MICHAEL BOWSHER QC

QC BA (Oxon); FCIArb Chartered Arbitrator; CEDR Accredited Mediator
CALL DATE: 1985 SILK: 2006

SUMMARY

Michael Bowsher has been a member of Monckton Chambers since 2001. He has built a diverse practice based around EU and commercial law. He is involved in competition law (particularly damages claims by victims of anti-competitive conduct), regulatory challenges, commercial public law and substantial commercial disputes, particularly in construction, technology and public service sectors such as healthcare, transport, waste and utility provision.

Michael is best known for his unique practice in public procurement. Michael Bowsher QC has appeared in many of the major UK procurement cases over the last decade. He is described as "the premier counsel bar none" in procurement, "the UK's most prominent procurement silk" and "absolute dynamite" by Chambers & Partners whilst Legal 500 regards Michael as a "real authority on procurement law". He has been heavily involved in representing and advising clients in claims for damages and injunctions regarding public and utilities procurement since the regime was first established in the UK. He continues to be involved in cases at the forefront of the fast developing area. He has recently been involved, for instance, in the first case concerning the availability of the new remedy of a declaration of contract ineffectiveness.

Michael is heavily engaged with a broad range of legal and regulatory issues at EU level in his capacity as Chair of the EU law committee of the Bar. He reviews ongoing developments for the Bar and is involved in meeting and making representations to officials, parliamentarians and others. Subjects in which he is particularly closely involved at present include EU criminal law and the prospective UK opt-out, data protection, harmonisation of sales law and public procurement reform.

Key Positions and Memberships

Queen's Counsel (2006)
Called to the Bar of Northern Ireland (2000)
Called to the Bar of the Republic of Ireland (2012)
Fellow of the Chartered Institute of Arbitrators, Chartered Arbitrator
Fellow, European Law Institute
Co Chair of Task Force on Public Procurement of International Chamber of Commerce (appointed 2007); in this capacity Michael has represented the ICC as observer to international bodies such as the UNCITRAL .
Chair of the EU law Committee of the General Council of the Bar of England and Wales (appointed 2011) (also member of the General Management Council of the General Council of the Bar of England and Wales)
Member of Panel of Approved Mediators of the Technology and Construction Solicitors' Association (http://www.tecsa.org.uk/).

EXAMPLES OF RECENT LITIGATION

AG Quidnet Hounslow LLP v Mayor and Burgesses of the London Borough of Hounslow [2012] EWHC
2 Travel v Cardiff Bus [2012] CAT 19
British Telecommunications plc, Everything Everywhere & others v Competition Commission & others [2012] CAT 11
R (Unison) v NHS Wiltshire PCT & NHS Shared Business Services [2012] EWHC 624 (Admin)
Henry Brothers (Magherafelt) Limited v DENI [2011] NICA 59; [2012] EuLR 230
Alstom Transport v Eurostar International Ltd - three separate judgments: [2012] EWHC 28 (Ch), 140 ConLR 1; [2011] EWHC 1828 (Ch), [2012] EuLR 162; [2010] EWHC 2747(Ch)
Exel Europe Ltd v University Hospitals Coventry and Warwickshire NHS Trust [2010] EWHC 3332 (TCC)

COMPETITION AND SECTORAL REGULATION

Michael's competition practice has covered proceedings involving the EC Commission, CFI, OFT, CAT and Competition Commission. He has covered a wide range of sectors, but his current case load is particularly focused in the health and medical, construction, IT and transport. He is particularly busy dealing with damages claims and was lead counsel for the Claimant in the first follow on damages case in which the Claimant secured a final judgement for damages, as well as the first award of exemplary damages made by the CAT.

He also recently appeared for the Competition Commission in the successful defence of its determination regarding the price control of mobile termination rates.

Recent reported cases include

2 Travel v Cardiff Bus [2012] CAT 19
British Telecommunications plc, Everything Everywhere & others v Competition Commission & others [2012] CAT 11
Rapture TV -v- Ofcom and Others [2008] CAT 14 - CAT appeal from Ofcom determination
Healthcare at Home -v- Genzyme [2006] CAT 30 - Follow-on damages claim after Article 82 liability established against Genzyme
Prater Ltd -v- Office of Fair Trading [2006] CAT 11 - CAT appeal from OFT decision
SERE Holdings Ltd v Volkswagen Group UK Ltd [2004] All ER (D) 76

CONSTRUCTION, COMMERCIAL AND TECHNOLOGY

Michael is active in a wide range of matters, particularly in construction, information technology, communications and financial matters but also concerning sports-related issues. Michael is currently involved in a number of disputes concerning the operation of long term public sector agreements.

