Naomi Ellenbogen

nellenbogen@littletonchambers.co.uk

Practice Profile

One of the leading practitioners in the field of employment law, 'first class advocate', Naomi Ellenbogen has won a raft of plaudits from clients and legal directories since she was called to the Bar by Gray's Inn in 1992.

As well as recognising her 'superb' skill in cross-examination and her 'bright and commercial' attitude, Chambers and Partners and the Legal 500 have variously recorded her strong reputation as a 'punchy advocate, recognised for her ability to assimilate large quantities of information' who 'will go that extra mile' for her clients and 'never fails to impress'.  She 'achieves success through her successful interaction with clients' and has 'excellent advocacy skills - great on her feet, she never concedes a point'.

Naomi's employment practice has seen her undertake a wide range of employment litigation in courts, tribunals and mediation.  She regularly appears in appellate courts and tribunals.  Naomi's principal areas of court work include claims arising during the currency and upon termination of employment, including injunctions, breaches of contract and fiduciary duty and bonus entitlements.  Tribunal work (for claimants and respondents) includes unfair and wrongful dismissal, transfer of undertakings, whistleblowing and redundancy claims.  A specialist in all forms of discrimination law, Naomi has been instructed since 2002 by a large number of NHS Trusts and local authorities in relation to multiple equal pay claims, including the largest in Europe (as measured by value and volume of claims).  Naomi is the General Editor of Butterworths Employment Law: Practice, Procedure & Precedents with CD-Rom, Fifth Edition.

'Highly recommended' and identified as a 'junior of note' in commercial law by the Legal 500, Naomi has been 'singled out by major firms'.  She is 'seen by top firms as an approachable and able commercial practitioner' and counts blue-chip financial institutions and insurers amongst her clients.  Over many years, she has been cited as an expert in this field in the Legal Experts guide.

A 'prominent practitioner' in the field of professional negligence, Naomi has dealt with a wide range of disputes for both claimants and defendants and has a particular emphasis on disputes arising in the general employment and commercial context.

EDUCATION

Having attended King David High School in Liverpool, Naomi gained an MA in Jurisprudence from Oxford University (New College).  She was called to the Bar by Gray's Inn in 1992.

PROFESSIONAL POSTS AND AFFILIATIONS

Naomi is a member of the Conduct Committee of the Bar Standards Board and a case reviewer for the Bar Pro Bono Unit.  She is a member of the ELAAS scheme and has undertaken several cases for the Bar Pro Bono Unit.

Naomi has served on the Gray's Inn Continuing Education Committee since 2003 and on the Gray's Inn Barristers' Committee since 1999.  Naomi is also a member of COMBAR, the Employment Law Bar Association, the Professional Negligence Bar Association and the Technology and Construction Bar Association.  She is a member of the South Eastern Circuit.

PROFESSIONAL EXPERIENCE

Naomi is regarded as a clear-thinking, formidable advocate and an inventive tactician.  Over many years, she has been consistently recognised as a leading employment and commercial lawyer in the various guides.  Her considerable expertise as an elegant advocate and, in particular, as a cross-examiner, is widely recognised.  She has been described as a 'superb cross-examiner', a 'punchy advocate', recognised for her ability quickly to assimilate large quantities of information' and as possessing 'excellent advocacy skills - great on her feet, she never concedes a point'.  Naomi never loses sight of her clients' objectives and is thorough, flexible and imaginative in finding solutions which best serve them.  As an experienced accredited mediator, and having frequently been instructed as counsel in mediations, she is as at home with ADR as she is with litigation.

Naomi enjoys learning about the businesses of her clients and working with the many people whom she encounters.  She regards a speedy, thorough and practical response to Instructions as being essential prerequisites for a modern practitioner, along with an ability to communicate difficult concepts in a clear and straightforward manner, accessible to solicitors and clients alike.  Naomi is noted as being 'approachable', 'able' and 'commercial'.  She has a flair for putting people at their ease and 'achieves success through her successful interaction with clients'.

Naomi has represented companies and individuals in high value wrongful dismissal and bonus claims including those resulting in seven figure settlement sums.  She is a skilful tactician, tailoring her approach to achieve the best result for her clients.  Naomi has also advised individuals contemplating a move from one highly remunerative form of employment to another (frequently with a competitor) and is experienced in considering and advising upon the rules of bonus and share option schemes in this connection.  Contractual and discretionary bonus schemes are a feature of high value employment contracts with which she is very familiar.

Naomi advises employers, prospective employers, future employers and senior directors and employees on the drafting and enforceability of restrictive covenants.  She is experienced in bringing and resisting urgent applications for injunctive relief and in the speedy trials which often follow.  She successfully represented the Claimants in the leading case of L C Services Limited & Others v Brown & Kinesis Solutions Limited LTL 22/12/2003 (QBD), obtaining wide-ranging injunctive relief and indemnity costs, and appeared as junior counsel for the Respondent before the Court of Appeal in Symbian Limited v Christensen (sub nom in The Matter of Symbian Limited) in which the interrelationship of restrictive covenants and a garden leave clause was considered.  She also appeared for the Claimant in Camelot Group Plc. -v- Centaur Communications Limited, a case concerning whistleblowing and breach of confidence which considered whether it was in the public interest for s10 of the Contempt of Court Act 1981 to be applied to prevent disclosure of the source of leaked information concerning the Claimant's annual accounts.

