Theo Barclay

Theo is regarded as one of the up-and-coming juniors at the Commercial Bar, having been ranked by Legal 500 as a rising star in commercial litigation.

A large proportion of Theo’s work is in the Commercial Court. He has experience of a range of disputes, from chancery/charity litigation to conflict of law/jurisdiction applications, commercial judicial reviews and high-value civil fraud.

Examples of recent reported decisions include:

• Lehtimäki v Cooper [2020] UKSC 33: The leading authority on the courts’ jurisdiction over charities and the question of whether charitable trusts owe fiduciary duties (acted as first junior to Guy Morpuss QC and Professor Sarah Worthington QC).
• Albion Energy Ltd v Energy Investments Global BRL: A dispute between a Qatari oil exploration company and an energy company, currently on appeal to the Court of Appeal (instructed for the appeal, led by Guy Morpuss QC).
• Glencairn IP Holdings Ltd v Product Specialties Inc [2020] EWCA Civ 609: Landmark Court of Appeal decision on the circumstances in which a solicitors’ firm will be removed from the record when the firm has previously acted against the same opponent (instructed as sole counsel in the High Court and Court of Appeal).
• B.V. Nederlandse Van Eiprodukten v Rembrandt Enterprises Inc. [2019] EWCA Civ 596: landmark Court of Appeal authority on the test for inducement in fraudulent misrepresentation and the transferred loss doctrine (led by Guy Morpuss QC in the High Court and Court of Appeal).
• Doubell v King’s College [2020] EWHC 359: Appeal in the High Court on the circumstances in which a first instance judge’s evaluation of facts may be overturned on appeal (sole counsel).

Much of Theo’s commercial practice is advisory. Recent work has included advising

• a vaccine manufacturer on various supply contracts;
• a broadcaster on issues arising out of organised piracy;
• a global consultancy firm on the impact of Covid-19 and the force majeure clauses in its contracts;
• a TV network on the implications of the Covid-19 pandemic on its broadcast licences;
• an ultra-high net worth individual on a dispute over a film finance loan;
• a series of product-manufacturers on possible disputes with supermarket chains;
• a solicitors’ firm on whether it had breached a series of undertakings;
• a group of disaffected rail passengers on the prospects of mounting a group action in against a train operating company;
• a communications agency on the effects of the House of Lords’ Code of Conduct; and
• a leading UK recruitment firm on a series of breach of contract claims.

Theo has written the following articles on commercial law:

• ‘Causation and Quantum in Covid-19 Business Interruption Policy claims’, New Law Journal (2020)
• ‘Moving on from Bolam– the High Court applies the Montgomery v Larnarkshire test in a financial professionals case’, Solicitors Journal (November 2016)
• ‘Labour v Labour: the courts’ resolution of political disputes’, Solicitors Journal (September 2016)
• ‘Fair is foul and foul is fair’, Solicitors Journal Vol 159 no 42 (November 2015)
• ‘The proportionality test in UK law: a new ground of review or a fading exception?’, SJOL (January 2012)

Cases

Theo is building up a strong arbitration practice, with a range of claims under a variety of institutional rules, including ICC, SIAC and LCIA.

His experience includes:

• acting as first junior in a SIAC arbitration concerning matching rights in a global broadcasting contract (led by Guy Morpuss QC, ongoing)
• acting as first junior in a SIAC arbitration arising out of the Saudi-Qatari diplomatic crisis (led by Guy Morpuss QC, ongoing).
• acting as first junior in LCIA arbitration proceedings between a global telecommunications company and a competitor company set up in alleged breach of covenant.
• assisting Michael Black QC and Edward Knight in IPCO v NNPC [2014] EWHC 576 (Comm), the leading case on the enforcement of international arbitration awards in circumstances where there are allegations of fraud.

Theo is developing a specialism in sports-related commercial litigation and sports regulatory work.

He acts on behalf of several Premier League football clubs and other sporting institutions, advising on contractual issues between clubs and players, sponsorship disputes, negotiations with governing bodies, litigation with suppliers, intellectual property and image rights issues.

He also acts in claims concerning cricket, tennis, boxing, athletics and horse racing.

Current and recent cases include:

• Grant v Tottenham Hotspur FC: acting for Tottenham Hotspur in a copyright infringement claim against the club.
• New Balance v Liverpool Football Club [2019] EWHC 2837: successfully acting for Liverpool FC in high profile Commercial Court trial about whether the Club kit could be sponsored by Nike (led by Guy Morpuss QC).
• An ongoing multi-million-pound arbitration concerning football television rights and piracy (led by Guy Morpuss QC).
• Winlink Marketing v Liverpool Football Club [2020] EWHC 2271 (Comm): Acted for the successful defendant in this High Court trial concerning brokers’ contracts and commission for a sponsorship agreement (led by Robert Anderson QC).
• Farah v Diamond Mist: a passing-off dispute brought by Sir Mo Farah against a vaping company that allegedly used a likeness of him in an advert (sole counsel).
• HoneyPunch v Hill: acting for leading boxing brand “Ringside” in a trademark infringement claim in the IPEC (sole counsel).
• S v M (ongoing): a claim brought by a horseracing gambling syndicate against a commission agent in respect of several bets, including allegations of forgery and fraud.

In his advisory practice, Theo has provided assistance to several major sporting venues and institutions on the contractual problems caused by the Covid-19 pandemic, including advising:

• an EPL football club on the effect of the postponement of the 2019/20 Premier League on certain sponsorship contracts.
• a leading sports team on the impact of Covid-19 on its sponsorship contracts.
• a broadcasting rightsholder on a contractual issue with the English Premier League.
• an international sports broadcaster on a contractual dispute with a rightsholder.
• a television station on a potential dispute with a leading sports management company.

