Profile
Richard Clayton KC is a commercial litigator/arbitrator and undertakes a wide range of advisory and litigation work (both for and against public bodies) covering tax, community care, data protection, discrimination, environmental, healthcare, human rights, local government (e.g. vires and powers, constitutional issues and governance, elections, finance), public procurement, Privy Council, international work (particularly constitutional work), police actions, tax, and regulatory/disciplinary work.
He has extensive experience in conducting Supreme Court and Privy Council appeals. Lord Wilson in Mohammed v Public Service Commission of Trinidad [2017] UKPC 31 said, “Mr Clayton QC with the charm and skill which is characteristic of him.”
Areas of law
- Commercial Law
- Public Law and Regulatory Work
- Offshore and International Law
- Supreme Court, House of Lords and Privy Council Appeals
Commercial Law
Richard has experience of all types of complex commercial disputes. He has particular expertise in contractual issues which arise in the public sector including public procurement. Richard undertakes emergency injunction work such as freezing and seizure orders as well as arbitrations. He acts in cases concerning commercial contracts, civil fraud, breaches of directors’ duties, insolvency, restitution, shareholders’ rights, issues of statutory or contractual construction and public international law.
Current cases include representing a claimant in a $US 150 m arbitration arising from Qatar, defending damages claim for conspiracy where a strike out/summary judgment claim is pending, acting as an arbitrator in a commercial dispute between a local authority and a private sector care provider, advising in relation to a £7m claim against two banks alleged to be jointly liable with financial advisors for fraud, advising various local authorities in relation to procurement issues, representing a former Minister, allegedly unlawful cartel arrangements concerning several construction contracts in Trinidad and acting for defendants in a conspiracy claim.
Public Law and Regulatory Work
Richard undertakes a wide range of advisory and litigation work (both for and against public bodies) covering community care, data protection, discrimination, environmental, healthcare, human rights, local government (e.g. vires and powers, constitutional issues and governance, elections, finance), public procurement, international work (particularly constitutional work) and regulatory/disciplinary work.
Offshore and International Law
Richard undertakes public and constitutional law, both in the Privy Council and internationally. Sitting as a Deputy High Court judge and as an international arbitrator, he undertakes work in the Caribbean (Anguilla, Bahamas, Belize, Cayman, St Vincent, Trinidad, Turks & Caicos), Canada, US, Channel Islands, Gibraltar, Hong Kong and the Isle of Man.
Instructed in many high-profile cases in Trinidad, Richard is currently instructed to defend a senator defamation proceeding brought by the Prime Minister and in an allegedly unlawful cartel arrangement concerning several construction contracts on behalf of a former Minister.
Richard was the United Kingdom representative to the Venice Commission (Council of Europe’s advisory body on constitutional law) from 2011 to 2019. The Commission comprises independent experts in the field of constitutional law. Richard was a member of its Executive and Chairman of its Sub-Commission on Working Methods. He worked as a Rapporteur in Opinions concerning conscription and freedom of thought (Armenia), freedom of assembly (Russia), freedom of expression and defamation (Azerbaijan, Italy) and judicial independence and mediation (Tajikistan), freedom of association and NGOs (Azerbaijan, Hungary and Romania) and the rule of law crisis in Poland, Malta and Slovakia.
Supreme Court, House of Lords and Privy Council Appeals
Richard is frequently instructed in a wide range of Supreme Court, House of Lords and Privy Council appeals including public law, human rights, offshore and international matters.
Website
Richard has a website to be found at claytonscomments.com which has links to his articles.
