David Gardner is part of the Court of Protection and Public Law groups at No5.
| David regularly represents Claimants and Defendants in judicial reviews and appears in the Court of Appeal and the Administrative Court doing so. He appears regularly in the Court of Protection. David has also appeared in a number of other jurisdictions including in the Immigration Tribunals (both First-Tier and Upper Tribunals), in education cases, criminal cases, and parole hearings. Before starting at No5, David was the sole Administrative Court Office Lawyer for Wales and the South West of England between March 2009 and October 2017. In that role he gained considerable experience in judicial review and administrative law and was responsible for case management of Court and Upper Tribunal cases, including resolving disputes as to procedure between parties and advising Judges on public law cases. From 2005-2009 he was a legal adviser in the Magistrates’ Court.
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David has represented Claimants and Defendant in judicial reviews in the Court of Appeal and the Administrative Court. In doing so David enjoys a broad judicial review practice with a focus on community care law. He also appears regularly in the Court of Protection.
David has considerable experience advising and representing Claimants who wish to challenge the failures of public bodies providing care and support to meet their community care duties. He also regularly advises and represents local authorities, CCGs and Local Health Boards.
David has a busy community care practice in both England and Wales. He regularly deals with cases relating to duties under the Care Act 2014 in England and associated challenges, including ordinary residence disputes. David has a particular specialism in community care law in Wales and the duties under the Social Services and Well-being (Wales) Act 2014 and has provided advice to the Equality and Human Rights Commission on the subject.
David frequently represents Claimant’s in judicial review proceedings relating to adequate accommodation for asylum seekers, accommodation and support for looked after and former looked after children, and in age assessments.
Before starting at No5, David was the sole Administrative Court Office Lawyer for Wales and the South West of England between March 2009 and October 2017. In that role he has gained considerable experience in judicial review and administrative law and was responsible for case management of Court and Upper Tribunal cases, including resolving disputes as to procedure between parties and advising Judges on public law cases. From 2005-2009 he was a legal adviser in the Magistrates’ Court.
Represented the Claimant in this case challenging the Secretary of State’s decision to reject the recommendation of the Parole Board that the Claimant, a serving prisoner, should be moved to open conditions. The decision was quashed on the basis it was irrational and inadequately reasoned.
Represented the Respondent (Defendant in the Magistrates’ Court) in this appeal by way of case stated where the Divisional Court gave guidance on the definition of harassment, the appropriate practice and procedure when seeking to amend the Magistrates’ stated case, and the powers of the Divisional Court relating to conviction and sentence.
Represented the Claimant in this case challenging the adequacy of the accommodation which is provided to pregnant/new mother asylum seekers (“PNMAS”). It was the lead case challenging the Secretary of State’s policy and system of allocation and provision of accommodation provision for pregnant / new mother asylum seekers. The Court held that the Defendant’s system of allocation was unlawful because the Defendant failed to monitor or collect data on the numbers of PNMAS in the asylum estate, which was a breach of the public sector equality duty under s.149 of the Equality Act 2010. The Court also made a number of observations on the flaws in the Defendant’s system. David represented the Claimant (and a large number of Claimants in linked claims) in the interim relief and permission stages of the claim and was led by Philip Rule KC for the substantive hearing.
Represented the Claimants in this case which challenges the decision of the Welsh Ministers to end holiday free school meal funding in Wales. The case raises a number of untested issues, including the duties of the Welsh Government to comply with and have due regard to their duties under the Rights of Children and Young Persons (Wales) Measure 2011, s.149 Equality Act 2010 (public sector equality duty), and to consult relevant persons under The Equality Act 2010 (Statutory Duties) (Wales) Regulations 2011 and common law. The Welsh Ministers conceded the case without a hearing and declarations were made that their decision making process was unlawful. David was led by Gwion Lewis KC.
https://www.bbc.co.uk/sounds/play/live:bbc_radio_wales_fm (reported at 17:45)
https://x.com/publiclawprojct/status/1750108351994691709?s=20
https://www.gov.wales/written-statement-holiday-free-school-meals-provision
Represented the Claimant in an important case where Mr Justice Fordham gave guidance on when hotel accommodation being provided for asylum seekers under s.95 of the Immigration and Asylum Act 1999 becomes ‘inadequate’, and thus unlawful. The case focuses in particular on the use of such accommodation for pregnant women and families with young children. The Court held that in the circumstances of the case, the Defendant requiring a pregnant woman, her 3 children, and latterly her baby, to reside in a hotel room for 15 months was unlawful.
