Duncan Sinclair

"Good at thinking on his feet.”  The Legal 500

Duncan Sinclair acts across a broad range of matters, with a particular specialism in regulatory decisions.

Areas covered

• Business and human rights
• Consultation
• Equalities
• EU Law
• Healthcare
• Inquiries
• Local government
• Procurement
• Regulation

Cases of note

• R. (EO.N Next) v Gas and Electricity Markets Authority [2023] EWHC 2891 (Admin) - Duncan acted for the Claimant in this successful judicial review of an Ofgem (GEMA) decision relating to the correct interpretation of standard licence conditions relating to appointments of the Claimant as ‘Supplier of Last Resort’ during the Energy Crisis. The case also raised issues as to the potential scope of a legitimate expectation and irrationality.
• R. (on the application of Gravis Solar 1 Ltd and ors) v Gas and Electricity Markets Authority [2021] EWHC 490 (Admin) - Duncan acted for the claimants in this judicial review which established that the regulator had interfered with possessions of a solar farm such that A1P1 of the Human Rights Act 1998 was engaged. The case raised issues of proportionality and the status of companies as a ‘victim’.
  Whilst the result of the judgment turned ultimately on the judge’s assessment of fraud, the matter is one example of some eight disputes with Ofgem in which Duncan had achieved a successful result for a number of clients, including a change in the regulator’s ‘minded-to’ positions affecting accreditations.
• Community R4C Ltd v Gloucestershire CC [2020] EWHC 1803 (TCC) - In this public procurement dispute, Duncan acted for a community common interest company and established as a preliminary issue that time had not started running for some two years due to a long period of deliberate obfuscation by the county council in respect of its largest ever (over £600m) project for an energy from waste facility.
• Wood Boilers LLP v Gas and Electricity Markets Authority [2020] EWHC 3576 (admin) - At a successful permission stage renewal for a judicial review, Duncan acted for the claimants in obtaining permission to proceed with a rolled up hearing to trial of the issues including whether a legitimate expectation (a possession under A1P1 under the Human Rights Act 1998 (A1P1)) could defeat a provision of secondary legislation or alternatively the relevant secondary legislation must be read so as to ensure compliance.
  Mr Justice Fordham opined that it was arguable (the applicable test) and even “strongly arguable” that secondary legislation must follow the primary legislation – in this instance the Human Rights Act 1998 – in the event of conflict.
  The case was then settled before final hearing.
• Npower Direct Ltd v GEMA (CMA intervening) [2018] EWHC 3576 (admin) - Duncan acted for the claimant in this complex and expedited judicial review (following a contested order in the TCC) examining the duty to consult and provide reasons and proportionality in imposing a direction under licence conditions.
• R. (on the application of Oxford Aviation Services) v Secretary of State for Defence and the Civil Aviation Authority [2015] EWHC 24 (Admin) - In this judicial review, Duncan acted for the claimants in establishing the boundaries of and considerations relevant to the regulation of RAF airports for civil aircraft (potentially distorting competition and leading to unequal regulatory/safety criteria).
• R. (on the application of Lumsdon) v Legal Services Board [2014] EWCA Civ 1276 - Duncan acted for the successful defendant in this judicial review and then before the Court of Appeal in a case with some 10 grounds of claim under public law, including irrationality, proportionality and alleged failures to take into account or understand relevant facts and law.
• R. (on the application of HomeSun and Friends of the Earth) v Secretary of State for Energy and Climate Change [2012] EWCA Civ 28 - Duncan acted for a claimant in this successful expedited judicial review and its defence in the Court of Appeal. The ‘target’ was a consultation (not a final decision) with the obvious and intended effect on the claimants. This success led to several further cases for damages under A1P1 (including Breyer in which Duncan acted for an interested party).​​

“Highly recommended by market sources, and is praised for his commercial bent.”  Chambers and Partners 2020

Duncan’s practice in this fields includes (typically energy) contractual disputes, public procurement, and competition law. Duncan is a co-author of Butterworth’s Competition Law (loose-leaf) and regular contributor to leading publications.

