Thomas Sharpe KC

"Really hard-working and all over the details. He doesn't cut corners and is a super person to have on board when you're faced with big ticket and complex regulatory work." "He gets to the real essence of a point; he has a gentle manner but is able to identify the flaw in arguments and pursue those points zealously." Chambers & Partners 2020 - Competition Law

"He has an unparalleled experience of the interface between competition law and regulatory issues, and a sage-like knowledge of how regulators approach things." Chambers & Partners 2018 - Competition Law

'Tom has a formidable track record and is excellent at delivering what the client needs.' Chambers & Partners 2017 - Competition Law

"He continues to be one of a select group of supreme competition silks.' 'A very effective advocate who is hugely experienced. His name carries clout in itself and he is a first choice for judicial reviews.' Chambers UK 2016

• Unitech v Deutsche Bank AG (Court of Appeal)
  The question before the Court of Appeal was whether the English courts should, as a matter of public policy, refuse to enforce a LIBOR contractual term when LIBOR was fixed by an illegal cartel agreement, or, whether the innocent third party's only remedy lay in damages.
• Safeway v Twigger & Ors
  The new owners of Safeway sought to recover a fine likely to be levied on Safeway by the UK competition authorities from former board members and employees. Tom acted for the defendants and the defence of ex turpi causa was successful in defeating the claim, so establishing the defence in this context.
• MasterCard (various)
  Acting for MasterCard 2003-2015 in the protracted Commission investigation investigation leading to its decision, then in appeals against that decision to the General Court and Court of Justice. In addition, in parallel in the UK, MasterCard was faced with an adverse OFT decision against its interchange fee which was successfully quashed in the CAT. After the decision MasterCard was faced with a large number of private actions in the High Court and CAT, all of which were preceded by numerous interim applications involving access to Commission documents, confidentiality and jurisdictional issues. The case is the first to address the proper analysis of "two-sided markets" in competition law. 
• SONI Limited v NIAUR (The Northern Ireland Authority for Utility Regulation)
  Tom acted for SONI, which is the licensed Transmission System Operator (TSO) of the Electricity Transmission System (ETS) for Northern Ireland (NI). The CMA determined an appeal by SONI against a decision of the Northern Ireland Regulator (UR) to modify the conditions of SONI's licence. The appeal was successful and the CMA required the UR to amend SONI's licence. Please see here for more information.
• Ineos Vinyls Ltd & Ors  -v- Huntsman Petrochemicals (UK) Ltd 
  Tom acted for Hunstman in defeating a claim of abuse of a dominant position in chemicals pricing and transportation. This is an important case in calculating the existence of "overcharging" in Chapter II and Article 102 cases.
• Pittville Ltd (as assignee of rights of MasterCigars Direct Ltd) v (1) Hunters & Frankau Ltd (2) Corp Habanos SA (2015)
  Tom acted for Pittville, which was alleged conspiracy and breach of the competition rules but whose case had been struck out years before owing to a breach of a security for costs order. He argued successfully arguing that in granting relief from sanctions the court had a discretionary power under CPR r.3.1 to extend time for making the application even though an extension of time had not been applied for. In the unusual circumstances of the case, a security for costs order was varied four years after it had been made, so as to permit a claimant to provide alternative security.
• Hutchison 3G UK Ltd v Office of Communications (Competition Appeal Tribunal) [2009] CAT 11 
  Acting for the CC in an appeal instigated by the two appellant mobile network operators in which the Competition Appeal Tribunal was required to determine challenges made by the intervening operators to a determination made by the CC following the referral of certain price control matters.
• Clear v New Zealand Telecom
  Tom appeared in the Privy Council on appeal from New Zealand, a challenge under section 36 of the Commerce Act alleging abuse of New Zealand Telecom's dominant position by overcharging for access from Clear's long lines to the final telephone user. The leading case on the application of the Baumol-Willing rule.
• European Night Services v Commission
  A successful challenge to the Commission's refusal to grant exemption to the British and French railway companies for their long term rights to Eurostar paths. This is still the leading case on the "rule of reason" in applying Article 101(1).

 

Other competition litigation involves: successfully challenging a CC report on PPI acting for Barclays Bank; successfully defending the CC in judicial review of its decisions on mobile termination charges, and advising the CC in later proceedings; jurisdictional issues arising from patents and FRAND; arbitrations on the enforceability of market sharing terms in worldwide distribution agreements, railway and energy agreements;  advice and proceedings in the Court of Justice on state aids and successful defending the German coal industry from a damages claim in the High Court and Court of Appeal for losses caused to a Welsh claimant from an illegal state aid; successful significant reductions in Commission’s fines (eg BPB); successfully defending the Post Office against a Chapter II challenge, the first case under the Competition Act 1998. 

UK competition cases include:

• Soni v Northern Ireland Utility Regulator (NIUR), A successful challenge to a determination by the NIUR of various matters in Soni's licence. The case involved many issues including the Single Electricity Market in Ireland 
• ENWL v GEMA, Acting for ENWL in a licence modification case on electricity distribution 
• Bristol Water appeal from Ofwat determination, for Ofwat. Market investigations into grocery retailing, buses, motor industry, electrical goods, the proposed market abuse conditions in energy.

