People

Emily MacKenzie

Year of Call: 2012

Clerk: Luke Carvalho luke.carvalho@brickcourt.co.uk

Emily MacKenzie

Year of Call: 2012

Clerk: Luke Carvalho   luke.carvalho@brickcourt.co.uk

Overview

Emily's practice spans the full range of administrative, public international, commercial and EU law, with particular expertise in complex human rights and other public law claims, Francovich damages, pharmaceutical regulation and shipping. She has worked on important cases in all of these areas, including recently:

  • Platt v Isle of Wight Council, representing the Council in its appeal to the Supreme Court concerning whether an offence is committed when a parent takes a child out of school for a holiday in term time
  • R. (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, acting acted as junior to the Lord Advocate of Scotland in the seminal case concerning whether an Act of Parliament is needed before the executive can trigger Article 50
  • Micula & O'rs v Romania [2017] EWHC 31 (Comm), successfully representing Romania in commercial court proceedings in which Blair J granted an unprecedented stay of enforcement of an ICSID award because the EU Commission had decided that payment under the award would constitute unlawful State aid (as sole junior to Robert O'Donoghue)
  • Knightsbridge Leasing Ltd v Sunseeker International Ltd & Desty Marine LLP (The M.Y. Sanity), a claim  in the commercial court for substantial damages for breach of contract and negligence following the total destruction of a vessel by fire 
  • X v Secretary of State for Defence; Attorney General of New Zealand, assisting the Ministry of Defence in defending a claim brought by a foreign service person abroad for damages in respect of injuries allegedly suffered in the UK: advising on complex issues of State immunity, including whether there is yet a rule of customary international law that there is a jus cogens exception to State immunity (as junior to Amal Clooney)
  • SPL v DEFRA, a claim in the High Court for Francovich damages of over £50 million arising out of in respect of the denial of payments under the Common Agricultural Policy
  • Forge Care Homes & Others v Cardiff & Vale University Health Board & Others [2015] EWHC 601 (Admin); [2016] EWCA Civ 26, representing 21 Welsh Local Authorities as Interested Parties (as junior to Richard Gordon QC) in a case concerning the proper interpretation of section 49 of the Health and Social Care Act 2001, which delineates the respective funding responsibilities of the Welsh NHS and Local Authorities for nursing care in nursing homes. Emily will act in the Supreme Court hearing listed in April 2017
  • Western Sahara Campaign UK v HMRC; DEFRA, acting for COMADER (an organisation representing agricultural producers in Morocco) in a successful application to become an interested party in a claim seeking to invalidate an EU-Morocco free trade agreement because it does not respect the right to self-determination of the Saharawi people 

Before coming to the Bar, Emily taught European Human Rights Law and Roman Law part-time at Lincoln College, Oxford. This was after completing an LL.M at New York University School of Law, where she specialised in public international law, international human rights law and counter terrorism. During her undergraduate degree, Emily also spent a year studying French Law at Université Paris II Panthéon-Assas.

From January to August 2014 Emily worked as an international law fellow at the American Society of International Law in Washington DC, where she was involved in a wide variety of international law issues, both public and private.

In 2015, Emily undertook a part-time secondment in pharmaceutical regulation for 6 months at Olswang LLP, during which she worked on several different cases for a major generic pharmaceutical company.

practice areas

Public Law

Emily practices a full range of administrative and public law, including civil liberties, public international law, human rights and regulatory work. Recently, she has acted as junior to the Lord Advocate of Scotland in the seminal Article 50 case R. (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 and as sole junior to Martin Chamberlain QC in the term-time holiday case in the Supreme Court Platt v Isle of Wight.

Emily is also the author of chapters on human rights in land law and the nature of ownership in An Introduction to Land Law, Simon Gardner & Emily MacKenzie (4th Ed. Hart, 2015).

Her notable instructions include:

