People

Malcolm Birdling

Year of Call: 2011 (England & Wales); 2005 (New Zealand)

Email: malcolm.birdling@brickcourt.co.uk

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

Malcolm Birdling

Year of Call: 2011 (England & Wales); 2005 (New Zealand)

Email: malcolm.birdling@brickcourt.co.uk

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

"His availability, knowledge and experience are invaluable and, on a personal level, his demeanour and approachability ensure excellent teamwork." "Offers extensive advocacy experience and is particularly adept at handling complex human rights and administrative and public law cases."
- Chambers & Partners 2016

"An exceptional talent."
- The Legal 500 2016

Overview

Malcolm is a junior barrister with a litigation practice specialising in all aspects of public, administrative, EU and commercial dispute resolution.

Recent highlights of Malcolm's practice include:

  • Acting for the claimant in R (Holmcroft Properties Ltd) v KPMG LLP [2016] EWHC 323 (Admin) (one of “The Lawyer’s” top 20 cases of 2016).
  • J Sainsbury’s Ltd v Independent Reviewer of Advertising Standards Authority Adjudications (Tesco Supermarkets Ltd, Interested Party) [2014] EWHC 3680 (Admin): acting for Interested Party in successfully resisting a challenge to the lawfulness of comparative price advertising.
  • Bimini Blue Coalition Ltd v Prime Minister of The Bahamas & Ors [2014] UKPC 23: acting for successful Respondent before the Judicial Committee of the Privy Council in this appeal against the refusal of interim relief to restrain development works.
  • Appearing before the Supreme Court, Court of Appeal and Divisional Court in R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] 1 WLR 2697; [2014] 4 All ER 843; [2014] HRLR 21; (2014) Times, July 25.
  • Appearing before the Judicial Committee of the Privy Council in three significant historical miscarriage of justice appeals: Taylor v R [2013] 1 WLR 1144; R v Lundy [2013] UKPC 28, (2013) Times, December 10, [2014] 2 NZLR 273 and R v Pora [2015] UKPC 9.     
  • Successfully appearing unled before the Court of Appeal in British Gas Trading Ltd v Oak Cash and Carry [2016] EWCA Civ 153; [2016] CP Rep 27; [2016] 2 Costs LO 289. 

Malcolm is recommended in both of the leading independent legal directories and is a member of the Attorney General's C Panel of Counsel.

Prior to transferring to the English bar, Malcolm qualified as an English solicitor and at the New Zealand bar, including a period as judicial assistant in the New Zealand Court of Appeal, and studied law at the University of Oxford, where he was from 2008 to 2011 a Research Fellow and Tutor in Law at Keble College, specialising in Constitutional and European Union law.  

practice areas

Public Law

Malcolm is an experienced public lawyer with expertise across a broad range of subject areas including commercial judicial review, public international law, education, financial regulation, media and advertising, immigration, information law, inquiries, pharmaceutical and food regulation and civil liberties and human rights. Malcolm has particular expertise in cases involving the intersection of criminal justice and public law. He is currently the Secretary of the Constitutional and Administrative Law Bar Association and a member of the Attorney General's C Panel of Counsel.

Examples of his recent experience and instructions include:

