Competition

Competition

Laura Elizabeth John

Monckton Chambers

University: University of Oxford, Brasenose College
Degree: Law

Competition and regulatory work involves a mixture of commercial, public and European law. The general competition law prohibitions under EU and domestic law apply to all types of industries, and work in this area also involves a range of sector-specific regulation (eg, in the telecoms, energy and financial services sectors). It also includes merger control under EU law and the Enterprise Act 2002. The work involves a mix of regulatory and court proceedings, with claims for damages for breaches of competition law taking on a higher profile in recent years. Related areas are state aid and the rules on public sector and utility procurement. 


Deciding to pursue law at university was more of a “Why not?” than a “That’s for me!” moment for Laura Elizabeth John, but a stint as a civil servant confirmed to her that she was on the right path: “My decision to study law was based on no more sophisticated a reason than I was told at school that I’d be a good lawyer and that it meant I could do whatever A levels I wanted! After university, I decided to instead spend 18 months in the civil service, working on putting a bill through Parliament as a policy officer. I realised that I enjoyed law in practice and I reconnected with some of the reasons why I went for it in the first place, so I decided to go back to it.” She knew from the outset that the Bar would be a more natural fit: “I preferred the idea of being self-employed. I also like the fact that it is a very meritocratic profession; you do stand or fall on your merits.”

Laura competed her pupillage at Monckton, which she describes as being “unqualifiedly positive”. The insistence that pupils leave chambers every day at 6:00pm was appreciated, as was the continual assessment process, avoiding stressful pressure points through the year and “allowing us to show how we perform under ordinary conditions, as well as offering a more accurate reflection of what day-to-day practice is like”.

High value and multi-party

Although competition law is relatively broad in scope, Laura’s work focuses mostly on high-value, multi-party damages claims. “The sorts of issues that arise are often the same as any you would find in any large multi-party litigation – for example, to do with jurisdiction and conflicts of law – as well as more specific issues about whether competition law has been breached,” she explains. “Evaluating damages is also very complex, so I work a lot with expert economists and accountants to work out what the world would have looked like if the bad behaviour hadn’t occurred. You also become an expert on a really diverse range of issues as you try to get under the skin of a particular industry – for example, I’ve done cases on lightbulbs, pharmaceutical products and heavy-duty electrical equipment used in power substations. I have had to understand how all those products are manufactured, the supply chain, and the economics of the industries as a whole, in order to work with the witnesses and our experts on the detail of the arguments. That sort of variety is a huge challenge and very stimulating.”

Laura goes on to explain what else competition law might encompass: “Many of my colleagues work with the regulators, either at the stage of investigating potential breaches or of handling appeals in the Competition Tribunal or the European courts. There is a whole range of transactional work too; mergers, obviously, but there may also be two companies that want to sign a contract and they need to know whether the terms comply with competition law. Sometimes that sort of work ends up in litigation. For example, I am working on a case about the terms for licensing intellectual property in the telecoms sector, where Company A has sued Company B for infringing its patents, and Company B has alleged that A was in breach of competition law because it had an obligation to give a licence for use on fair, reasonable and non-discriminatory terms.”

“It is fundamental that you understand the actual job before you apply; the fact that you enjoy studying law and find it interesting is not enough”

French blocking

A fan of the variety offered by the practice area – “I think that’s crucial in keeping your interest and motivation in any job” – Laura was privileged to have played a role in the first competition case to be heard by the Supreme Court. Another highlight was a case that went to the Court of Appeal on a procedural point that had been “knocking about for at least 10 years, known as the ‘French blocking statute’”. She details what occurred: “One of the defendants was resisting disclosure on the basis that it was a French company and French law said that it would commit a criminal offence if it gave disclosure in foreign proceedings. The point went to the Court of Appeal for the first time in our case, and the court confirmed that disclosure is a matter for the English courts and at the discretion of the judge. The judge had exercised his discretion in our favour, which the Court of Appeal upheld, so it was a hands-down win for us and great to get clarity on the point.”

As most barristers will tell you, one downside is that your time is no longer entirely your own. “You take on professional and ethical obligations to your clients that you never entirely escape; if someone has an emergency and needs to phone you at 10:00pm, you have to take that call,” reflects Laura. “Life outside work can be impacted – which is not to say that you can’t have a life, but regularity and predictability are not there in the same way as if you were employed. You regularly have to cancel dinners, drinks and weekends away because matters have to be dealt with in a specific timeframe. It does get easier the more senior you are, but for the first couple of years you have to put your nose to the grindstone and just get on with it.”

Justice for all

Looking forward, Laura flags up two new initiatives which are designed to broaden the scope of who can bring a competition-related action: “The first is a fast-track procedure that aims to move cases through the Competition Appeal Tribunal more quickly and with a costs cap in place. We don’t know if people will make use of it, but in theory it could be a crucial development, as one of the big problems with competition law claims is cost - getting a case to trial will normally cost millions, if not tens of millions, of pounds, so only the big players can afford to do it. The fast-track procedure should make it more straightforward for smaller players to do something about anti-competitive behaviour.” The second is a new procedure to allow for collective actions, similar to those found in the United States: “One feature of competition cases is that the bad behaviour normally occurs at the top of the supply chain –someone overcharges for a small component of a product, with the inflated price being passed down through the supply chain and eventually to the customer at the bottom, who may not even know they’ve been overcharged. The original overcharger may make millions in illegal profit, but each individual consumer may only have been overcharged pennies and they are unlikely to bring a claim to recover that amount. Collective action will address the problem that it is uneconomic for consumers to bring an action, by allowing them to share legal costs.”

In Laura’s view, the best way to learn more about competition law is to speak to those who are already doing it: “For an area this niche, I don’t think you are automatically expected to have studied it – most of us come from a generalist background and then learn on the job. Rather, do a mini-pupillage or come along to drinks evenings at chambers that do this sort of work and talk to the junior barristers.” And that applies more generally too: “It is fundamental that you understand the actual job before you apply; the fact that you enjoy studying law and find it interesting is not enough. Practising at the Bar is not like being an academic at all, so you do need to get a feel for the day-to-day job.”