Represented the Claimant in this case challenging the refusal of the Defendant to undertake an age assessment of the Claimant or properly consider its duty to do so. The case considered public bodies’ duties of enquiry (Tameside duties), procedural fairness, and unreasonableness.
Represented the appellant in this appeal from the decision of the Magistrates on a point of law to the Administrative Court. The case considered and gave guidance on the issue of implied consent to battery and the necessary mens rea (intention) which must be proven to constitute an offence.
Represented the Claimant in the Administrative Court challenging the failure of the Defendant to provide suitable education for the 11-year-old claimant under s.19 of the Education Act 1996 and to make educational provision for him in accordance with his Education, Health and Care Plan (EHCP), in breach of s.42 of the Children and Families Act 2014. The Court allowed the claim at a substantive hearing (unopposed at the door of the Court) and made declarations and mandatory orders that suitable education be provided.
Represented the Claimant. The claim concluded with the Administrative Court approving an order allowing the Claimant’s application for judicial review on the basis that the Health Board had unlawfully failed to support her to access the wider community in breach of duties under the Social Services Well-being (Wales) Act 2014 and Care and Support (Eligibility) (Wales) Regulations 2015. The Court also ordered the Health Board to take steps to support the Claimant and facilitate such access to the wider community.
Represented the Claimant in the Court of Appeal in this claim challenging the decision of a Crown Court Judge to allow the press to report the home address of a vulnerable woman charged with murder and infanticide. The case considered the competing principles of freedom of the press (article 10 ECHR) and the right to privacy (article 8 ECHR). Led by Philip Rule.
Represented the Welsh Government in a judicial review in which the Claimant sought to establish the legal definition of ‘open air-recreation’ and whether caving falls within that definition. The claim involved a number of technical legal questions, including whether the decision the Claimant wished to challenge was justiciable, whether the claim was academic as it invited consideration of hypothetical points of law which did not arise out of the decision challenged, and finally, detailed consideration of the interpretation of the provisions of the Countryside and Rights of Way Act 2000. The claim concluded with a negotiated settlement.
Represented the Claimant in the Administrative Court challenging the decision of the Parole Board to refuse to direct release of a prisoner on licence or to open conditions.
Represented the Claimant in the Court of Appeal challenging HMRC’s stop and search policy.
Represented the Claimant in the Administrative Court challenging a District Judge’s decision to proceed with a trial in absence in the Magistrates’ Court.
David has considerable experience in the Court of Protection. He accepts instructions and has acted in both health and welfare (both under ss.16 and 21A of the Mental Capacity Act 2005) and property and affairs cases. He has also been instructed to act in the Family Division of the High Court exercising its powers under the inherent jurisdiction to protect vulnerable persons.
David is frequently instructed to act on behalf of protected parties, including cases involving the Official Solicitor and RPRs acting as litigation friends. David also acts for the Office of the Public Guardian, Local Authorities, Clinical Commissioning Groups, and Local Health Boards. He has also been instructed to act on behalf of professional deputies and families.
As part of his general practice David has experience of high-level advocacy, including cases in Court of Appeal, the Administrative Court, and the Upper Tribunal.
Before starting at No5, David was the sole Administrative Court Office Lawyer for Wales and the South West of England between March 2009 and October 2017. From 2005-2009 he was a legal adviser in the Magistrates’ Court.
Represented the protected party in this s.16 MCA 2005 application / s.21A
MCA 2005 application where P sought a move to Northern Ireland. Complex case
which involved novel capacity issues around contact, best interests decision
making, cross-jurisdictional issues, and issues of disclosure and party status
of P’s husband (to which P objected).