Judicial Experience
Deputy High Court Judge (2012)
United Kingdom’s representative to Venice Commission (Council of Europe’s advisory body on constitutional law) (2011- 2019); Member of Executive and Chairman of Working Methods Sub-Commission
Recorder (Crown Court) (2006)
Bencher, Middle Temple (2009)
Visiting Professor, University College, London (2015-2020)
Supreme Court User Group since 2009
Chairman, Constitutional and Administrative Bar Association (2008-2010)
Associate Fellow, Centre for Public Law, University of Cambridge since 2001
Chairman, Bar Council Committee on Civil Legal Aid 2005-2012
Vice Chairman Bar Council Remuneration Committee 2006-2008
Bar Council Remuneration Committee 2005 to 2010
Bar Council Public Affairs Committee 2006-2007
Bar Council International Affairs Committee 2008-2010
Bar Council 2004-2007
Cases and Publications
Public law cases of note:
Southwark LBC v Ludgate House (2020) (CA - whether “guardianship schemes” exempt from business rates)
Hollandwest v HMRC (2019) (injunctions granted to preserve right of access to Court awaiting FTT hearings for wholesalers seeking HMRC approval under s 88C Alcoholic Liquor Duties Act 1979 so as to clarify Supreme Court decision, OWD ltd v HMRC)
Jones v Teaching Regulation Authority (2019) (whether Secretary of State had power to supplement his statutory procedures by using common law power)
R (British Homeopathy Association) v National Health Service England (2018) (consultation challenge to terminating homeopathy treatment)
R (Page) v Darlington Borough Council (2018) (closure of library services)
R (South Yorkshire County Council) v Sheffield Combined Authority (2017) (local government reorganisation)
R (Watch Tower) v Charity Commission (2016) Court of Appeal (judicial review and alternative remedy)
R (English Bridge Union) v Sports England (2015) (whether Sports England acted unlawfully in refusing to recognise bridge as a sport)
R (Hall) v Leicestershire County Council (2015) (museum closure consultation)
Kennedy v Charity Commission (2015) (Supreme Court- Freedom of Information, Article 10 and common law rights)
R (T) v Trafford MBC (2015) (consultation challenge to local authority cuts)
Human rights and civil liberties cases of note:
Hollandwest v HMRC (2019) injunctions granted to preserve right of access to Court under awaiting FTT hearings for wholesalers seeking HMRC approval under s 88C Alcoholic Liquor Duties Act 1979 so as to clarify Supreme Court decision, OWD Ltd v HMRC)
Maharaj v Petroliam Company of Trinidad (2019) (freedom of information - Privy Council)
Seepersad v Ayers-Ceasar (2018) (interim constitutional remedies - Privy Council)
Central Broadcasting Services v A-G of Trinidad (2018) (damages for breach of freedom of expression - Privy Council)
Mohammed v Public Service Commission of Trinidad (2017) (separation of powers - Privy Council)
Tayo v Charity Commission (2017) (discrimination)
Magyar Helsinki v Hungary (2016) (Art 10 and right of access to official information before Grand Chamber of European Court of Human Rights)
Kennedy v Charity Commission (2015) (Supreme Court- Freedom of Information, Art 10 and common law rights)
Recent offshore and international cases include:
Responsible Development to Abaco v Rt Hon Perry Christie (2021) (Privy Council grant permission to appeal to constitutional challenge to Bahamas security for costs orders in environmental cases)
Boland v Chairman of Board of Inland Revenue (2022) (Privy Council- challenge to promotion system for Field Auditors)
Seepeersad v AG of Trinidad (2021) (Privy Council decide important case on right to protection of law, holding that it is breached by detaining juveniles in adult prison)
Hapgood v AG of Anguilla (2021) (AG successfully persuades Privy Council to refuse permission to appeal to alleged contempt is a “criminal cause”)
AG of Anguilla v Lake (2021) (Privy Council) (compulsory purchase compensation acting for AG)
Cassaglia v Stanetto v Gibraltar Heath Authority (2021) (Gibraltar CA considers important issues arising out of first case on Gibraltar’s Bullying at Work Act 2014)
Allen and Wood v Panorma (2021) (Supreme Court grants permission to appeal its decision that there is a constitutional right to a jury trial in defamation cases to be heard in 2022)
Garcia v Commissioners of Inquiry (2021) (Court of Appeal defending Commisson against judicial review of its inquiry into Las Alturas Towers in Trinidad)
Hart v v Commissioners of Inquiry (2020) (successfully defend Commission against judicial review of its inquiry into Las Alturas Towers in Trinidad)
Garcia v Commissioners of Inquiry (2020) (Trinidad judicial review of Commissioners of inquiry into Las Alturas Towers)
R v Misick (2014) (8-day hearing before CA in Turks and Caicos)
Maharaj v Petrotrin Company of Trinidad (2019) (freedom of information- Privy Council)