  • Acting for the claimant in R (Holmcroft Properties Ltd) v KPMG LLP [2016] EWHC 323 (Admin) (one of “The Lawyer’s” top 20 cases of 2016) a judicial review challenge to the process followed by KPMG, an “independent reviewer” appointed to oversee the exercise of a redress scheme operated by Barclays Bank and overseen by the Financial Conduct Authority in respect of mis-sold Interest Rate Hedging Products (‘IRHPs’).
  • R(IS) v Director of Legal Aid Casework & Lord Chancellor [2016] EWCA Civ 464. Acting (led by Martin Chamberlain QC) in this successful defence of the legality of the Exceptional Case Funding (ECF) scheme for the administration of legal aid.
  • R (Collins) v Secretary of State for Justice [2016] 2 WLR 1303; [2016] 3 All ER 490; Times, February 23, 2016 concerning the circumstances in which the so called “Householder Defence” law introduced by the Crime and Courts Act 2013 affords a defence to those who use disproportionate force against people believed to be intruders in their home, and the compatibility of this law with the European Convention on Human Rights (led by Paul Bowen QC).  
  • R (BD) v Director of Legal Aid Casework [2016] EWCA Civ 733 concerning relevant principles on assessment of costs in compromised judicial review proceedings (led by Guy Mansfield QC). 
  • R(Faulkner) v Lord Chancellor [2016] EWHC 717 (Admin); [2016] 2 Costs LR 237 concerning extent to which damages for State detention pursuant to the European Convention on Human Rights are subject to the statutory charge applied by the legal aid regime (led by Paul Nicholls QC). 
  • R (RJ) v Director of Legal Aid Casework [2016] EWHC 645 (Admin) concerning the extent to which interested persons at inquests may benefit from the procedural protections of Article 6 of the European Convention on Human Rights.   
  • R (Barda) v Mayor of London [2016] 4 WLR 20. Malcolm is instructed by Liberty (led by Marie Demetriou QC) in this case which concerns alleged breaches of the right to protest during demonstrations by the "Occupy Democracy" movement in the lead up to the 2015 general election.  
  • R (Letts) v Lord Chancellor (Equality and Human Rights Commission Intervening) [2015] EWHC 402 (Admin); [2015] 1 W.L.R. 4497; [2016] 2 All E.R. 968; [2015] 2 Costs L.R. 217; [2015] Inquest L.R. 15 Defending challenge to the lawfulness of guidance regarding the circumstances in which Article 2 of the European Convention on Human Rights requires public funding for representation at inquests (led by Martin Chamberlain QC). 
  • R (Gudanaviciene & Ors) v Lord Chancellor & Director of Legal Aid Casework [2014] EWCA Civ 1622  [2015] 1 W.L.R. 2247; [2015] 3 All E.R. 827 Acting for Defendants (led by Martin Chamberlain QC) in these six joined applications for judicial review. These were intended as test cases regarding the circumstances in which legal aid must be made available in immigration cases and were heard in the Administrative Court over five days and by the Court of Appeal over four days.
  • R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs - Appearing (led by Martin Chamberlain QC) before the Supreme Court (reported at [2014] 1 WLR 2697), Court of Appeal (reported at [2013] 1 WLR 2938) and Administrative Court ([2013] EWHC 168 (Admin)) in this case, which concerned whether Mrs Sandiford, a British National facing the death penalty in Indonesia had an enforceable EU, ECHR or domestic law right to legal assistance. 
  • J Sainsbury’s Ltd v Independent Reviewer of Advertising Standards Authority Adjudications (Tesco Supermarkets Ltd, Interested Party) [2014] EWHC 3680 (Admin) - Appearing for the interested party (led by David Anderson QC) in this judicial review claim concerning the application of Directive 2006/114/EC concerning misleading and comparative advertising and Directive 2005/29/EC on unfair business-to-consumer commercial practices.
  • Bimini Blue Coalition Ltd v Prime Minister of The Bahamas & Ors [2014] UKPC 23 - Appearing (led by Richard Gordon QC) before the Judicial Committee of the Privy Council in this appeal involving an appeal against the refusal of interim relief in judicial review proceedings to restrain development works, the legality of which was the subject of the underlying proceedings.
  • R (Pressbof) v Secretary of State for Culture, Media and Sport & Ors [2014] EWCA Civ 965 - Acting for the Claimants in this challenge to the 2013 Royal Charter for Press Regulation (led by Richard Gordon QC).
  • Acting as junior counsel to the ‘Pollard Review', chaired by former Head of Sky News Nick Pollard into matters surrounding a dropped Newsnight investigation which featured allegations of sexual abuse by Jimmy Savile.
  • Islam v LCA Business School & Anglia Ruskin University (2014, Administrative Court) - Appearing unled for the Defendant, opposing an application for permission to bring judicial review proceedings, and for interim relief, in respect of a decision to exclude a student.
  • To defend a substantial Frankovich damages claim concerning financial regulation pending before the Commercial Court (led by Andrew Henshaw QC).
  • To advise and assist the Financial Services Authority (now the Financial Conduct Authority) on the consequences of the Financial Services Act 2012.  
  • Appearing before the First Tier Tribunal and Upper Tribunal in a large number of immigration and asylum cases across a range of areas (including Asylum appeals, PBS appeals , ECO refusals and judicial review applications before the Upper Tribunal).  
  • R v Barton (James) [2014] EWCA Crim 1691 – Appearing pro bono at the renewed hearing of this application for permission to appeal against the imposition (some years ago) of a recommendation for deportation following a criminal conviction in circumstances where the Appellant had subsequently been diagnosed as suffering from a lifelong learning disability affecting his ability to plead.
  • To advise the Office of Fair Trading on the scope of their obligations in response to several Subject Access Requests, brought under the Data Protection Act 1998.
  • To draft submissions on behalf of the Information Commissioner's Office in Miller v Information Commissioner and Financial Reporting Council (EA/2014/0113).
  • R v Lundy [2013] UKPC 28; (2013) Times, December 10; [2014] 2 NZLR 273 - Appearing as sole junior counsel for the successful appellant in this historical miscarriage of justice case from New Zealand which was heard by the Judicial Committee of the Privy Council over three days. Malcolm continues to act as junior counsel in Mr Lundy’s impending re-trial before the High Court of New Zealand.
  • Taylor v R [2013] 1 WLR 1144 - Appearing pro bono for the appellant before the Judicial Committee of the Privy Council in this historical miscarriage of justice appeal from Jamaica.
  • R v Pora [2015] UKPC 9; [2016] 1 Cr. App. R. 3; [2015] Crim. L.R. 884; Times, April 20, 2015 - Appearing as junior counsel for the Appellant in this historical miscarriage of justice case from New Zealand which was heard by the Board over two days in early November 2014.