Represented the protected party in this case where the local authority
planned to move P from her residential care home to a supported living flat in
a care home against her wishes and feelings. P presented with behaviours which
challenge and multiple complex diagnoses, but is high functioning and attended
Court to address the Judge. Case required cross examination of social worker
and independent social worker.
Represented the local authority in this s.16 MCA 2005 application before
Knowles J. The case involved a 19 year old who had been subject to orders of
the Family Court before turning 18. Complex issues of capacity arose relating
to residence and care, contact (including with a former carer accused of
abuse), engaging in sex, and contraception. Complex best interests decisions
relating to P’s residence and contact arrangements, including safeguarding
issues, relating to P were involved.
Represented the protected party, a young lady with autism spectrum
disorder, a learning disability, and attachment disorder resulting in complex
care and support needs. P was provided with residence at care in a flat in a
hospital setting, but the professionals disagreed as to whether she required a
hospital setting, raising legal issues relating to the proper framework for P’s
deprivation of liberty (the Mental Capacity Act 2005, the Mental Health Act
1983, or the Inherent Jurisdiction of the High Court). The Court sat
dual-ticked in the COP and High Court to determine the point. Further issues
arose as to P’s best interests and how care and support was best provided,
including whether it should be provided in the community in a flat with or
without her mother, BJ.
Represented the protected party in this case where P was residing in a
care home, in line with her wishes and feelings, but her daughter had made an
application under s.16 MCA 2005 for an order that P moved to reside with her.
Safeguarding issues had been raised and the applicant daughter had previously
removed P from the care home without Court consent. The applicant was
unrepresented. P’s other daughter was also an unrepresented party who opposed a
move. After a 2-day hearing, the Court determined that it was in P’s best
interests to remain in the care home and a negotiated settlement on contact
arrangements was approved by the Court.
Represented the local authority in this case where P was diagnosed
with a Schizoid Personality Disorder and communication difficulties and
cognitive impairment further to a stroke. Complex capacity issues arose
relating to ability to communicate a decision (which required SALT and
rehabilitation OT involvement) and unwise decision making, as P had always
resided in a shed on his family’s land and wished to return. Issues of best
interests arose and available options in the context of planning law as P’s shed had not been granted planning permission, but was exempt from planning
permission as he had used it as a residence for over 10 years.
Represented the local authority in this case where P had been admitted to
hospital after neglect whilst living with her son and expressed a wish to be
discharged to live in Scotland. P was also adamant that she did not want to be
discharged to a care home in the interim. Complex issues arose regarding care
and support and deprivation of liberty when moving Scotland and required
consideration of issues of habitual residence (relevant to the applicable law,
England and Wales or Scotland) and both sch.3 of the MCA 2005 and the Adults with Incapacity
(Scotland) Act 2000. Case further complicated by P’s representatives and the
local authority considering interim discharge from hospital would not be in P’s
best interests and the Trust taking a different position.
Represented the protected party who had been diagnosed with paranoid
schizophrenia and alcohol dependence. P had expressed a consistent wish to move
away from care home accommodation and into a less restrictive setting. Both
capacity evidence and best interests evidence of the local health board failed
to provide sufficient evidence resulting in successful applications for an
independent capacity assessment by a consultant psychiatrist and for best
interests evidence on residence and care options from an independent social
worker
Represented the protected party, a young lady with autism spectrum
disorder and a learning disability, in an application where capacity to make
decisions as to residence and care and to engage in sexual relations were in
issue as well as best interests decisions in those areas. The case involved
applications for instruction of an independent social worker and detailed analysis of a progressive care plan allowing for staggered easing of
restrictions ultimately resulting in unsupervised access to the community.
Represented the protected party an elderly lady with dementia who was
said by medical professionals to be at the end of her life. She had a long-held
wish to end her days living in Halifax but was residing in a care home in
Gloucestershire. By the time of the final hearing she no longer recognised her
surroundings and would be likely to suffer distress during a move to Halifax. The final hearing required cross-examination of P’s GP and social worker to determine P’s best interests.