Administrative law and regulatory work

  • Platt v Isle of Wight Council, representing the Council in its appeal to the Supreme Court concerning whether an offence is committed when a parent takes a child out of school for a holiday in term time
  • R. (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, acting acted as junior to the Lord Advocate of Scotland in the seminal case concerning whether an Act of Parliament is needed before the executive can trigger Article 50
  • Forge Care Homes & Others v Cardiff & Vale University Health Board & Others [2015] EWHC 601 (Admin); [2016] EWCA Civ 26, representing 21 Welsh Local Authorities as Interested Parties (as junior to Richard Gordon QC) in a case concerning the proper interpretation of section 49 of the Health and Social Care Act 2001, which delineates the respective funding responsibilities of the Welsh NHS and Local Authorities for nursing care in nursing homes. Emily will act in the Supreme Court hearing listed in April 2017
  • R(A) v Director of Public Prosecutions, an urgent claim for an injunction seeking the DPP’s consent to an application for a private arrest warrant in respect of a person suspected of complicity in war crimes and an order preventing that person from leaving the jurisdiction (as sole junior to Richard Gordon QC)
  • Acting as counsel, unled, for the regulator in disciplinary panel proceedings brought against members of the Renewable Energy Consumer Code and in appeals from those proceedings
  • Acting pro bono (unled) for a childminder in her appeal to the First Tier Tribunal (Education and Social Care) against Ofsted’s decision to cancel her registration as a childminder
  • Advising pharmaceutical companies in relation to potential judicial review proceedings in relation to the Cancer Drugs Fund and NICE guidelines
  • Alvarado v Secretary of State for Defence (Court of Appeal of Gibraltar), a crown immunity case which held that the Gibraltarian courts do not have jurisdiction to hear claims against the British Ministry of Defence (as junior to Martin Chamberlain QC)
  • Resolution Chemicals v Lundbeck [2013] EWCA Civ 1515, appeal against Arnold J’s decision not to recuse himself  from hearing the underlying patent action on the grounds of apparent bias alleged to arise as a result of his association whilst a student with one of the party’s expert witnesses (as sole junior to Richard Gordon QC)

Human rights

  • Versloot Dredging BV v HDI Gerling Industrie Versicherung AG [2016] UKSC 45, assisting with the arguments made in the Supreme Court under Article 1 of Protocol 1 to the European Convention on Human Rights in a case about whether the rule by which a fraudulent insurance claim precludes recovery under the policy applies to fraudulent means or devices (assisting Richard Lord QC and Victoria Wakefield)
  • Asif et al v Secretary of State for of Defence, successfully representing the Ministory of Defence in a human rights claim brought in the Senior Judge’s Court of the Sovereign Base Area of Akrotiri and Dhekelia and againin the Court of Appeal, now on appeal to the Privy Council (as junior to Martin Chamberlain QC)
  • Commissioner of Police of the Metropolis v AK, resisting in the Magistrates’ Court (unled) an application to retain the passport of a British girl seized upon suspicion that she was attempting to travel to Syria to join ISIS
  • Being part of the legal team advising the Freedom and Justice Party of Egypt in relation to an internal UK government review (with Richard Gordon QC)
  • Advising an action group for disability in relation to political and legal strategy for improving the Access to Work scheme (as junior to Victoria Wakefield)

Public and Private International Law

  • Micula & O'rs v Romania [2017] EWHC 31 (Comm), successfully representing Romania in commercial court proceedings in which Blair J granted an unprecedented stay of enforcement of an ICSID award because the EU Commission had decided that payment under the award would constitute unlawful State aid (as sole junior to Robert O'Donoghue)
  • X v Secretary of State for Defence; Attorney General of New Zealand, assisting the Ministry of Defence in defending a claim brought by a foreign service person abroad for damages in respect of injuries allegedly suffered in the UK: advising on complex issues of State immunity, including whether there is yet a rule of customary international law that there is a jus cogens exception to State immunity (as junior to Amal Clooney)
  • Western Sahara Campaign UK v HMRC; DEFRA, acting for COMADER (an organisation representing agricultural producers in Morocco) in a successful application to become an interested party in a claim seeking to invalidate an EU-Morocco free trade agreement because it does not respect the right to self-determination of the Saharawi people 
  • R(A) v Director of Public Prosecutions, an urgent claim for an injunction seeking the DPP’s consent to an application for a private arrest warrant in respect of a person suspected of complicity in war crimes and an order preventing that person from leaving the jurisdiction (as sole junior to Richard Gordon QC)
  • Being part of the legal team advising the Freedom and Justice Party of Egypt in relation to an internal UK government review.
  • International Law Fellow at the American Society of International Law (ASIL) in Washington DC 2014. Whilst there, Emily had the opportunity to become involved in a wide variety of work involving issues of both public and private international law. In particular, she:
    • researched for and wrote the blog International Law in Brief
    • helped to coordinate the 2014 Joint Annual Meeting between ASIL and the International Law Association
    • was an observer at roundtable meetings of the International Committee of the Red Cross
    • assisted in editing a guide to international law for the federal judiciary
    • published on a range of topics in the publications International Legal Materials and ASIL Insights
    • organised and convened a public speaker event on the protection of individual and collective rights in investment treaty arbitration (see video of event at https://www.asil.org/event/protection-individual-and-collective-rights-investment-treaty-arbitration)

Commercial

Emily has a diverse commercial practice, with particular expertise in shipping and cases involving questions of international law. She recently acted for Romania in the important Commercial Court ICSID case Micula & O'rs v Romania [2017] EWHC 31 (Comm) and is acting for the owners in the Commercial Court claim Knightsbridge Leasing Ltd v Sunseeker International Ltd & Desty Marine LLP (The M.Y. Sanity).