Other Experience

Malcolm is a former fellow of Keble College, University of Oxford, where he taught Constitutional and European Union law. While working as an academic, Malcolm assisted with a number of public law cases, including Barlow v the Queen [2009] UKPC 30 (regarding the Privy Council's prerogative jurisdiction to hear historical appeals from New Zealand) ; FH (Bangladesh) v Secretary of State for the Home Department [2009] EWCA Civ 385 (successful appeal to the Court of Appeal on grounds of delay in considering application for leave to remain on human rights grounds) and Dore v Leicestershire County Council [2010] EWHC 34 (Ch). 

Malcolm was appointed in 2003 by the New Zealand Human Rights Commission to a National Advisory Council overseeing the development of a national plan of action for human rights, which was published in 2006. He has co-authored a number of reports, including on barriers to claims for human rights abuses in the Democratic Republic of Congo for United Nations Special Representative John Ruggie, and on remedies under human rights legislation for an Australian government inquiry. While an academic, he provided legal research assistance to Hon Anthony Ford, then Chief Justice of Tonga.

Commercial

Malcolm practices in all areas of commercial dispute resolution. Examples of his recent experience and instructions include:

- Successfully appearing unled before the Court of Appeal in British Gas Trading Ltd v Oak Cash and Carry [2016] EWCA Civ 153; [2016] CP Rep 27; [2016] 2 Costs LO 289. The decision below, where Malcolm also appeared unled is reported at [2015] 1 All ER (Comm) 1000 and [2014] 6 Costs L.R. 1122.

- Bimini Blue Coalition Ltd v Prime Minister of The Bahamas & Ors [2014] UKPC 23 - Appearing (led by Richard Gordon QC) before the Judicial Committee of the Privy Council in this appeal involving an appeal against the refusal of interim relief in judicial review proceedings to restrain development works, the legality of which was the subject of the underlying proceedings.

- Acting as sole junior counsel for the Claimants (led by Jonathan Hirst QC) in Hong Kong seated international arbitration relating to a dispute arising under a Directors’ and Officers’ liability insurance policy.

- Watson v Sadiq & Anor [2013] EWCA Civ 822 – Appeal to Court of Appeal concerning whether a settlement contained in a Tomlin Order may be set aside on the basis that trial judge ‘entered the arena’ and exerted undue and inappropriate pressure on the Claimant to enter into a settlement agreement.

-  Appearing unled for Claimant in application for ex-parte freezing injunction in case of suspected pension fund fraud. The injunction was granted following an urgent telephone hearing before Carr J, and made final at the interparty return hearing before Burton J.

-  Appearing unled in Queen’s Bench Division for successful Defendant to application for committal for contempt of court following alleged failure to comply with terms of freezing injunction.

- Acting as sole junior to Tom Adam QC throughout the preparation for the expedited trial of an international commercial dispute in the Chancery Division, which ultimately settled immediately prior to trial. 

Malcolm is a member of the Commercial Bar Association.