Represented the protected party who had experienced two acquired brain
injuries and a resultant cognitive impairment. The case involved a contested
application for a trial community placement. At an earlier stage in proceedings
a contested hearing took place to determine whether the Court of Protection had lawful authority to determine whether it was in P’s best interests to be added to the local authority’s housing register and to order he be so added if it was in his best interests.
Represented the local authority in this case where the protected party
experienced a learning disability. The case involved best interest decisions as to whether P should remain living in supported living accommodation or move to live with his mother, KC. The case also considered, at a contested hearing, the discrete issue as to whether P had mental capacity to make decisions relating to contact with his mother where all parties and professionals agreed he lacked capacity to make decisions as to his contact with other people generally.
Represented the Office of the Public Guardian in this case where the OPG
applied for orders removing family members as attorneys on the basis that they transferred large sums of money from P’s estate and had improperly used P’s funds for gifts. The OPG also applied for the appointment of a professional
deputy to manage P’s property and affairs, which was determined at a contested hearing.
Represented the local
authority in the Family Division of the High Court exercising its inherent
jurisdiction. The protected party was a disabled young woman who had been
assessed as having capacity within the terms of the Mental Capacity Act 2005 to make decisions as to her residence, but being incapacitated and thus unable to make such decisions by way of the coercive, abusive relationship with her
partner, who also had mental health difficulties. The case also involved an application for an injunction against the vulnerable person’s partner.
We are delighted to announce that following the successful completion of their pupillage, Anna Stein, Samuel Leach, Matthew Wyatt, Mirren Gidda and Tutku Bektas have…
David represented the Claimant in the case of R (Draper) v Secretary of State for Justice [2024] EWHC 1892 (Admin). The case was heard by…
"David is always calm, measured and logical, which makes him an excellent advocate."
"David is able to achieve his goals through good negotiations. He knows when to push and when not to push."
"David is an excellent advocate. He provides detailed and clear advice on complex issues."
"David produces polished advocacy both on paper and in Court." "He is diligent and achieved quick and successful results."
"David’s knowledge of his field is second to none. He is able to give clear advice on complex issues and advocate for clients in the strongest and most effective terms. His warm and sensitive manner allows him to build a quick rapport with vulnerable clients. In short, he is everything you could want in a Court of Protection barrister."
"He is technically very good, very responsive and a pleasure to work with." "He is very organised and really cares about his work. He knows the Administrative Court like the back of his hand."
"David knows the Mental Capacity Act inside and out and provides really detailed advice, really quickly." "David is very reliable and quick to respond to any query, no matter how big or small. His advocacy is spot-on whether he is representing a client at a round table meeting or in a hearing."
"David is meticulous and extremely professional. A very clever barrister who is smooth on his feet and builds an excellent rapport with clients."
"David is a hugely reliable barrister. He is wholly invested in each case whether large or small, and is keen to obtain the best outcome for his client. He is very good at maintaining a cordial atmosphere even when the matter is contentious or emotional. He is talented at analysing matters and providing strategic and pragmatic advice in a down to earth and easy to grasp manner."
"David is a very intelligent and capable barrister, with an affable style. He is very approachable and down-to-earth, and always provides pragmatic advice."
"He always responds very quickly and provides all the information you need."
David Gardner is a strong choice for claimants and defendants seeking representation in judicial reviews across England and Wales. He is a barrister with experience in a wide range of cases, including those involving immigration, criminal and social welfare issues.
"David has a unique understanding of public law and the principles that underpin equality and human rights. An excellent advocate. He gets on top of complex legal issues quickly with an excellent grip of the detail and ability to focus on what really matters. He has a calm and reassuring advocacy style that is well-liked by clients."
David provides clear and detailed advice, and is flexible in assisting his clients and those who instruct him.
He has a calm and reassuring advocacy style that is well-liked by clients. His submissions are concise and straight to the point. He is affable and has a conciliatory approach to his cases, but is robust enough to hold his ground when required.