Commissioner of Police for Trinidad v Singh (2019) (discrimination- Privy Council)
Garcia v Commissioners of Inquiry (2020) (Trinidad judicial review of Commissioners of inquiry into Las Alturas Towers)
Gopeesingh v Al Rawi (2019) (Trinidad CA- election bias application against Chief Justice)
A-G of Trinidad v Maharaj (2018) (judicial appointments of Supreme Court judges - Privy Council)
Central Broadcasting Services v A-G of Trinidad (2018) (damages for breach of freedom of expression - Privy Council)
Mohammed v Public Service Commission of Trinidad (2017) (separation of powers - Privy Council)
R v Misick (2014) (8-day hearing before CA in Turks and Caicos)
Richard’s Privy Council cases also include:
Surratt v A-G of Trinidad (No 2) (2009) (damages for breaching constitutional right to protection of the law)
Panday v Virgil (2008) (representing former Prime Minister of Trinidad in abuse of process complaint following successful bias appeal before Trinidad Court of Appeal)
Suratt v A-G of Trinidad (2008) (anti-discrimination legislation constitutional, reversing Trinidad CA)
Toussaint v A-G of St Vincent (2007) (right of access to the court and parliamentary privilege)
BACONGO v Department of Environment No 2 (2004) (adequacy of environmental impact assessment)
BACONGO v Department of Environment (2003) (jurisdiction of PC to grant interim injunction in pending appeal)
Cases before the European Court of Human Rights include:
Kennedy v United Kingdom (2017) (freedom of expression and freedom of information)
Magyar Helsinki Bizottság v Hungary (2017) (Grand Chamber - freedom of expression and freedom of information)
S v United Kingdom (2009) (Grand Chamber - retention of DNA for individuals arrested but not charged breached Article 8, reversing House of Lords in Marper, 2004)
Liberty v United Kingdom (2009) (statutory scheme authorising telephone interception to and from UK breached Article 8)
Supreme Court, House of Lords and Privy Council appeals
Responsible Development to Abaco v Rt Hon Perry Christie (2021) (PCl grant permission to appeal to constitutional challenge to Bahamas security for costs orders in environmental cases)
Boland v Chairman of Board of Inland Revenue (2022) (PC- challenge to promotion system for Field Auditors)
Seepeersad v AG of Trinidad (2021) (PC decide important case on right to protection of law, holding that it is breached by detaining juveniles in adult prison)
Hapgood v AG of Anguilla (2021) (AG successfully persuades PC to refuse permission to appeal to alleged contempt is a “criminal cause”)
AG of Anguilla v Lake (2021) (PC) (compulsory purchase compensation acting for AG)
Seepersad v Ayers-Ceasar (2020) (PC) (whether detaining juveniles in adult prison breaches constitutional rights)
Maharaj v Petroleum Company of Trinidad (2019) (PC) (freedom of information)
Commissioner of Police for Trinidad v Singh (2019) (PC) (discrimination)
A-G of Trinidad v Petrotrin (2019) (PC) (freedom of information)
The Commissioner of Police for Trinidad v Singh (2019) (discrimination)
A-G of Trinidad v Maharaj (2018) (PC) (judicial appointments of Supreme Court judges);
Seepersad v Ayers-Ceasar (2018) (PC) (interim constitutional remedies)
Central Broadcasting Services v A-G of Trinidad (2018) (PC) (damages for breach of freedom of expression)
Mohammed v Public Service Commission of Trinidad (2017) (PC) (separation of powers)
Kennedy v Charity Commission (2014) (SC) (Freedom of Information, Art 10 and common law rights)
Suratt v A-G of Trinidad (No 2) (2009) PC) (damages for breaching constitutional right to protection of the law)
Panday v Virgil (2008) (PC) (representing former Prime Minister of Trinidad in abuse of process complaint following successful bias appeal before Trinidad Court of Appeal)
Suratt v A-G of Trinidad (2008) (PC) (anti-discrimination legislation constitutional, reversing Trinidad CA)
R (Huang) v SSHD (2007) (HL) (important case on proportionality principles)
Toussaint v A-G of St Vincent (2007) (PC) (right of access to the court and parliamentary privilege)
R (Greenfield) v SSHD (2005) (HL) (Human Rights Act damages)
R (Smith) v Parole Board (2005) (HL) (common law fairness, not Articles 5 and 6 ECHR requires oral hearing)
BACONGO v Department of Environment No 2 (2004) (PC) (adequacy of environmental impact assessment)
BACONGO v Department of Environment (2003) (PC) (jurisdiction of PC to grant interim injunction in pending appeal)
A-G v Blake (2001) (HL) (confiscation of advance of royalties on autobiography- common law human rights, restitutionary damages, account);
R v Chief Constable West Midlands Police (1994) (HL) (public interest immunity)
Publications
Joint author with Hugh Tomlinson QC:
The Law of Human Rights (Oxford University Press, 3rd edn, forthcoming) - the standard practitioner textbook cited in House of Lords, Privy Council and Supreme Court over 45 times.
