BRENDAN MCGURK

M.A. (Cantab), BCL (Oxon), D.Phil (Oxon)
CALL DATE: 2004

SUMMARY

Brendan has a broad commercial and public law practice and regularly appears in the County Courts and the High Court. He is developing a particular expertise in disputes with a private law / public law overlap and is regularly instructed in Utilities, Procurement, European, Environmental and Sports Law matters. His commercial practice encompasses Insurance, Civil Fraud, Product Liability and all areas of Professional Liability. He is developing a strong Financial Services practice and has advised and acted in a number of claims for and against Independent Financial Advisors.

In February 2009, Brendan was appointed to the Attorney General's approved panel of counsel (C panel) and regularly acts for the Home Office, the Foreign and Commonwealth Office, DEFRA and the Ministry of Defence. Building on his academic background in this area, Brendan undertakes all areas of public law work including Judicial Review and Human Rights, Immigration, Public Inquiries, Revenue Matters, Housing, and Environmental disputes. Brendan has developed vetted (DV) security clearance.

Brendan is the co-author (with Mark Cannon QC) of Professional Indemnity Insurance, published in March 2010 by Oxford University Press.

Brendan was recommended as a leading junior in the Legal 500 2012 for Administrative and Public Law, described as 'intellectually powerful, thorough and hardworking.'

Brendan obtained First Class Honours as an Undergraduate at Cambridge and as a Postgraduate at Oxford. His D.Phil was supervised by Professor John Gardner and is entitled 'The Rule of Law in the Regulatory State'. He was short-listed for a Prize Fellowship at All Souls College, Oxford in 2003, won a Queen Mother's Major Scholarship in 2004 and a Bar European Group Scholarship in 2006. Before coming to the Bar, Brendan held a lectureship in Constitutional and Administrative Law at Wadham College in the University of Oxford.

 

RECENT & ONGOING CASES

  • London Olympics 2012: Brendan is currently acting for a number of Team GB Athletes who have sought to challenge the selection decisions of their governing bodies' Olympic Selection Panel
  • Floe Telecom Limited & Ors v Secretary of State for Culture, Olympics Media and Sport (HC11CO4029) (acting for DCMS in Francovich Damages claim by several commercial providers of GSM Gateway technology)
  • BT v Ofcom (acting for Ofcom against BT, Sky and TalkTalk's appeal against Ofcom's Local Loop Unbundling and Wholesale Line Rental Charge Control Review)
  • Isle of Wight CC & Ors v HMRC (determination of whether disapplication of the VAT Directive would lead to the distortion of competition between local authorities and private providers providing the same service in the same market)
  • Brown & Ors v Innovator Plc and others [2012] EWHC 1321 (Comm) (claim arising out of allegedly fraudulent tax efficient technology investment schemes)
  • Kingspan Environmental and Ors v Borealis A/S and another [2012] EWHC 1147 (Comm) (a claim against Borealis A/S regarding the production of external oil tanks which, allegedly were not fit for purpose)
  • Ofgem v National Grid Gas Plc (regulatory enforcement proceedings brought as a result of alleged irregularities in the reporting of pipe-replacement under the 30-30 mains replacement programme)
  • Case C-301/10 Commission v United Kingdom (infraction proceedings brought by the EC over the UK's alleged non-compliance with the Urban Waste Water Directive
  • R (On the application of Tham Yong) v Ministry of Defence (a proposed claim for judicial review arising out of a call for a public inquiry to be held into the deaths in 1948 of a number of people during the Malayan Emergency)
  • R (On the application of Mhango) v Secretary of State for the Home Department [2010] EWHC 1321 (Admin) (claim under art. 8 to remain in the UK)
  • A.C. Ward & Sons Ltd v Catlin (Five) & Others [2009] EWHC 3122 (Comm) (Protections Warranties in Commercial Contents Insurance policies)
  • Carillion Plc v Bradford Metropolitan Borough Council (claim for wasted bid costs as a result of the suspension and abandonment of a bid process governed by the Public Services Contracts Regulations 1993)

ADMINISTRATIVE LAW AND HUMAN RIGHTS

Brendan has recently acted for the United Kingdom Government, instructed by the Department for the Environment, Food and Rural Affairs (DEFRA) in relation to the infraction proceedings brought by the European Commission over the UK's alleged non-compliance with the Urban Waste Water Directive: Case C-301/10 Commission v United Kingdom. Brendan is being led by David Anderson QC.