Michael has represented clients in well over 50 commercial arbitrations and has been appointed as arbitrator in a range of disputes; he has acted as counsel in a range of international arbitrations under ICC, LCIA and AAA rules. Some of these matters are referred to below.

Highlights in arbitration include:

Counsel in numerous arbitrations (both domestic and international) in construction and IT cases. Recent cases include an ICC arbitration in Geneva regarding construction of a power station and in a AAA arbitration regarding a software development project.
Leading counsel for an East European chemical company in a dispute with other international parties.
Appeared as counsel indisputes following construction of Karachi Airport New Terminal, sections of the Singapore Mass Rapid Transit system, the European Southern Observatory in Chile, and dams, power and petrochemical projects worldwide.
Appeared in many reported decisions regarding enforcement of construction adjudication decisions, including the first such decision - Macob v Morrison up to a decision reported on lawtel in November 2004.
Involved in a range of other dispute resolution processes including a variety of mediations.
Michael has also been involved in litigation and statutory claims for compensation covering land fill, contaminated land, waste management, sewers, pipes and drains.

EU

Michael's practice involves work in a broad range of matters involving the impact of EU law, and public law, upon commercial activities. These include matters as diverse as sectoral regulation, and the regulation of food, pesticides and pharmaceuticals.

PROCUREMENT

Michael's litigation practice in this field is second to none. He has represented many clients in injunction proceedings and claims for damages for breach of procurement rules. He has appeared in many of the major UK procurement cases over the last decade, some of which are listed below. He is also involved in many cases involving complaints to the EU Commission and has extensive experience of procurement disputes in jurisdictions outside the EU. Most recently he has advised on substantial matters affected by the Hong Kong procurement regime.

His practice also involves him in a range of associated disputes involving heavy public contract matters. He is frequently involved in commercial disputes regarding the operation of long-term arrangements such as he has particular experience also in the operation of complex commercial structures in the field, particularly the operation of public projects supported by private finance.

These matters also involve an overlap with areas such as state aid (see above) and very frequently areas such as planning and other regulatory regimes. Michael has been particularly busy in cases involving major developments throughout the UK involving complex planning and related matters. Sometimes cases involve complex issues involving EU law, state aid, procurement and planning and Michael has often had to deal with all in the same matter. Many of these cases also involve judicial review challenges on related aspects of the case.

He is awaiting judgement in a significant matter concerning the application of the General Treaty principle of transparency to development arrangements.

AG Quidnet Hounslow LLP v Mayor and Burgesses of the London Borough of Hounslow [2012] EWHC
R (Unison) v NHS Wiltshire PCT & NHS Shared Business Services [2012] EWHC 624 (Admin)
Henry Brothers (Magherafelt) Limited v DENI [2011] NICA 59; [2012] EuLR 230
Alstom Transport v Eurostar International Ltd - three separate judgments: [2012] EWHC 28 (Ch), 140 ConLR 1; [2011] EWHC 1828 (Ch), [2012] EuLR 162; [2010] EWHC 2747(Ch)
Exel Europe Ltd v University Hospitals Coventry and Warwickshire NHS Trust [2010] EWHC 3332 (TCC)
Sita UK Ltd v Greater Manchester Waste Disposal Authority [2010] 2 CMLR 48
Croft House Care Ltd v Durham CC [2010] EWHC 909 (TCC)
Community Care North East (A Partnership) v Durham CC [2010] EWHC 959 (QB)
B2Net Ltd -v- HM Treasury [2010] EWHC 51 (QB); [2010] EuLR 471
European Dynamics SA -v- HM Treasury [2009] EWHC 3419 (TCC); [2010] EuLR 397
JB Leadbitter & Co. Ltd -v- Devon County Council [2009] EWHC 930 (Ch); [2010] EuLR 61
Amaryllis Ltd -v- HM Treasury (OGCBuying Solutions) [2009] EWHC 962 (TCC); [2010] EuLR 85 & No.2 [2009] EWHC 1666 (TCC); [2010] EuLR 152
Federal Security Services Ltd -v- Chief Constable for the Police Service of Northern Ireland [2009] NICh3; [2009] EuLR 774
Henry Brothers -v- DENI [2008] NIQB 105; [2009] BLR 174 & [2008] NIQB 153; [2009] BLR 118 - High court trial concerning procurement of multi-million pound schools improvement framework
McLaughlin & Harvey Ltd -v- DFP [2008] NIQB 25, [2008] NIQB 91 & [2008] NIQB 122 - also reported at [2008] BLR 603 & [2009] BLR 104 - High court trial of procurement of £800 million public sector construction framework - appeared also in successfully resisting appeal to the Northern Ireland Court of Appeal [2011] NICA 60
McConnell Archive Storage Ltd v Belfast City Council [2008] NICh 3; [2008] EuLR 549 Procurement of contract for removal and storage of all city records during refurbishment of City Hall
Lion Apparel Systems Ltd v Firebuy Ltd [2007] EWHC 2179; [2008] EuLR 191 & [2008] EWHC 122 (Ch); [2008] EuLR 564- High court proceedings concerning national framework for procurement of firefighters' uniforms - two judgments already reported.
Rapiscan Systems Ltd v HMRC [2006] EWHC 2067 (QB) - Procurement of contract for scanning equipment at docks
BFS Food Group Ltd v Secretary of State for Defence & Purple Food Services [2006] EWHC 1513 (Ch); [2006] All ER (D) 274 (Jun) - Procurement of worldwide contract for armed forces' food
Devilbiss Medequip Ltd. v NHS Purchasing and Supply Agency [2005] EWHC 1757 (Ch); [2006] EuLR 346 - Procurement of contract for domiciliary oxygen
Denfleet International Ltd v NHS Purchasing and Supply Agency [2005] EuLR 526 - Procurement by NHS of schizophrenia medications
Harmon CFEM Facades (UK) Ltd v Corporate Officer of the House of Commons (No.2) (2000) 72 ConLR 21
Harmon CFEM Facades (UK) Ltd v Corporate Officer of the House of Commons (1999) 67 ConLR 1.

