Graham Cunningham

Introduction & Contact details

"Has good academic skills and is useful on the regulatory side" (Chambers and Partners 2009)
 
"Possesses a sound commercial outlook" (Chambers and Partners 2008)

"Came to the Bar after accumulating invaluable experience as in-house counsel...his expertise includes advising on computer, telecoms, Internet and e-commerce matters" (Chambers and Partners 2007) 

Graham spent a substantial part of his early career in industry, initially as a lawyer specialising in intellectual property licensing and technology transfer with the UK subsidiary of US conglomerate ITT Corporation. He then became the first in-house lawyer with computer company Wang (UK) Limited, subsequently becoming its legal director and company secretary and a member of the management team. This in-house experience allows him to bring a broad commercial perspective to his work at the Bar. He entered practice with effect from January 1994. Graham has been mentioned as an IT junior over many years in the Chambers UK. Directory.

Graham undertakes a wide range of contentious and non-contentious work in:

• Computers and Information Technology
• E-Commerce
• Telecommunications (including radio communications, broadcasting, regulatory and   commercial work)
• Data Protection and Freedom of Information
• Intellectual Property (including Database Rights; Trade Marks; Service Marks; Passing Off; Design Rights; Domain Names; Cybersquatting; Copyright; Confidential Information; Breach of Confidence; Trade Secrets;Counterfeit Goods; Merchandising);
• R&D and Technology Transfer;
• UK/EU Commercial Trading (e.g. Franchising, Sales, Commercial Agents; Leasing and Hiring; Consumer Credit, Joint Ventures and Distribution Agreements);
• UK/EU Competition Laws;
• Sector Reform in Utilities (including Water and Energy), Transport and Communications;
• Legislative drafting;
• Alternative Dispute Resolution (especially Mediation and Early Neutral Evaluation)

Qualifications

• Franchising
• Information Technology & Telecoms
• Intellectual Property
• Arbitration & Mediation

Professional Associations

• COMBAR
• Intellectual Property Bar Association
• London Computer Law Group

T:   020 7242 2523 (switchboard)
F:   020 7691 1234
E: graham.cunningham@hardwicke.co.uk

IT & Telecoms

Graham’s familiarity with Information Technology stemmed from his second industrial appointment as the first in-house lawyer, and latterly legal director, company secretary and a member of the management team of 1980s computer company, Wang (UK) Limited. Since rejoining the Bar, he has had several spells working for well-known computer companies such as HP, IBM, PwC, Bull Information Systems, and Research Machines. He believes that this gives a genuine added value to the advice he gives as he can speak both from personal experience and from an understanding of the commercial imperatives that drive industry and commerce.
 
His work has included both contentious and non-contentious issues and has embraced:

• outsourcing
• software creation and licensing
• electronic communications
• E-commerce
• disaster recovery
• computer misuse
• computer leasing
• consultancy services
• system turnkey and integration projects
• Internet Law
• procurement,
• support and maintenance of hardware and software.

Work in this Area

• drafting new telecommunications laws for several developing countries, most recently in Mongolia, drawing substantially on UK and EU current practice
• setting up telecommunications regulatory bodies;
• setting up a new telecommunications provider through extensive involvement in the preparation and negotiation of IT contracts for its infrastructure
• drafting licences and interconnection agreements
• working for the fraud detection department of Hewlett Packard
• advising the Isle of Man Government on landing submarine cables
• dealing with universal access and universal service issues for several developing countries;
• advising in the sale of a television transmission business;
• advising on rights of way under the Code Powers regime;
• advising on anti-competitive aspects of the liberalised telephone/Internet directory enquiry service in the UK, including a reference to OFCOM;
• conducting significant litigation resulting from the threatened removal of a telecommunications network by a major operator.
• Advising landlords on their rights with respect to removal of mobile communications equipment.

Franchising

Graham is currently best known for his work in franchising disputes. He has acted for a number of high profile firms practising in this area and several franchisors who are household names. He has worked for both franchisors and franchisees. His work has included appearing in Bondword v Cash Generators Limited (led by Nigel Jones QC, settled after trial and prior to judgment) concerning internet selling and territorial exclusivity and  working on behalf of Servicemaster (questions relating to "policing" the network). He has also acted for US based and internationally known property franchisor "Century 21" in a number of cases concerning contract interpretation and trade mark infringement and for Kall Kwik and Prontaprint in a number of cases to restrain breach of post termination covenants.