  • Blackbay Ventures Limited v Secretary of State for Health (acting for pharmacy chain in dispute over wholesale dealer licensing)
  • Carpenter v Ministry of Justice (acting for the Ministry of Justice in a claim for declaration of incompatibility of the Gender Reassignment Act 2004 with the ECHR)
  • Gallaher Plc and Somerfield Stores Ltd v Office of Fair Trading: (Counsel to OFT (led by Richard Gordon QC and Andrew Henshaw). Challenge by the Claimants over the alleged failure of the OFT to extend the benefit of certain assurances given to one addressee of its Tobacco Cartel decision to other addressees of that decision, alleged to be in breach of its equal treatment obligations).
  • Victor Tchenguiz v Serious Fraud Office: (acting for the SFO (led by James Eadie QC and Jeremy Johnson QC) in a civil claim by the Claimant arising from the SFO's execution of a search warrant over the Claimant's property in a high profile investigation of his financial activities following the collapse of the Icelandic Bank Kaupthing).
  • R (on the application of U) v Secretary of State for the Home Department: (acted for the Defendant on an application in SIAC by terror suspect 'U' to extend the boundaries of the zone to which he is confined when not under curfew).
  • Kamoka & Ors v The Security Services and Ors: (acting for the Security Services (led by Rory Phillips QC) in a claim relating to alleged complicity in extraordinary rendition).
  • Libya Country Guidance: Counsel for the Secretary of State for the Home Department in relation to the updated guidance to be provided in relation to Libyan immigration claims following the fall of Colonel Gaddafi.
  • R (On the application of Tham Yong) v Ministry of Defence. He acted for the Ministry of Defence and the Foreign and Commonwealth Office in a proposed claim for judicial review arising out of a call for a public inquiry to be held into the deaths of a number of people during the Malayan Emergency in 1948:
  • A B & Others v Ministry of Defence - The British Nuclear Test Veterans Litigation: (acted for the Ministry of Defence in relation to the class action brought by former servicemen alleging improper exposure to radiation during the UK's nuclear test programme in the Pacific in the 1950s.
  • The Billy Wright Murder Inquiry: (Brendan acted for the Northern Ireland Office and the Northern Ireland Prison Service in the public inquiry convened to consider the allegations of collusion surrounding the death of Billy Wright in HMP Maze).
  • Brendan acted for the Foreign and Commonwealth Office in relation to the civil claims brought by a number of British citizens and residents as a result of being held in Guantanamo Bay.
  • He is regularly instructed in immigration matters on behalf of the Secretary of State for the Home Department.

COMMERCIAL LAW AND FINANCIAL SERVICES REGULATION

Brendan's commercial practice spans the fields of Insurance, Professional Liability, Civil Fraud, Product Liability and Financial Services Law. He regularly acts in trials from the county courts to the High court, both on his own account and as a junior. He is regularly instructed to advise on, draft pleadings and act in domestic and international commercial disputes.

  • Brown & Ors v Innovator Plc and others (the Innovator litigation), acting for a firm of solicitors in relation to a claim arising out of allegedly fraudulent tax efficient technology investment schemes established by their former client (led by Justin Fenwick QC). Brendan is also instructed in sister litigation arising out of very similar technology tax avoidance schemes (the Keydata litigation).
  • Collyer Bristow & Ors v Streets Financial Services & Ors (Part 20 proceedings subsequently commenced against a large number of Independent Financial Advisors in the Innovator litigation).
  • Allardyce & Ors v ProAct Financial & Ors (Defending Independent Financial Advisors in the Little Wings Film Finance Tax Avoidance litigation)
  • Kingspan Environmental and Ors v Borealis A/S and another (Folio 871 of 2009). Product Liability dispute in the Commercial Court.
  • Everything Everywhere Limited v Shebang Limited: Counsel to Everything Everywhere (the owner of Orange and T-Mobile). Termination of Mobile Phone distribution agreements.
  • Durham v BAI (Run Off) Ltd : Brendan was instructed as a research junior for the Zurich Insurance company in the Employer's Liability Policy Trigger litigation in the Court of Appeal in, led by Jeremy Stuart-Smith QC.
  • Re The Garstang Network: acted in a claim by a network of Independent Financial Advisors against a Member IFA under an Appointed Representative Agreement.
  • He has acted in a number of fraud cases, and in particular, mortgage fraud, both for and against solicitors and for lenders.