Areas covered

• Commercial contracts
• Competition
• Energy

Cases of note

• Community R4C Ltd v Gloucestershire CC [2020] EWHC 1803 (TCC) - In this public procurement dispute, Duncan acted for a community common interest company and established as a preliminary issue that time had not started running for some two years due to a long period of deliberate obfuscation by the county council in respect of its largest ever (over £600m) project for an energy from waste facility.
  Duncan has also acted in a number of applications in the standstill period, on procurement advice, and in resisting procurement challenges.
• The Secretary of State for Health and ors v Lundbeck, Merck (and ors) [Chancery claim transferred to the Competition Appeal Tribunal and reference awaited] - This is a follow-on claim in relation to damages arising from a ‘pay for delay’ set of agreements between pharmaceutical companies following the upholding by the Court of Justice of the European Union (CJEU) of the EU Commission’s finding of breach of Article 101 The Treaty on the Functioning of the European Union (TFEU). Duncan is lead counsel for the claimants (essentially all the relevant NHS bodies in England and Wales).
  The commission decision was the first decision relating to ‘pay for delay’ in the context of patent infringements, an area since pursued by the Competition and Markets Authority (CMA) in the paroxetine decision and Competition Appeal Tribunal (CAT)  litigation.
• Skyscanner Ltd v Competition and Markets Authority [2014] CAT 16 - Duncan acted for an intervener in this case clarifying the scope of the ability of the CMA to accept undertakings in the face of an identified likely infringement of competition law.
• Wood Boilers LLP v Gas and Electricity Markets Authority [2020] EWHC 3576 (admin) - At a successful permission stage renewal for a judicial review, Duncan acted for the claimants in obtaining permission to proceed with a rolled up hearing to trial of the issues including whether a legitimate expectation (a possession under A1P1 under the HRA 1998) could defeat a provision of secondary legislation or alternatively the relevant secondary legislation must be read so as to ensure compliance.
  Mr Justice Fordham opined that it was arguable (the applicable test) and even “strongly arguable” that secondary legislation must follow the primary legislation – in this instance the Human Rights Act 1998 – in the event of conflict.
  The case was then settled before final hearing.
• National Grid Electricity Transmission PLC v ABB Ltd [2013] EWHC 822 (Ch) [2013] U.K.C.L.R. 177 - Duncan acted for an intervening competition authority in support of this competition damages claim – an early follow on claim in the Chancery Division following the switchgear cartel.
• (Unreported) Settled disputes - Duncan has represented various claimants and defendants, including in interlocutory hearings and mediations, and in pleading cases which have favourably settled where the dispute has concerned, inter alia, the contractual terms of energy supply contracts.

“He understands the law – not just the dry legal stuff, but the context around it”  Chambers and Partners 2019

Duncan acts regularly in the energy sector and has an expertise built up over some 25 years including five years as head of legal at the energy regulator Ofgem.

Areas covered

• Biomass and energy from waste
• Electricity
• Nuclear
• Oil and Gas
• Renewables
• Water

Cases of note

• R. (EO.N Next) v Gas and Electricity Markets Authority [2023] EWHC 2891 (Admin) - Duncan acted for the Claimant in this successful judicial review of an Ofgem (GEMA) decision relating to the correct interpretation of standard licence conditions relating to appointments of the Claimant as ‘Supplier of Last Resort’ during the Energy Crisis. The case also raised issues as to the potential scope of a legitimate expectation and irrationality.
• The CMA Energy Market Investigation (published 9 February 2016) - Duncan was instructed by the CMA in relation to its investigation under the Enterprise Act 2002 into the regulatory, commercial and economic functioning of the energy markets in Great Britain.
• R. (on the application of Gravis Solar 1 Ltd and ors) v Gas and Electricity Markets Authority [2021] EWHC 490 (Admin) - Duncan acted for the claimants in this judicial review which established that the regulator had interfered with possessions of a solar farm such that A1P1 of the Human Rights Act 1998 was engaged. The case raised issues of proportionality and the status of companies as a ‘victim’.
  Whilst the result of the judgment turned ultimately on the judge’s assessment of fraud, the matter is one example of some eight disputes with Ofgem in which Duncan had achieved a successful result for a number of clients, including a change in the regulator’s ‘minded-to’ positions affecting accreditations.
• R. (on the application of British Gas Trading Ltd and ors) v GEMA [2019] EWHC 3048 (admin) - In this successful judicial review of aspects of Ofgem’s ‘price cap’, Duncan acted for one of the intervening parties arguing that there had been a failure to properly consult and to take into account material facts.
• R. (on the application of RWE Generation UK Plc) v GEMA [2016] 1 C.M.L.R 17 - Duncan acted for the claimant in a complex judicial review relating to infrastructure charging changes, raising legal issues of discrimination under EU law and state aid.
• R. (on the application of HomeSun and Friends of the Earth) v Secretary of State for Energy and Climate Change [2012] EWCA Civ 28 - Duncan acted for a claimant in this successful expedited judicial review and its defence in the Court of Appeal. The ‘target’ was a consultation (not a final decision) with the obvious and intended effect on the claimants. This success led to several further cases for damages under A1P1 (including Breyer in which Duncan acted for an interested party).

Areas covered

• Biodiversity and habitats
• Clean energy and technologies
• Climate change
• Environmental assessment
• Waste and the circular economy