Civil Actions against the Police (4th edn, Sweet & Maxwell forthcoming).
The Law of the European Convention on Human Rights: A Practitioner Text (with Sir Nicholas Brazta, former President of the European Court of Human Rights (OUP, forthcoming).
Judicial Review Procedure (2nd edn, Hart Publishing 1997).
Police Actions (2nd edn, Hart Publishing 1997).
Author:
Why Rights Matter (Oxford University Press, forthcoming).
Practice and Procedure at Industrial Tribunals (Legal Action, 1988).
Fees and Feedback
FEES:
Details regarding our approach to fees can be found at the following link: http://www.clerksroom.com/content-html?cid=514
SERVICES:
Please see “profile” tab for a description of the legal services provided by this barrister.
We aim to complete and return all paperwork within 14 days (2 weeks) of receipt if no specific deadline is provided. We can work to much faster timescales if requested or we can agree a specific target date for each individual circumstance. We will always advise at the outset if counsel is unable to meet any deadline.
Each barrister has a standard hourly rate for their work. The individual hourly rate can be agreed when instructions are acknowledged if preferred. We welcome early discussion as to the suitability of a specific barrister for a specific case. The right barrister will have the relevant expertise to deal with the case but will not be too junior, or too senior depending on the complexities.
We aim to allocate all cases to the correct level of experience & seniority which we believe will prove most to be the most cost-effective solution for our clients.
If, due to urgency, we allocate paperwork to a more senior member of Clerksroom, we will charge the appropriate hourly rate for the work, not for the barrister. We welcome early discussion to ensure the correct fee is applied to the case at the outset.
REDRESS:
All our barristers are regulated by the Bar Standards Board (BSB) and hold a current practising certificate, details can be found at the following link Barristers’ Register
Complaints information
If you are not satisfied with the service provided, you can make a complaint to Chambers. Information on the chambers’ complaints procedure is available at the following link: http://www.clerksroom.com/content-html?cid=416
If you are not satisfied with the response you receive from my chambers, you can make a complaint to the Legal Ombudsman. You must contact the Legal Ombudsman either within 6 months following the conclusion of our handling your complaint, within 6 years from the date of the act/omission, or 3 years from the date that you should reasonably have known there were grounds for complaint (if the act/omission took place before the 6 October 2010 or was more than six years ago).
The Legal Ombudsman’s details are as follows:
Legal Ombudsman
PO Box 6806
Wolverhampton
WV1 9WJ
Tel: 0300 555 0333
Email: [email protected]
Web: www.legalombudsman.org.uk
Privacy Notice
1. This is a privacy notice that describes how, why and for how long I will process or keep your personal data in accordance with the General Data Protection Regulation (‘GDPR’).
2. The GDPR governs how an individual’s personal data is used, and your rights in relation to that data.
3. I, Richard Clayton KC, have been instructed by you or your litigation friend (usually a parent), through your solicitor or agent, or via the Bar Pro Bono Unit.
4. It is necessary for me to process your personal data in order for me to provide you with legal services, for example:
· Advise on the prospects of litigation;
· Advise on the value of your claim;
· Representation at a court hearing;
· Representation at trial;
· Advise, review or comment on legal issues or evidence.
5. Processing means anything done to data such as: recording, organising, adapting, altering, copying, consulting, transmitting, combining, erasing or storing it.
6. The processing for the purposes listed above will take place in accordance with either Article 6(1)(a) GDPR or Article 6(1)(b) GDPR, depending on how you instructed me.