COMPETITION AND REGULATORY

  • BT v Ofcom; Sky / TalkTalk v Ofcom: Counsel to Ofcom (led by Josh Holmes). BT, Sky and Talk Talk are challenging the price control review issued by Ofcom in relation to Wholesale Line Rental and Local Loop Unbundling services.
  • Gallaher Plc and Somerfield Stores Ltd v Office of Fair Trading: Counsel to OFT (led by Daniel Beard QC, standing counsel to OFT). The applicants are seeking permission to appeal out of time to challenge the OFT's Tobacco cartel decision in light of that decision being set aside as against other addressees to the decision who have since successfully appealed that decision.
  • Chemistree v Roche Products Ltd: Counsel to the Claimant Pharmacy company in a dispute over the consequences of its having discontinued proceedings against Roche in which it had alleged constructive refusal to supply.
  • Blackbay Ventures Limited v Secretary of State for Health (acting for pharmacy chain in dispute over wholesale dealer licensing)
  • Advised Local Authorities on the applicability of the Electricity Act 1989's licensing regime in relation to renewable energy installations designed to avail of the Feed in Tariff scheme.

EUROPEAN LAW, ENVIRONMENTAL LAW AND PUBLIC PROCUREMENT

  • Case C-301/10 Commission v United Kingdom: acted for the United Kingdom Government, instructed by the Department for the Environment, Food and Rural Affairs (DEFRA) in relation to the infraction proceedings brought by the European Commission over the UK's alleged non-compliance with the Urban Waste Water Directive
  • Law Enforcement International Limited v National Policing Improvement Agency: Acting for the NPIA (led by Philip Moser QC). Civil claim arising out of the decision to use Single Tender Action (and thus forego the holding of a public procurement under the 2006 Regulations) on grounds of national security.
  • Floe Telecoms Limited & Ors v Department for Culture Media and Sport: Counsel for DCMS (led by Philip Moser QC) Francovich damages claim brought by 6 telecoms companies against DCMS for its (predecessor's) refusal to exempt GSM Gateway technology from a licensing requirement, which refusal is alleged to constitute a failure by the UK to implement certain European Directives.
  • Buckinghamshire Hospitals NHS Trust v DRC Locums Limited: acting for the NHS Trust in a dispute over the entitlement of locums providers to charge uplifted commission payments under a National Locums Framework Agreement.
  • Carillion Plc v Bradford Metropolitan Borough Council: acted for Carillion Plc in a claim for wasted bid costs as a result of the suspension and abandonment of a procurement process (led by Michael Bowsher QC).
  • Brendan has advised on the potential application of the EU procurement rules in relation to a number of service proposals arising out of the Department for Energy and Climate Change's consultation on financial incentives for renewable energy and Feed in Tariffs in relation to small scale, low carbon electricity generation of capacity up to 5Mw.
  • Zablockyte v London Borough of Harrow (CJEU) (allocation of housing was allegedly discriminatory under EU Law)
  • Environment Agency v Kirkwood: Counsel to the Environment Agency, seeking recovery of waste management licence fees and seeking to resist a counterclaim for loss as a result of an alleged agreement between the parties as to the handling of contaminated clay.
  • Re Guildford College: Counsel to the College in relation to various issues surrounding the tendering of works leading to a substantial redevelopment of its sporting and educational facilities.
  • Advised the Environment Agency in relation to claims for remediation (following the pollution of rivers), and has advised on the Agency's enforcement powers.
  • Acted in a number of cases relating to the breach of conditions attached to Waste Management licences.
  • Advised on the impact of the Department for Energy and Climate Change's consultation on financial incentives for renewable energy which include a Feed in Tariff ("FIT") for small scale, low carbon electricity generation of capacity up to 5MW.
  • Advised insurers on the impact on certain types of cover of the Environmental Liability Directive.

INSURANCE AND REINSURANCE

Brendan regularly advises and acts in a range of insurance disputes and is developing a particular expertise in relation to liability insurance. As co-author of Professional Indemnity Insurance published in 2010 by OUP, Brendan is often instructed by both professional insureds and insurers in professional liability disputes. He has also advised (on wordings and coverage issues) in relation to environmental liabilities, construction liabilities and employment / health and safety liabilities.