"He provides very strategic input and is a great team player with a tremendous rapport with clients." Chambers & Partners 2020 - Energy & Natural Resources 

"Very astute and switched on from the moment of instruction, he is a standout silk in this field." Legal 500 2020 - Energy

"He has unparalleled experience of the interface between competition and regulatory matters, and sage-like knowledge of the types of approach taken by regulators." Chambers & Partners 2018 - Energy and Natural Resources 

"A very effective advocate." "Reassuringly patrician and encyclopaedically knowledgeable." Chambers UK 2016

Tom has a significant energy and natural resources practice.  He regularly advises on a wide range of industry issues, from regulation in the domestic retail market, to international contracts for the exploration, supply and sale of oil, gas and electricity (including nuclear), interconnection and other issues.  He is also familiar with ROCS (the renewable obiligations scheme), the CRC Energy Efficiency Scheme and the EU Emissions Trading Scheme and has advised oil and gas companies in relation to sea bed leases.

• Advising oil and gas companies in relation to seabed leases.
• Ineos Vinyls Ltd -v- Huntsman Petrochemicals (UK) Ltd
  Successfully defeated chapter II, Article 82 claim against Huntsman in relation to allegations of excessive prices for ethylene and pipelines.
• For E.ON in the Competition Appeal Tribunal (CAT) and in the High Court challenging an ORR decision.

• City Fibre v Ofcom
  Tom acted for City Fibre in its CAT challenge to Ofcom’s decision on dark fibre and leased line prices, which the CAT remitted to the CMA on the price control apsects.
• Infinis v GEMA
  In the High Court and Court of Appeal, a case involving whether the wrongful refusal of ROCS by GEMA could found an action for “just satisfaction” under Article 1 of the First Protocol of the ECHR. The Court of Appeal held that it could, and thus extended the scope of damages for pure economic loss in the absence of negligence or misfeasance.
• Camelot UK Lotteries LTD v Gambling Commission
  Tom acted for the The Health Lottery in successfully defending the challenge to the grant of its licence by Camelot.
• Easyair LTD v CAA
  Acting for BAA in resisting a claim by easyJet to set aside the CAA's Gatwick landing charges.
• London and South East Railway Ltd v British Transport Police Authority
  Successfully acting for the claimants in a case concerning the proper basis on which railway companies pay for the expenses of the British Transport Police.
• Intervention Board for Agriculture Produce ex parte British Sugar
  A successful judicial review in the ECJ by British Sugar of a fine imposed by the International Board for Agricultural Products.
• T-Mobile v Competition Commission
  Successfully resisting the judicial review of the Competition Commission report on termination charges
• Home Office ex parte Electronic Fund Raising Company Ltd
  A challenge to the Government under Article 59 EC to the prohibition of competition to The National Lottery. 
• H.M. Treasury ex p BT on a reference to the Court of Justice, a successful challenge to the leased lines EC Telecommunications Council Directive and implementing UK Regulations
• Ex p Fedesa ECJ - still the leading case on proportionality, involving the legality of the EU ban on beef hormone growth promoters

• EasyJet Airline Co Ltd v Civil Aviation Authority (Court of Appeal) [2009] EWCA Civ 1361
  Acting for Gatwick Airport Limited in dismissal easyJet’s appeal against the refusal of its claim for judicial review. 
• R. (on the application of London and South East Railway Ltd) v British Transport Police Authority Queen's Bench Division (Administrative Court), [2009] EWHC 1255 (Admin)
  Acting for the claimants in a case concerning the basis on which TOCs pay for the expenses of the British Transport Police. It was successfully argued on behalf of the claimants that they had the right to be charged in accordance with express provisions as to payment contained in police services agreements between them and the BTPA. 
• Acting for Arriva Buses in the High Court defending a claim of abuse of a dominant position. 
• Advising on challenges and potential challenges to bus company mergers.
• Advising major automotive industry companies on contractual issues.

• British Telecommunications Plc v Office of Communications (Competition Appeal Tribunal) [2009] CAT 1
• Hutchison 3G UK Ltd v Office of Communications (Competition Appeal Tribunal) [2009] CAT 11
  Acting for the CC in an appeal instigated by the two appellant mobile network operators in which the Competition Appeal Tribunal was required to determine challenges made by the intervening operators to a determination made by the CC following the referral of certain price control matters.
• Challenging EC Commission state aids decisions in the CFI for European telecommunications undertakings
• Successfully defending the Competition Commission’s report on calls to mobile phones against a judicial review brought by T-Mobile, Vodafone and Orange.
• Clear v New Zealand Telecom in the Privy Council from New Zealand, the leading case on the principles to be used in interconnection and the application of the 'Baumol-Willig' rule.

• Ongoing Advisory role for the Water Industry Commission for Scotland.
• Advising Ofwat in relation to the 2009 and 2014 price reviews and in other related matters.
• Advising Ofwat in relation to supplier licence modifications.
• Overturning Ofgem’s decision to introduce zonal transmission losses in electricity generation.
• Advising Ofgem in relation to licence modifications and ‘innovation funding’.