Focus: CAT - Competition winners
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20 August 2013
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5 August 2013
Two barristers' chambers, two very different paths to the top. When it comes to appearing before the Competition Appeal Tribunal (CAT), there are two sets that dominate: Brick Court Chambers and Monckton Chambers.
The rivalry between the two is strong, and no wonder. Competition is the hottest area of law at the moment. Instructed by all of the major City law firms, both sets have firmly established their domain before the CAT.
Since its inception in April 2003, the CAT has heard almost 40 cases and, between them, Brick Court and Monckton have represented at least one of the parties on every case.
While Monckton may represent the UK competition establishment, with a strong track record of representing the regulators, the battleground is now for private sector clients - one of Brick Court's strengths.
Brick Court's private life
Barristers from Brick Court Chambers have appeared before the CAT on behalf of their clients in more than 30 cases. Since the CAT was established, the set has acted mostly for private sector clients.
Leading the Brick Court contingent are Nick Green QC and Mark Hoskins. They have been at the forefront of many of the high-profile competition cases to come before the CAT, including the cases of Mastercard and Royal Bank of Scotland versus the Office of Fair Trading (OFT).
Green attributes the repeat instructions to Brick Court's reputation and "commercial edge".
"We're a commercial set and we're unrivalled in terms of the breadth of work that we do," says Green. "We work with clients to find commercial solutions that are acceptable to the court."
Indeed, Green has been credited by several well-known competition lawyers as breaking Monckton Chambers' grip on the market.
"Ten years ago, Monckton Chambers absolutely dominated the competition field, but Brick Court - and Nick Green in particular - has loosened that stranglehold," one source says. "Green has been highly successful."
However, while Brick Court has a solid footing in the competition field, competition lawyers say the set has not yet regained the heights of some of the legendary competition lawyers in their prime a decade ago.
"Green is very good, but he's not unchallengeable," a magic circle competition lawyer says. "He has a monopoly on CAT cases, but he is not quite the calibre of Jeremy Lever, John Swift or Chris Bellamy from Monckton, who were in the super-able category."
Monckton's regulatory approval
Monckton Chambers comes at CAT work from a different angle.
"There is no doubt that Monckton has a greater pool of talent than Brick Court," says one magic circle competition partner. "Monckton has the heritage and an unsurpassed depth of knowledge of EU law."
With 32 practitioners specialising in EU competition and regulatory law, the set is preferred by regulators such as the OFT and Ofcom. Indeed, Monckton barristers Jon Turner and Daniel Beard are standing counsel to the OFT.
Turner, who has practised EU and competition law for more than 15 years, was first instructed by the OFT in 1997.
OFT chairman Philip Collins says that the regulator appoints individuals as opposed to chambers. "Turner is very practical and very decisive, which are two things the OFT values," he tells The Lawyer. "It also helps when a barrister knows how the OFT works."
But here is where things get interesting. Although Monckton has acted for regulators in the majority of its cases before the CAT, its barristers are increasingly making a bid for more work from the private sector.
"We've been proactive in seeking work from private sector clients," Monckton barrister George Peretz declares. "We've invested in marketing and participated in a lot of forums. At the moment, I have an equal amount of cases where I'm acting for the regulator and where I'm acting for private clients and I think that is quite common.
"We can provide a team of people who are all experts in competition law. Also, the CAT requires a certain depth of experience - a lot of it is not necessarily black-letter law."
As standing counsel for the OFT, both Turner and Beard cannot act against the regulator, but Turner is quick to argue that they are the exception to the rule.
"Barristers at Monckton Chambers are often instructed by the regulators, but they've also been instructed by private sector clients, such as Manchester United, Welsh Water, Burgess and the Association of Convenience Stores, to name a few," Turner says.
"At the same time, barristers from Brick Court have done cases for the regulators and it would be wrong to say overall there is some different approach to the work."
History, to a large extent, is what differentiates the two rivals. Monckton's strengths lie in its barristers' exceptional knowledge of European competition law, whereas barristers from Brick Court are highly skilled litigators.
As one City competition lawyer says: "It depends on the type of case. If I had a very technical EU case I would definitely go to Monckton, but if I needed a knock-about, common-sense lawyer, I would go to Brick Court."
Brick Court's Green admits there is a healthy rivalry between the two sets. He says that representing private clients before the CAT requires the ability to find market-driven solutions.
"If you work for private clients you're going to spend your time finding solutions, filtering your arguments and looking at the evidence," Green says. "When it comes to the day in court, you're putting something across that is lawful and sounds sensible from an economic and business standpoint."
Brick Court's Hoskins adds: "If you're acting for a private client you're looking for a way in, then you're looking for the argument and you're looking for the pressure point: you're more proactive."
As a matter of course, Brick Court regularly goes head-to-head with regulators such as the OFT and Ofcom.
The OFT, which is most often represented by Monckton Chambers, has regularly been subjected to public criticism from the CAT in the past.
Green says the actions before the CAT have provided a steep learning curve for the regulators. "It's early days in the new regime," he says. "It's a highly contentious procedure now and the regulators are starting to realise that.
"It's not a criticism of the regulators because they're bound to be appealed and that's because the decisions they make are incredibly important. But the tribunal demands high standards and the regulators have to adapt. If anything, the CAT has been salutary for the regulators because they have been forced to raise their standards."
Monckton's bid to win more work from the private sector seems like an astute tactic of playing Brick Court at its own game. Whichever set gets the upper hand, law firms certainly have no shortage of talent to choose from. For the moment, the two rivals look set to maintain their dominance.
Young lawyers at Brick Court are often seconded to European courts, including Luxembourg, as part of their training.
"They get an inside track and a better understanding of how it works and learning the point of entry to a court is very important," says Green.
As far as Monckton Chambers is concerned, one City competition lawyer says: "People such as Jeremy Lever and [the late] Richard Fowler really were the best in the field - they were pre-eminent. There aren't many [barristers] left of that quality."
But some defend the current generation of lawyers at Monckton, insisting the set is at the top of its game.
In fact, market sources list Jon Turner, Chris Vajda QC, George Peretz and Kassie Smith among the best in their field.