Her notable recent instructions include:

  • Micula & O'rs v Romania [2017] EWHC 31 (Comm), successfully representing Romania in commercial court proceedings in which Blair J granted an unprecedented stay of enforcement of an ICSID award because the EU Commission had decided that payment under the award would constitute unlawful State aid (as sole junior to Robert O'Donoghue)
  • Knightsbridge Leasing Ltd v Sunseeker International Ltd & Desty Marine LLP (The M.Y. Sanity), a claim in the commercial court for substantial damages for breach of contract and negligence following the total destruction of a vessel by fire (acting for owners, as sole junior to Richard Lord QC)
  • Mohamed Ali Saleh al Hashedi & Bro v Crossbow Cement S.A., successfully acted unled for the Respondent to a commercial court appeal under section 69 of the Arbitration Act 1996 on the question of whether lost demurrage can be claimed as damages following a repudiatory breach of contact
  • Cotchford Secretary Ltd v X5 Retail Group NV, a claim in the Commercial Court for substantial damages for breach of a contract concerning Russian supermarket leases (as sole junior to Tim Lord QC)
  • Kairos Shipping Ltd v Enka & Co; Axa Insurance BSC “Atlantik Confidence” [2016] EWHC 2412, assisting with legal research that contributed to this landmark judgment on scuttling
  • Acting for the owners in an LMAA shipping arbitration involving a substantial claim for damages following a fire on board (as sole junior to Richard Lord QC)
  • Drafting statements of case for LMAA shipping arbitrations in disputes involving issues of laytime and demurrage (unled)
  • International Law Fellow at the American Society of International Law (ASIL) 2014. Whilst there, Emily had the opportunity to become involved in a range of academic work surrounding international arbitration, which included researching and reporting recent cases on the blog International Law in Brief, and coordinating speaker sessions on the future of international arbitration at the 2014 joint annual meeting between ASIL and the International Law Association. Emily also organised and convened a public speaker event on the protection of individual and collective rights in investment treaty arbitration (see video of event at https://www.asil.org/event/protection-individual-and-collective-rights-investment-treaty-arbitration).

EU/Competition

Emily has a dynamic and varied practice in EU law and is frequently led by leaders in the field, including David Anderson QC, Jemima Stratford QC and Kelyn Bacon QC. She has expertise in the pharmaceutical sector following a secondment to Olswang LLP and is currently instructed in several proposed judicial reviews of NHS England. She has also had success in the field of Francovich damages, having acted as sole junior to Andrew Henshaw QC in the successful claim for these in the live animal exports case of Barco de Vapor v Thanet DC [2014] EWHC 490 (Ch), and is currently involved in the substantial Francovich claim in SPL v DEFRA regarding a decision not to fund under the common agricultural policy.

Pharmaceutical regulation

Emily has considerable experience in pharmaceutical regulation and is instructed for clients in both the generic and innovative sector. In 2015, Emily undertook a part-time secondment in pharmaceutical regulation for 6 months at Olswang LLP, during which she worked on several different cases for a major generic pharmaceutical company. Her role included drafting submissions to foreign national courts, drafting requests to the CJEU for preliminary rulings and assisting with the conduct of litigation in the CJEU, UK courts and foreign courts.

Her notable instructions include:

  • Teva v EMA, Case C-138/15 P (appeal to the Court of Justice from Case T-140/12), on the interpretation of the orphan regulation (as sole junior to Kelyn Bacon QC)
  • Teva v Novartis, a case in the UK Patents Court dealing with the validity of an SPC extension and the interrelation between the rewards granted under the paediatric and orphan regulations (assisting junior)
  • A proposed judicial review between a major innovative pharmaceutical company and NHS England concerning the implementation of NICE Guidelines (led by Jemima Stratford QC)
  • A proposed judicial review between a major innovative pharmaceutical company and NHS England concerning the decision of the Cancer Drugs Fund Panel (led by Jemima Stratford QC)
  • A proposed judicial review concerning a decision of NICE to publish guidelines relating to the client’s new product (led by Jemima Stratford QC)
  • Advising a major innovative pharmaceutical company and assisting with the drafting of a defence based on abuse of dominance (led by Jemima Stratford QC)