Naomi has been involved in a wide variety of discrimination cases and is adept at dealing pragmatically with the wider commercial concerns and sensitivites which they can generate, for example arising from adverse publicity and press coverage.

The conduct of large scale equal pay litigation has called upon Naomi's considerable skills in planning, co-ordination and organisation.  Naomi has many years of experience in the conduct of such claims on behalf of NHS Trust and local authority Respondents, both independently and as junior counsel.

Naomi is junior counsel for (amongst other Trusts) North Cumbria Acute Hospitals NHS Trust which is at the forefront of the largest piece of equal pay litigation in Europe.  Her involvement with these cases, which require consideration of all aspects of equal pay law, has earned her recognition as a leading expert in this field.

Naomi regularly advises on the application of TUPE.  She appeared for the successful Respondent in the landmark case of MITIE Managed Services Limited v French & Others [2002] IRLR 512 (EAT) in which the EAT held that, where a contractual right to performance related pay conferred by a transferor was impossible of performance by the transferee, the transferee's obligation was to provide a benefit of substantial equivalence.

Internal Disciplinary Enquiries

Naomi has advised a number of public and private employers as to their disciplinary and regulatory rules and as to the conduct of internal disciplinary enquiries.  She has appeared as counsel for individuals before professional disciplinary bodies such as the Nursing and Midwifery Council.  As a long-serving member of the Conduct Committee of the Bar Standards Board (and of its predecessor committee), Naomi has considerable experience in the practical application of rules of professional conduct and the considerations and sensitivities surrounding their application.

Naomi's practice also encompasses business and commercial disputes outside the field of employment law.  She has a particular expertise in the inter-relationship between employment and commercial law.  As a result, she is often instructed in cases in which employment disputes have arisen against a background of disputes relating to other commercial transactions and considerations.  She has acted for individuals of high net worth in commercial arbitrations as well as in the High Court and is experienced in claims involving breaches of contract and fiduciary duty.

Naomi has been recognised as a prominent practitioner in the field of professional negligence, in which she has wide experience.  She has a particular expertise in those cases in which the alleged negligence arises in an employment or commercial context.  In the raft of litigation which followed the property crash of the 1990's, as a very young junior, Naomi undertook a large volume of work for and against lending institutions, solicitors and surveyors and gained a reputation as a 'rising star' and skilled tactician who punched above her weight.  She has built upon and consolidated that reputation ever since and is instructed by financial institutions, surveyors, solicitors, insurance brokers, accountants, Trades Union and individuals in this area of law both in the High Court and in the Court of Appeal.

Mediation

Naomi recognises the value of alternative dispute resolution.  Where appropriate, she advises clients as to the merit in ADR and is frequently instructed to present their cases to the mediator.  She is familiar with and accomplished in the particular skills required in such circumstances and has been instructed in cases in which particular sensitivity and diplomacy have been called for, such as where the opposing party was suffering from mental illness.

Naomi is an accredited mediator.  She has experience of mediating high value disputes in all fields in which she practises; her skills and experience in those areas enabling her to assist the parties in reaching agreement.  She is creative in helping them to find solutions which would not be available were the matter to be litigated.

Publications

Naomi is the General Editor of Butterworths Employment Law: Practice, Procedure & Precedents with CD-Rom, Fifth Edition.

Lecturer and Advocacy Trainer

Naomi's reputation in all of her areas of expertise means that she is in demand as a lecturer on substantive and procedural law in those fields.  She is a regular speaker at conferences, seminars and to individual firms of solicitors and Government Departments by request, and has received many plaudits for her clear, informal and informative style.  Her material is CPD accredited.

Naomi is an advocacy trainer of barristers and solicitor advocates and of those who train them.

Outside Interests

As a musician herself, Naomi has a keen interest in music (in particular, opera, classical and jazz) and dance.  She enjoys travel, theatre and cinema and sailing.

Notable Cases

Some of Naomi's notable cases appear below:

Younis v Trans Global Projects Limited & Charnock LTL 1/2/2006 (EAT) mutuality of obligations: whether a consultant was a worker and/or an employee for the purposes of claims brought under the Employment Rights Act 1996 and the Race Relations Act 1976.
Party Represented: Respondents

British Bakeries Limited v Nascimento LTL 26/8/2005 (EAT) working time: a claim in respect of holiday pay which relied upon the Working Time Regulations 1998 ("the WTR") could only succeed if it were brought under regulation 30 of the WTR. A chairman sitting alone had permitted Mr Nascimento to rely upon the provisions of the WTR in a claim for unauthorised deductions from wages. In the circumstances, she had no jurisdiction to entertain that complaint sitting alone.
Party Represented: Appellant

LC Services Limited & Others v Brown & Kinesis Solutions Limited LTL 22/12/2003 (QBD) restrictive covenants, breach of fiduciary duty, misuse of confidential information: speedy trial following an application for injunctive relief brought against a former employee of the Claimant and his new employer.
Party Represented: Claimant