Bar Vocational Course
University of the West of England – 1 September 2004 to 1 July 2005
LLB Law Degree
The University of Leeds – October 2001 to July 2004
R (Hodgkinson) v Blaenau Gwent County Borough Council (CO/484/2022)
Represented the Defendant in this case whether the Claimant challenged the decision of the local authority to uphold safeguarding allegations made against him, the managing director and responsible individual for a care home. The claim considered the responsibilities of responsible persons as apply in Wales under the Social Services Well-being (Wales) Act 2014, the Wales Safeguarding Procedures, the Regulation and Inspection of Social Care (Wales) Act 2016, and the Regulated Services (Service Providers and Responsible Individuals) (Wales) Regulations 2017. The case also considered issues of delay in bringing judicial review proceedings. Permission was refused.
R (HA) v London Borough of Islington (CO/230/2022)
Represented the Claimant in the Administrative Court challenging an abbreviated age assessment conducted and relied upon by the Defendant. The case involved issues as to the question of the jurisdictional fact of the age of the Claimant and on issues of the procedural fairness (lawfulness) of the assessment itself. Permission was granted by the Administrative Court and the case settled with the Defendant agreeing to reassess the Claimant’s age.
R (HH) v London Borough of Brent (CO/2600/2021)
Represented the Claimant in the Administrative Court challenging the refusal of the Defendant to re-assess the Claimant’s age after further significant information which may impact its original assessment came to light. Permission to apply for judicial review has been granted by the Administrative Court. The case settled with the Defendant agreeing to reassess the Claimant’s age.
R (Francis) v Norfolk Magistrates Court (CO/2234/2021)
Represented the Claimant in a judicial review challenging the decision of a District Judge to refuse an application to dismiss a criminal case for lack of jurisdiction. The case turned on the whether the prosecution failed to issue proceedings within the statutory time limit.
R (FAL) v London Borough of Enfield (CO/624/2020)
Represented the Claimant and his children challenging the decision to refuse the children accommodation and support as children in need under the Children Act 1989 on the basis that the Claimant may be entitled to accommodation and support from the Home Office as an asylum seeker. The claim settled with the local authority accepting its duty.
R (Ali) v Halton Borough Council (CO/2930/2019)
Represented the Claimant in the Administrative Court challenging the decision of the Defendant to refuse to provide accommodation and support for a former relevant child and failed asylum seeker without conducting a human rights assessment.
R (JJ) v Cardiff City Council (CO/3132/2019)
Represented the Defendant in the Administrative Court defending a decision to refuse funding for a specialist learning disability placement.
HA v Secretary of State for the Home Department (PA/02835/2018)
Represented the Appellant in the First-Tier Tribunal and Upper Tribunal (Immigration and Asylum Chamber) where the Appellant was a member of the Afghan armed forces who feared reprisal from the Taliban if returned to Afghanistan.
https://tribunalsdecisions.service.gov.uk/utiac/pa-02835-2018
RCD v Secretary of State for the Home Department (RP/00004/2017)
Represented the Appellant in the Upper Tribunal (Immigration and Asylum Chamber) where the First-Tier Tribunal Judge had failed to properly determine whether the Appellant should be classed as a refugee.
https://tribunalsdecisions.service.gov.uk/utiac/rp-00004-2017
David’s book ‘Administrative Law and the Administrative Court in Wales’ was published by the University of Wales Press in 2016.
https://www.uwp.co.uk/book/administrative-law-and-the-administrative-court-in-wales-hardback/
David is an expert contributor to Atkin’s Court Forms for the Administrative Court Forms, Vol.1, 2016 and 2019 editions.
David co-wrote the inaugural Administrative Court Judicial Review Guide in 2016 (and the first update in 2017) with Mrs Justice Whipple and Mr Justice Lewis (as he then was).
David has written a number of articles on public and administrative law, including:
We are delighted to announce that following the successful completion of their pupillage, Anna Stein, Samuel Leach, Matthew Wyatt, Mirren Gidda and Tutku Bektas have…
David represented the Claimant in the case of R (Draper) v Secretary of State for Justice [2024] EWHC 1892 (Admin). The case was heard by…