STATE AID LAW

Michael is very active in state aid law matters, advising widely on this topic - particularly in the context of major infrastructure projects and other long-term contractual arrangements. He has been involved in a number of complaints and other proceedings involving the EU Commission.

By way of example, he has acted as counsel for a local authority in successfully defending a challenge to redevelopment plans based on state aid and local government law arguments.

PUBLICATIONS AND CONFERENCES

Michael has been widely published on a range of topics in EU law, procurement law, competition law, construction and arbitration law. His published material includes the following:

Banks & Bowsher, Damages Remedy in England & Wales and Northern Ireland, in Public Procurement Law - Damages as an Effective Remedy ed. Fairgrieve & Lichere (2011)
Bowsher & John, The use (and abuse?) of framework agreements in the United Kingdom, in International Public Procurement, a Guide to Best Practice ed. Hernandez Garcia (2009)
Bowsher & Moser, Damages for breach of the EC public procurement rules in the UK [2006] PPLR 195
Bowsher, Cross-Border Effects of Judicial Determination of Article 81(2) EC (In)validity of Contract Current Competition Law vol. IV (2004) ed. Marsden & Hutchings, publisher British Institute of International and Comparative Law
Bowsher, The ECJ, transparency and procurement as an environmental policy: EVN AG & Weinstrom GmbH [2004] Int Construction Law Review 189
Bowsher, Prospects for establishing on effective tender challenge regime: enforcing rights under EC procurement law in English courts [1994] PPLR 30
Contributor of Procurement law section to 5th, 6th and 7th editions of Keating on Building Contracts
He is currently engaged to act as sole editor of and contributor to a new text book on the principles and practice of UK procurement law.

Michael speaks very frequently on various themes concerning procurement, competition and state aid law. Recent speeches to international audiences include the following.

Speaker on Issues in European IT Procurement and Impact of the European Financial Crisis on Public Procurement at "Law and Technology in the Federal Market - A Public Colloquium at the George Washington Law School, December 1, 2011
Speaker on National Champions policies in Procurement and Competition at meeting of Tianjin Lawyers Association in joint meeting held with Bar Council of England & Wales, November 2011
Chair of ICC conference in Paris on "The new EU Directive: Towards Market-Based Defence and Sensitive Security Procurement", 1 February 2011
Speaker at US - European Summer Procurement Law Institute in Germany: On International Issues in Public Procurement Law -- Ruhr-University Bochum Law School Research Institute for Procurement Law
Speaker on Possible Challenge Procedure in English courts in case of Discrimination in Defence Procurement, West Government Contracts Year in Review, February 16, 2010, Washington DC -- and spoke at the same event in the previous year on other EU procurement law issues
Speaker at the American Bar Association, 15th Annual Federal Procurement Institute, March 2009 on various EU procurement law issues
Speaker at Second Asian Competition Law & Policy Conference, Asian Competition Forum, Hong Kong (2006), "Competition Law and National Marriages: A Happy Marriage or a Clash of Incompatible Policies?"