Mallon v Corus Constructions & Industrial (a Division of Corus UK Limited) LTL 9/10/2003 (EAT) disability discrimination: early termination of the Appellant's interview was justified because she could never have satisfied the Respondent that, given the nature of the job for which she was applying, her acknowledged disability posed an acceptable risk to herself or to other employees.
Party Represented: Respondent

Dave v Robinska [2003] ICR 1248 (EAT) sex discrimination: section 11 of the Sex Discrimination Act 1975 did extend to cover the discriminatory act by one partner against the other in a partnership comprising only two individuals.
Party Represented: Respondent

MITIE Managed Services Limited v French & Others [2002] IRLR 512 (EAT) transfer of undertakings: where a contractual right to performance related pay conferred by a transferor was impossible of performance by the transferee, the latter's obligation was to provide a benefit of substantial equivalence.
Party Represented: Appellant

Simmons v Overbury Steward & Eaton & An'r LTL 11/03/2002 (QBD.)(led by Justin Fenwick QC) solicitors' and barrister's negligence: a firm of solicitors and the barrister whom it had instructed were not negligent where each had given advice which a reasonably competent adviser would have given and had given the client sufficient warning of the risk of that advice being wrong.
Party Represented: First Defendant

Symbian Limited -v- Christensen (sub nom In The Matter Of Symbian Limited) [2001] IRLR 77(CA) (led by Andrew Stafford QC) restrictive covenants, garden leave, breach of confidence: a clause prohibiting an employee from engaging in any other business during the period of his employment was enforceable during the currency of any notice period, and was unaffected by the fact that a garden leave clause was invoked for substantially the whole of that notice period.
Party Represented: Appellant

Re: Globe Legal Services Limited 13/09/2000 (Ch.D.) insolvency: whether, on seeking to expunge proof of a debt, it was necessary to show beyond reasonable doubt, or on a balance of probabilities, that proof of a debt had been improperly admitted.
Party Represented: Respondent

Gerrard -v- Whitworth & Whitworth (sub nom In The Matter Of TW Ward Machinery Limited) LTL 28/01/2000 (CA) (led by Andrew Clarke QC) CPR, strike out for want of prosecution, insolvency: in a case decided pre-CPR, the Judge had been entitled to strike out a petition which had been made under s459 of the Companies Act 1985 for want of prosecution.
Party Represented: Defendants

In the Matter of Oakes (Arthur) (Transcript) 06/11/98, LTA 98/7361/3 (CA), Oakes -v- Kingsley Napley [1999] EWCA 2100 (CA) bankruptcy appeals.
Party Represented: Petitioning Creditor

Furness Building Society -v- Lilleby; Lilleby -v- Kendall & Fisher (Ch.D.) 09/11/98 building society mortgage, professional negligence: whether a mortgagee was entitled to cancellation of an inhibition lodged against the security to enable registration of a transfer and of the society's legal charge. Whether solicitors negligent when acting on the original conveyance.
Party Represented: Plaintiff

Camelot Group Plc. -v- Centaur Communications Limited [1998] IRLR 80, [1998] 2 WLR 379, [1998] 1 All ER 251, [1998] EMLR 1 (CA) (led by David Pannick QC) whistleblowing, breach of confidence: whether it was in the public interest that s10 of the Contempt of Court Act 1981 be applied to prevent disclosure of the source of leaked information concerning the Plaintiff's annual accounts.
Party Represented: Plaintiff

Bradford & Bingley Building Society -v- Hatchwell & Draper [1997] EWCA 877 (CA) professional negligence, criteria for grant of permission to adduce expert evidence out of time.
Party Represented: Plaintiff

London Borough of Hackney -v- Usher [1997] ICR 705, EAT 1143/95, EAT/1282/96 (EAT) employment, burden of proof re: unfair dismissal, propriety of concluding hearing in the absence of having heard evidence from one of the parties.
Party Represented: Respondent

Sheffield -v- Pickfords Ltd. & An'r 16 Tr L 337, The Times, 17 March 1997 (CA) burden of proof: unreasonableness of contractual term, Unfair Contract Terms Act 1977: whether a plaintiff wishing to challenge the reasonableness of standard terms and conditions in a contract relied upon by a defendant to exclude or limit liability had expressly to raise the issue in the pleadings.
Party Represented: Respondent

Cleveland -v- TH Bull & Sons EAT/458/96, Gil -v- TH Bull & Sons EAT/459/96 (Transcript) 10 March 1997 (EAT) employment, unfair dismissal: proper basis upon which to calculate the compensatory award, test for establishing perversity
Party Represented: Respondent

Higgins & Higgins -v- Hatch & Fielding & An'r [1996] 10 EG 162, [1996] 1 EGLR 133 (CA) professional negligence, limitation periods, s14A Limitation Act 1980
Party Represented: Defendant

Lane -v- UNISON (formerly NALGO) EAT/865/93 13 September 1995 (EAT) employment, limitation period: when does time begin to run for the purposes of commencing proceedings in the Employment Tribunal? 
Party Represented: Respondent