Recent Cases

Stone & Ashwell v Fleet Mobile Tyres [2006] EWCA 1209
Court of Appeal Case concerning the right of a franchisor to alter the branding used by franchisees on the principle of non-derogation from grant and whether the franchisor was, in the circumstances of internet sales acting as principal or agent.

Grow-with-Us v Greenthumb [2006] EWCA 1201
Graham appeared for Greenthumb at trial and in the Court of Appeal. The case explored issues relating to the certainty of criteria for renewing franchise agreements and data protection issues

Commercial

Graham’s practice takes in a number of interesting and wide-ranging facets. He has extensive specialist experience of Computers and Information Technology, extending back to 1978. To this he has added in-depth knowledge of Telecommunications law and practice built up over nearly 15 years. His involvement with telecommunications regulatory matters has now broadened out into the regulation of transport, energy and water. He was, for example in Jordan in July 2009, drafting legislation to create the country’s water regulator.

Graham has a great deal of experience in handling all types of business disputes, and especially franchising matters on which he has been to the Court of Appeal twice in the last three years. He also deals with the sale and supply of goods and services, consumer credit, distribution and agency relationships. His knowledge includes both relevant UK and EU laws and competition laws in particular.

Graham additionally practices in the area intellectual property, covering a wide range of disciplines as set out below.

Finally, Graham is a CEDR Accredited Mediator who obtained his accreditation in 1993.

Professional Negligence

Graham also has experience of professional liability matters. His work has included:

Inventors Friend Limited v Leathes Prior [2011] EWHC 711 (QB) - professional duty on solicitors to consider the prospect of licensing intellectual property in addition to sale as a means of providing income to a company on termination of a distribution agreement.

Trade

Graham has been drafting, amending, advising on, negotiating and litigating domestic trade agreements for nearly 30 years. He is particularly familiar with specific agreements for IT and telecommunications businesses. However, he has extensive experience in more general trading agreements, such as commercial agents regulations, agency and distribution, hire, hire purchase and consumer credit, sale of goods and the supply of goods and services. He is best known for franchising work in which he has had an extensive involvement over the last four years. He is fully aware of European Union laws relating to these areas.

Utilities

Graham has experience of water, sewerage, gas and electricity, communications and transport regulation. This has been largely derived from a number of international projects which he has undertaken since 1995, although he has undertaken work in the United Kingdom as well.

Recent work has included:

writing standard terms and conditions for a UK gas supplier
litigation concerning the liability of a gas transporter under the Health and Safety at Work Act for the effects of a gas explosion
drafting new legislation for the creation of a water regulator in Jordan in consultation with the Jordanian Water Ministry

These projects have involved him in creating new primary and secondary legislation, operational charters for regulatory bodies, and documents to allow regulators to operate. This work has required him to familiarise himself with all the underlying concepts in each of the utility areas, for example, tariffs, interconnection and access agreements, supply agreements, powers to install, share and remove infrastructure, competition issues, sanctions regimes, consumer protection issues, environmental and health issues, the content, grant and removal of licenses, performance standards and criteria, codes of conduct, customer contracts, quality and safety standards, dispute resolution procedures, appeals procedures and regulatory accountability.

Alternative Dispute Resolution

Graham has acted as a mediator in several dozen disputes over the years, and enjoys a significant success rate in assisting parties to resolve their claims without recourse to litigation. The nature of the disputes include:

• commercial contracts
• commercial agents
• outsourcing
• intellectual property
• professional negligence
• partnership disputes
• computer technology
• software
• telecommunications systems

He is also familiar with other ADR techniques, and in particular Early Neutral Evaluation which he has employed to good effect on several occasions.

He has also worked as a mediation advocate for parties to di

Intellectual Property

Graham’s expertise encompasses issues related to:
 
• confidentiality and trade secrets
• copyright
• counterfeit goods
• data base rights
• data protection
• design rights
• domain names and cybersquatting
• employee IP matters
• merchandising
• passing off
• patent exploitation
• restraint of trade
• R&D contracts
• technology licensing
• trade marks
• service marks