  • McManus Seddon Runhams v European Risk Insurance Company Hf: acting for insured seeking declarations that valid notification of circumstances was made under a policy of professional indemnity insurance
  • Givaudan Suisse SA v Chubb Insurance Company of Europe SE and other :acting on behalf of Chubb Insurance in relation to the policy aspects of a mass-tort action brought by American Claimants in the Swiss Courts
  • He was recently instructed in A.C. Ward & Sons Ltd v Catlin (Five) & Others [2009] EWHC 3122 (Comm), an important case on the Protections Warranties in Commercial Contents Insurance policies.
  • Durham v BAI (Run Off) Ltd : acted as research junior for Zurich Insurance Company in the Employer's Liability Policy Trigger litigation appeal, which considered the correct interpretation of various employers' liability policies and, therefore, which insurers will be responsible for damages to employees who contracted mesothelioma
  • Re Falconara: acted on behalf of insurers on a major commercial arbitration arising out of delay claims brought in respect of the construction of a power plant. The case considered the impact of the decision of Colman J in Lumbermans Mutual Insurance Company v Bovis Lend Lease Limited.
  • Brendan has advised insurers on the potential liabilities of local authorities arising out of the major flood events of 2007.

PROFESSIONAL LIABILITY AND DISCIPLINARY

Brendan has experience advising and acting both for and against a broad range of professionals including financial services professionals, lawyers, insurance brokers and surveyors and valuers.

Financial Services Professionals

  • Brendan is currently acting for a firm of solicitors who have issued Part 20 proceedings against a large number of Independent Financial Advisors in relation to their introduction of High Net Worth Investors to tax efficient technology investment schemes: Brown & Ors v InnovatorOne Plc & Ors.
  • He has recently acted in a claim by a network of Independent Financial Advisors against a Member IFA under an Appointed Representative Agreement.

Lawyers

Brendan has acted on numerous occasions both for and against solicitors and his practice in this area encompasses:

  • Claims made by lenders against solicitors involving, in particular, allegations of fraud, breach of fiduciary duty and/or breach of trust.
  • Claims made by investors against solicitors acting on behalf of companies operating investment schemes
  • Property and conveyancing actions including claims involving allegations of undue influence and fraud.
  • A number of cases involving wills and estates including "disappointed beneficiary" actions.

Surveyors & Valuers

He has been instructed on a number of cases involving surveyors, in particular, in claims brought by lenders and purchasers.

Insurance Brokers & Agents

Brendan has advised on and drafted claims relating to the alleged failure of brokers to place appropriate cover.

Disciplinary

Brendan has appeared in the Solicitors Disciplinary Tribunal and recently acted in Solicitors Regulation Authority v Baptist, Benz, Taylor and Wilde Case No. 10494-2010 (alleged breaches of the SPR in relation to schemes alleged to have been Collective Investment Schemes).

Brendan has also acted for defendants in fields from accountancy to nursing.

SPORTS LAW

  • Paddy Power v LOCOG (acted for Claimant in dispute over compatibility of billboard campaign with Olympics advertising regulations).
  • Winston Gordon & Ors v British Judo Federation: Counsel to a number of Team GB 'Judokas' who contested the decision of the British Judo Federation not to select them for London 2012. As a result of the challenge, Mr Gordon was selected to represent Team GB, the only successful challenge to a selection decision in the run up to the London Games.
  • Joe Calvino v British Weight-Lifting (acted for Ms Calvino in seeking to challenge BWL's Olympics de-selection decision)
  • Allardyce & Ors v ProAct Financial Limited & Ors (claim by, amongst others, Sam Allardyce and Peter Reid in relation to film finance tax avoidance schemes)
  • Anthony McGann v Michael Bisping: (dispute between sports agent seeking recovery of commission payments from his former client, a leading 'ultimate cage fighter' in the United States of America).
  • Brown & Ors v InnovatorOne Plc (footballers and agents invested into failed tax efficient technology schemes).
  • Re Don Valley Sports Stadium: (advising the local authority in a matter relating to whether additional securitisation of a sports stadium would be in breach of covenants given by the local authority owner to banks that had an existing security interest in the stadium).
  • Hougaard v World Artists Limited (acted for Saracens and South African international in a commission and Image Rights dispute with former agent).
  • Costa v Welsh Karate (acted for the Welsh Karate Governing Body in a dispute with a former affiliate member over voting rights and disqualification).
  • Brendan acts for players in disciplinary contexts and takes instructions on a direct basis having obtained a direct access certificate.