David Gardner

Viewing: Court of Protection for David Gardner

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 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 also by 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.
Recommendations
“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.”
Legal 500 2022 - Administrative and Public Law (including Civil Liberties and Human Rights)
“David provides clear and detailed advice, and is flexible in assisting his clients and those who instruct him.”
Legal 500 2022 - Court of Protection and Community Care (Western)
“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.”
Legal 500 2022 - Court of Protection and Community Care (Wales and Chester)
Notable Cases
HJ (by her litigation friend the Official Solicitor) v A Local Authority, A CCG, and BJ [2021]
David 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.
WY (by his litigation friend the Official Solicitor) v A Local Authority and A Local Health Board [2021]
David 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.
AP (by her litigation friend the Official Solicitor) v A Local Authority and A Local Health Board [2021]
David 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 relating to unsupervised access to the community.
PP (by her litigation friend the Official Solicitor) v A Local Authority [2021]
David 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 suffered 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.
GP (by his litigation friend and ) v A Local Authority and A Local Health Board [2021]
David 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.
AC (by his litigation friend the Official Solicitor) v A Local Authority and KC [2021]
David 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.
Re: JW [2021]
David 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.
A Local Authority v JL and EL [2020]
David 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.
A Local Authority v VW (by her litigation friend the Official Solicitor) [2020]
David represented the local authority in an application for a residence order where the protected party was living at home but due to hoarding behaviours the home was no longer inhabitable. Further, an order preventing contact with a male associate of P who was living on her property and was preventing carers attending the property was sought.
SH (by her litigation friend the Official Solicitor) v A Local Authority [2020]
David represented the protected party in this case where, as a result of years of documented alcohol abuse, the protected party had been diagnosed with alcohol dependence syndrome and associated amnesia. The case required cross-examination of expert witnesses on the issue of capacity to make decisions as to residence.
Re: GSB [2020]
David represented the brother of the protected party where there was a dispute between the protected party’s family and the local authority as to where it would be in the protected party should reside. The protected party had complex needs arising out of Down’s syndrome and a learning disability.
HH (by her RPR and litigation friend SC) v A Local Authority [2019]
David represented the protected party in this case where the protected party had been assessed as lacking capacity to make decisions as to her residence and had previously allowed her home to deteriorate to a dangerous condition. After a contested hearing the Court ordered her home be cleaned and repaired and that she trial a return home in line with her express wishes and feelings.
A Local Authority v RM and GM [2019]
David represented the local authority in an application for a residence order and preventing contact with the protected party’s estranged father, who had been accused of abusing her as a child.
A Local Authority v DK and SK [2019]
David represented the local authority in an application for deputyship where the protected party was held to lack capacity to make decisions as to her property and affairs, had capacity to execute a lasting power attorney, but where her chosen attorney was potentially subjecting her to coercion and control and acting to her detriment.
RS (by her litigation friend the Official Solicitor) v A Local Authority and A Clinical Commissioning Group [2019]
David represented the CCG in this case where capacity was in issue due to a “unique diagnosis” relating to anxiety and where residence and care orders were required as the protected party had a rare skin complaint requiring regular personal care, which she would frequently refuse.
Re: EB [2019]
David represented the Office of the Public Guardian in a case where two contradictory lasting power of attorneys had been executed by the protected party and both of which were cancelled due to a failure to comply with statutory requirements.
Re: KS [2019]
David represented the protected party in this case where there were conflicting capacity assessments relating to P’s capacity to make decisions as to her property and affairs.
A Local Authority v MB (by her litigation friend the Official Solicitor) and MA and AB [2019]
David represented the local authority in case management hearings before the Court of Protection and Family Division of the High Court exercising its inherent jurisdiction concurrently. The protected party was a young woman of Pakistani origin. Contact and residence orders were sought in the case as P’s father was considered to be abusing her and/or exercising controlling and coercive behaviour, including attempting to arrange a marriage in Pakistan.
PM v AM and AW [2018]
David represented a professional deputy resisting an application by a protected party’s estranged wife for maintenance payments from a sizable personal injury settlement.
Appointments
David was appointed as a Chairman of the Valuation Tribunal for England in 2017
Panel Counsel for the Equality and Human Rights Commission
Panel Counsel for the Welsh Government
Awards
In 2017 David was named by the Institute for Welsh Affairs as one of their “30 in 30”: 30 people working to make Wales better over the next 30 years’.
Memberships
Public Law Wales (as an executive committee member and assistant secretary)
South West Administrative Lawyers Association (as a committee member and secretary)
Administrative Law Bar Association (ALBA)
Court of Protection Practitioners Association (COPPA)
Human Rights Lawyers Association
Liberty
Welsh Legal History Society
Member of the Western Circuit
Member of the Wales and Chester Circuit
Qualifications
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
Publications
Publications
David’s book ‘Administrative Law and the Administrative Court in Wales’ was published by the University of Wales Press in 2016.
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, administrative, and criminal law, including:
“Administrative Law and the Administrative Court for – or in – Wales” in ‘Executive Decision-Making and the Courts: Revisiting the Origins of Modern Judicial Review’ (2021) Hart Publishing
“An Administrative Law Code for Wales: Benefits to Reap and Obstacles to Overcome” Statute Law Rev, Volume 40, Issue 3, October 2019, Pages 273–286
“The Administrative Court and Administrative Law in Wales and Comparative Perspectives” (with Dr. Sarah Nason) in Administrative Justice in Wales and Comparative Perspectives (2017) University of Wales Press
“Public Law Challenges in Wales: The Past and the Present” [2013] P.L. 1

Latest News & Publications

David Gardner represents the Claimant, an unaccompanied child asylum seeker, in the case of R (HA) v London Borough of Islington....

Date: Mon, 16 May 2022
David Gardner has been appointed to the Welsh Government’s Panel of Approved Counsel....

Date: Mon, 15 Feb 2021
No5 Barristers, David Gardner and Nabila Mallick, have obtained permission to apply for judicial review in the case of R (DK) v Secretary of State for the Home Department (CO/4585/2020)....

Date: Tue, 12 Jan 2021