due to allegations that this was a deliberate “slam on” accident (i.e. the Claimant’s car deliberately braked so that the Defendant could not avoid a collision), the claim was allocated to the multi-track (and a 2-day trial was anticipated). The District Judge and (on first appeal) Circuit Judge both held that CPR Part 45 section IIIA means what it says, and since the case started life as a protocol case, only fixed costs were recoverable even though it was allocated to the multi-track and a trial lasting more than 1 day was expected. In other words, fixed costs which were intended for fast track cases lasting a day or less would have to be made to stretch to cover more significant litigation (not an enticing prospect for the lawyers).

The big news is in the heading of this piece. The Court of Appeal determined that CPR Part 45 section IIIA is automatically dis-applied in any case allocated to the multi-track.

How they got there is interesting. Giving the leading judgment (with which the others agreed), Briggs LJ said that “no ordinary process of construction or interpretation of the wording of the relevant rules could lead to that result [that fixed costs were dis-applied on allocation to the multi-track]”. Nor would it be irrational were the rules to be that fixed costs apply even when portal claims were allocated to the multi-track. However, an analysis of the historic origins of the fixed costs regime shows that that was not what was intended, and the court would add words to the CPR to achieve the legislative intention.

I did not expect that reasoning myself. I rather expected the Court of Appeal to observe that fixed costs “top out” at £25,000 (since costs are a percentage of damages, the top band being where damages are “more than £10,000 but not more than £25,000” – the inference (to my mind) being that if damages were more than £25,000 the fixed costs regime would not apply). That was not, in the event, the route taken.

The result here will bring sighs of relief from claimant solicitors who were facing arguments from defendants to the effect that if the claim started life in the portal, fixed costs would apply even if the claim was re-valued at well in excess of fast track limits.

It seems to me inevitable that this decision will impact on litigation. I can foresee the following:-

  1. Claimant advisers might well be keen to beef-up the complexity of what might otherwise be regarded as relatively ordinary fast track litigation with a view to persuading a court to allocate to the multi-track (and trigger assessed rather than fixed costs). Briggs LJ said that “I consider that this is a risk best addressed by relying upon the good sense and vigour of case management judges in furthering the overriding objective, and in penalising those who seek to abuse the opportunity to which the allocation stage in such a claim gives rise.” Whilst I follow the sentiment behind that, the opportunity to “penalise” is relatively limited given that one would expect a costs penalty only, and the size of the costs penalty would be limited by the fixed costs regime itself unless the court found there to be exceptional circumstances so as to trigger 45.29J. That is, if a claimant were to take a punt on allocation to the multi-track for a borderline spurious reason, that claimant might calculate that the likely extent of the risk is the low fixed costs of a failed application which might be regarded as a gamble worth taking when set against the potential benefits of allocation out of the fixed costs regime.
  2. Defendant advisers might be deterred from running arguments which would (or might) lead to cases being allocated to the multi-track. This decision might be a disincentive to argue fraud.

Note what the decision does and does not do. Part 45.29B has been amended as follows (new words added by the Court of Appeal shown with underlining):-

Subject to rules 45.29F, 45.29G, 45.29H and 45.29J and for so long as the claim is not allocated to the multi-track, if, in a claim started under the RTA Protocol, the Claim Notification Form is submitted on or after 31st July 2013, the only costs allowed are—

(a) the fixed costs in rule 45.29C;

(b) disbursements in accordance with rule 45.29I.

The decision does nothing in relation to cases not allocated to the multi-track. Thus if the claim settles for over £25,000 without being allocated, fixed costs apply: the anomaly of the £25,000 ceiling on damages remains.

We also have the problem of costs incurred before allocation. Suppose that a claim is in the portal and it becomes apparent relatively early that it will exceed £25,000 in value. It is not hard to imagine a case in which the claimant’s solicitor would want/need to spend a reasonable amount pre-issue. What of those costs? Is that solicitor compelled to issue to secure allocation to the multi-track to recover those costs? That will pressure such a claimant solicitor into an unwanted court timetable and into doing more work after the budget is set than claimant solicitors generally like (given the common approach of getting a good part of the preparatory work done before budgeting). Or can that solicitor expect the court to award pre-allocation costs as though the allocation were to the multi-track (even though the language added to the rules by the Court of Appeal does not seem to suggest that)?

Such problems will need to be worked out in practice. In the meantime, rules changes designed to save costs continue to cause problems and generate satellite litigation.

Matthew White
16th November 2016

Download judgment: Qader v Esure and conjoined appeal 2016 EWCA civ 1109

If you would like to instruct Matthew on a related matter please contact his clerks on