Other EU Law

  • Micula & O'rs v Romania [2017] EWHC 31 (Comm), successfully representing Romania in commercial court proceedings in which Blair J granted an unprecedented stay of enforcement of an ICSID award because the EU Commission had decided that payment under the award would constitute unlawful State aid (as sole junior to Robert O'Donoghue)
  • SPL v DEFRA, a claim in the High Court for Francovich damages of over £50 million arising out of in respect of the denial of payments under the Common Agricultural Policy: trial listed for June-July 2017 (as junior to Aidan Robertson QC and Sarah Abram) 
  • Acting in a confidential follow-on damages claim following a Commission Decision identifying a European-wide cartel (led by Mark Brealey QC)
  • London Executive Aviation v the Environment Agency, successfully appealing a Civil Penalty Notice issued under the Greenhouse Gas Emissions Trading Scheme Regulations in respect of a failure by an airline to submit carbon allowances on time, relying on the defence of force majeure
  • Advising on competition issues in respect of access to major sporting platforms (led by Robert O'Donogue)
  • Advising in relation to the EU law implications of proposed restrictions on online gambling (led by David Anderson QC)
  • Assisting with pleadings in relation to damages claims arising out of the MasterCard interchange fee litigation (led by Mark Hoskins QC And Tony Singla)
  • Acting pro bono for the Aire Centre in a case in the First Tier Social Security Tribunal raising substantial points of EU law (unled)
  • Barco de Vapor v Thanet District Council [2014] EWHC 490 (Ch), a successful claim establishing Francovich liability following a ban on transporting live animals through Ramsgate Port (as sole junior to Andrew Henshaw QC)
  • Stott v Thomas Cook, instructed by the Equality and Human Rights Commission in the Supreme Court on behalf of a disabled claimant seeking damages for injury to feelings during the course of flight. The case addressed the interaction between EU discrimination law and the Montreal Convention (as a junior to Martin Chamberlain QC and Robin Allen QC)

Publications

A Right to Hope? Extradition to the U.S. and Life Without Parole, American Society of International Law Insights (28 September 2015) (available here)

An Introduction to Land Law, Simon Gardner with Emily MacKenzie (4thEd. Hart, 2014, previously 3rd Ed. 2012) - Emily co-wrote the chapters on Human Rights in Land Law and Ownership

Successful challenge to levels of asylum support – R (on the application of Refugee Action) v Home Secretary, U.K. Constitutional Law Blog (8th May 2014) (available at:  http://ukconstitutionallaw.org/

The Lawfulness of Detention by British Forces in Afghanistan – Serdar Mohammed v Ministry of Defence,U.K. Constitutional Law Blog (2nd June 2014) (available at: http://ukconstitutionallaw.org/).

Introductory Note to Frederic Hay v. CréditAgricoleMutuelle Charente-Maritime et Des Deux-Sevres, International Legal Materials (2014)

International Aspects of Asylum Law in the Supreme Court of the United Kingdom, ASIL Insights, Vol.18, Issue 24 (29 October 2014) (available here)

Qualifications

Education and Employment

2014                International Law Fellow, American Society of International Law (6 months)

2013-present   Tenant, Brick Court Chambers

2012-13           Pupillage, Brick Court Chambers

2011-12           BPTC, BPP Law School (Outstanding, Top Student Award)

2011-12           Non-stipendiary Lecturer in law, Lincoln College, Oxford

2010-11           LL.M International Legal Studies, New York University School of Law (GPA 3.74)

2010-11           Graduate Editor of the NYU Journal of International Law and Politics

2006-10           BA (Hons) Law with French Law, Lincoln College, Oxford (1st class, 2nd in year)

2008-09           Certificat Supérieur de Droit, Université Paris II Panthéon-Assas  (mention bien)

Scholarships and prizes

2014    International Law Fellowship, American Society of International Law
2011    Inner Temple major scholarship
2010    NYU Dean's Graduate Award
2010    Wronker Prize for Jurisprudence (Oxford)
2010    Gibbs book award for outstanding performance in Contract, Tort, Land and Trusts (Oxford)
2010    Anne-Marie Drummond Prize for the best performance in humanities final honour school (Lincoln College)
2009    Gluckstein Law Scholarship (Lincoln College)
2008    Lovell's prize to second years at Lincoln College
2007    Sweet and Maxwell prize for best overall performance in Oxford Law Moderations

Memberships

ALBA, COMBAR, ILA, ASIL, BEG, JUSTICE


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