EU/Competition

Malcolm is a co-author of Competition Law: General Principles in Vaughan and Robertson's Encyclopaedia of EU Law (Oxford University Press, 2014) and is regularly instructed in a range of EU and competition law matters. Examples of his recent experience and instructions include:

  • Merck Sharp & Dohme Corp v Comptroller-General of Patents, Designs and Trade Marks [2016] EWHC 1896 (Pat). Acting (led by Nicholas Saunders) in this significant case concerning the correct interpretation of the supplementary protection certificate regulation. A reference to the Court of Justice of the European Union is pending. 
  • T-80/16 Shire Pharmaceuticals Ireland v EMA (ongoing).
  • J Sainsbury’s Ltd v Independent Reviewer of Advertising Standards Authority Adjudications (Tesco Supermarkets Ltd, Interested Party) [2014] EWHC 3680 (Admin) - Appearing for the interested party (led by David Anderson QC) in this judicial review claim concerning the application of Directive 2006/114/EC concerning misleading and comparative advertising and Directive 2005/29/EC on unfair business-to-consumer commercial practices.
  • R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA Civ 581 and [2013] EWHC 168 (Admin) - Appearing for the Defendant in this claim which considered the scope of application of the European Charter of Fundamental Rights and the status of former ‘third pillar’ measures in UK law (led by Martin Chamberlain QC).
  • WH Newson Holdings Ltd & Ors v IMI & Ors - Acting (led by Daniel Jowell QC) for Third Defendant (also a Part 20 Defendant) in this follow on damages claim following the European Commission’s decision regarding the existence of a cartel between copper fittings manufacturers.
  • To defend a substantial Frankovich damages claim concerning financial regulation pending before the Commercial Court (led by Andrew Henshaw QC).
  • Malcolm’s recent unled experience includes successfully obtaining summary judgment for the Claimant in an international franchise dispute involving alleged violations of Articles 101 and 102 TFEU.

Publications

  • Co-Author, Competition Law: General Principles in Vaughan and Robertson's Encyclopaedia of EU Law (Oxford University Press, 2014).
  • "Correcting Miscarriages of Justice" New Zealand Law Journal (2013) p413ff.
  • "Correction of Miscarriages of Justice in New Zealand and England" (DPhil thesis, University of Oxford)
  • "Delays and Stays" New Zealand Law Journal (2009), p253 ff (Co-Author with Zannah Johnston, University of Toronto).
  • "Self Incrimination comes to Strasbourg" International Journal of Evidence & Proof (Vol 12, 2008), p58 ff.
  • "Filtering and the International System: A Question of Commitment" in Access Denied: The Practice and Policy of Global Internet Filtering (MIT Press, 2008) (Co-Author with Mary Rundle, Stanford University).
  • "Healing the Past or Harming the Future? Large Natural Groupings and the Waitangi Settlement Process" New Zealand Journal of Public and International Law (Vol 2, No 2 2004), p259 ff.
  • Making Sense of the Foreshore and Seabed (Wellington, 2004) (Co-Author with Tom Bennion and Rebecca Paton).

Career & Qualifications

  • Doctor of Philosophy in Law, University of Oxford
  • Master of Philosophy in Law, University of Oxford
  • Bachelor of Civil Law (Distinction), University of Oxford
  • Bachelor of Arts in Political Science / Bachelor of Laws (1st), Victoria University of Wellington
  • Barrister (Inner Temple) Called 2011
  • Barrister (New Zealand) Called 2005
  • Solicitor of the Senior Courts of England and Wales (Non-Practising)
  • Overseas Scholarship, St Catherine's College, University of Oxford (2008)
  • Sir Rupert Cross Prize for the Law of Evidence, University of Oxford (2007)
  • Cleary Memorial Award, New Zealand Law Society (2006)
  • Rhodes Scholarship (2005)
  • Quentin Baxter Prize for International Law, Victoria University of Wellington (2003)
  • Student Trust Scholarship, Victoria University of Wellington (2003)
  • Mario Patrono Scholarship, Victoria University of Wellington (2000)
  • Faculty of Law Prize, Victoria University of Wellington (1999)

Directory Quotes

  • "His availability, knowledge and experience are invaluable and, on a personal level, his demeanour and approachability ensure excellent teamwork." (Chambers & Partners 2016)
  • "Offers extensive advocacy experience and is particularly adept at handling complex human rights and administrative and public law cases." (Chambers & Partners 2016)
  • "An exceptional talent." (Legal 500 2016)
  • "On top of both the factual evidence and the law." (Legal 500 2015)

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