Theo is a regular contributor to:

• the New Law Review, on which he recently wrote the cover story on the rise of e-sports litigation; and
• Law In Sport, the leading sports website.

Theo’s intellectual property practice is focussed on “soft IP”: trademarks, copyright infringement, design rights and passing off.

He is currently instructed in:

• GHS v Beale & Ors, a multi-million pound database copyright infringement claim in the Chancery Division (as sole counsel).
• Beiersdorf v Aldi Stores: a trademark infringement claim in the Chancery Division (as junior to Guy Hollingworth).
• Sir Mo Farah v Diamond Mist: a passing off dispute involving the alleged use of a lookalike of Mo Farah to advertise a product.
• Corkers v BFY, an infringement and passing off claim in the IPEC concerning a brand of crisps (as sole counsel).
• Grant v Tottenham Hotspur FC: Acting on behalf of Tottenham Hotspur in the IPEC in a copyright dispute (as sole counsel).
• a SIAC arbitration concerning copyright infringement and breaches of an exclusive rights agreement (as junior to Guy Morpuss QC).
• a putative claim to declare a recording contract unenforceable as a restraint of trade/unconscionable bargain (as sole counsel).

His past experience includes the following matters:

• Mars v Aldi: A now-settled claim issued in the Chancery Division concerning unfair advantage trademark infringement (as junior to Guy Hollingworth).
• Distinctive Wholesale v Clayton Horsnell: Chancery Division claim for infringement of copyright and database rights relating to bathroom supplies (as sole counsel).
• Glencairn v Product Specialties: a trademark infringement and passing off claim concerning whisky tasting glasses (as sole counsel).
• 7Eleven v Kankesu: acting for 7Eleven in a claim for breach of a non-infringement agreement (as sole counsel).
• VoltyLab v Volta: trademark infringement in the financial services industry (as sole counsel).

In September 2019 he completed Oxford University’s Intellectual Property Law Residential Programme.

Theo has a wealth of experience in professional liability claims, having advised and acted in claims involving solicitors, auditors, accountants, surveyors and engineers.

In his professional liability practice, he acts for both claimants and defendants in cases in the county courts and the High Court. Current and recent cases include:

• Murray & Murray v HCB Accountants (2020, ongoing): a claim against a solicitor for negligent accounting advice on the purchase of a business.
• Spanakis v Waran & Co (2020, ongoing): A claim against a solicitor for conspiracy, breach of undertaking and for breach of a Quistclose trust.
• Metis Law v Armstrong Watson (2020, ongoing): a claim against a firm of accountants for allegedly negligent advice on entrepreneur’s relief.
• Fazal v Zoi Builderberg Law (2020, ongoing): a claim against a solicitor for over optimistic advice on an employment dispute.
• Stern v Seddon (2019), major set of claims arising out of a failed property development scheme in Egypt.
• Blacknell v Evans (2019): high value “lost litigation” claim against a solicitor accused of professional negligence in relation to a complex underlying personal injury claim concerning congenital hip dislocation.
• Swain v (1) Swains (2) Kirby (3) Berry [2015] EWHC 2585 (Ch) (led by Paul Mitchell QC)

Theo has considerable experience in insurance litigation, having acted for and against insurers.

He has acted in cases covering the full range of liability insurance, including D&O, employers, public, product and professional indemnity.

He has also appeared in a number of insurance fraud and misrepresentation matters, including the pursuit of fraudulent claimants.

Theo has particular experience of insurance disputes in the medical sector and in ATE insurance policies, an area that interacts with his practice in Costs Law.

The Covid-19 pandemic has led to Theo advising several clients on related insurance issues, and has written on Business Interruption claims for the New Law Journal.

Theo is listed as a rising star for costs litigation in Legal 500 2021 and is noted to have “impressed hugely with his breadth of knowledge”.

He recently acted as junior counsel to Robert Anderson QC in Winlink v Liverpool Football Club (COSTS) [2020] EWHC B1 (Comm), a rare reported High Court judgment on issue based costs orders, the interaction between budgeting and payments on account and costs sanctions.

His specialist costs work includes the following:

Solicitor/client costs

• Advising on the difference between requests for payment on account and interim statute bills under the Solicitors Act 1970.
• Acting in a high value solicitor-client claim arising out of the proper construction of a retainer.

Budgeting issues

• Advising on the correct procedure for revision of costs budgets in a High Court claim worth over £20m with budgets in the region of £1m for each party.
• Advising on the impact of Sharp v Blank [2017] EWHC 3390 (Ch) on amendments to costs budgets.
• Acting in dozens of Costs and Case Management hearings.

Detailed assessment

• Represented the receiving party in detailed assessment proceedings.
• Appearing in the SCCO to recover a success fee where a pre-April 2013 CFA had been terminated.
• Successfully appearing in the SCCO to make an application that the recovering party should recover no costs, as they had missed deadlines in the costs proceedings.

Other

• Advising on how to insulate against non-party costs orders.
• Pitching to and working with major litigation funders.
• Advising on recovery of costs after a default judgment.
• Advising on how costs can be recovered from a trustee in bankruptcy.
• Acting for the DJ Dave Lee Travis in the Crown Court in the early stages of costs proceedings following his conviction for one count of indecent assault.

Legal articles

Theo has written the following legal articles about costs:

• ‘Conditional Fee Agreements, the price of success’, Costs Lawyer, the Association of Costs Lawyers, 2018
• ‘Addressing the opportunistic use of QOCS’, Personal Injury Brief Update Journal (November 2015)
• ‘An abuse of QOCS’, Solicitors Journal Vol 159 no 26 (August 2015)