7. If you have instructed me on a direct access basis, or engaged a solicitor (or legal agent), to assist you in bringing or defending a claim then the processing is necessary to perform a contract to which you are a party (Article 6(1)(b) GDPR). To give effect to that contract (i.e. to bring a claim) it is necessary for me to process your personal data for litigation purposes.
8. If I am assisting you on a pro bono basis, it will be necessary for me to seek your consent to be able to represent you (Article 6(1)(a) GDPR). In this scenario, you will be sent a consent form.
Recipients of your data
9. I may also be required to share your data with others, depending on the nature of your case. This may include:
(i) Courts and other tribunals to whom documents are presented;
(ii) Your solicitors, or agent representing you, through whom I have been instructed;
(iii) Potential witnesses, experts and other persons involved in the case;
(iv) Solicitors, barristers, or other legal representatives;
(v) Ombudsman and regulatory authorities;
(vi) Education and examining bodies; and
(vii) Current, past or prospective employers.
Special Categories of Data
10. In some cases I will have been given your personal data that is within the ‘special categories’ of data described in GDPR Article 9(1). For example, personal data that reveals your race, ethnicity, sexual preferences, political or religious beliefs, trade union membership or health. There are also restrictions for processing information regarding criminal convictions.
11. This type of personal data will only be processed where it is necessary in order to represent you in your legal claim, or advise on the prospects of a legal claim.
Retention
12. I will retain your personal data for no longer than is necessary, and where it is possible, I will anonymise your data.
13. How long your personal data is kept will depend on a number of factors. The retention period will be reviewed when the service I am providing you with is complete. However in general, I am obliged by the Bar Code of Conduct to retain records of my cases, and by HM Revenue and Customs to retain records for 6 years.
14. Once your case has concluded and fees have been paid, I shall retain only the personal data necessary for the following purposes:
(i) The legal and professional obligation to retain information relating to my cases;
(ii) To check for any potential conflict of interests that may arise in the future when I am instructed on other cases;
(iii) For use in the defence of potential complaints, legal proceedings or fee disputes;
(iv) To refer back to in future cases which raise similar legal, factual, or procedural issues.
15. The processing for the purposes listed in paragraph 14 (ii), (iii), and (iv) above, will take place in accordance with Article 6(1)(f) GDPR. That is, for the purposes of legitimate interests that are not outweighed by your interests or fundamental rights and freedoms.
16. The processing for the purposes listed in paragraph 14(i) above, will take place in accordance with Article 6(1)(c) GDPR. That is, the processing is necessary for me to comply with a legal obligation.
Your Rights
17. Where processing of your personal data was based on your consent (see paragraphs 6 and 8) you have the right to withdraw that consent at any time. This does not affect the lawfulness of the processing based on consent before its withdrawal.
18. Withdrawal of your consent to process such data will most likely mean that I am no longer able to provide you with the legal services you seek.
19. You may request confirmation that your personal data is being processed by me and details about the personal data, the source, the processing, the purposes of the processing, the recipients and the retention period.
20. You may request a copy of your personal data that is being processed by me. You may also request rectification (i.e. correction) where there are inaccuracies in the personal data.
21. You have the right to object, on grounds relating to your particular situation, at any time, to processing of your personal data in paragraph 14 of this privacy notice. Should you object, the processing will only continue where there are compelling legitimate grounds for the processing which override your fundamental rights, freedoms and interests.
22. Where the processing or retention of your data is necessary for the establishment, exercise or defence of legal claims, it will not be possible to object.
23. You have the right to request that your personal data is erased where any of the following apply:
(i) The personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed;
(ii) You withdraw your consent where the basis of processing was based on consent and where there is no other ground for the processing;
(iii) Where your fundamental rights, freedoms and interests override the legitimate interests of processing in paragraph 14;
(iv) The personal data has been unlawfully processed; or
(v) The personal data have to be erased to comply with a legal obligation.
24. You have the right to request that your personal data is restricted from processing, so that it is simply stored, for the following reasons: as an alternative to deletion; so that it can be corrected; for the establishment, exercise or defence of legal claims; to verify if a legitimate ground exists (paragraph 14).
25. Where it is necessary to correct your personal data, or you have requested the restriction or erasure of your personal data, I shall endeavour to contact the recipients of the personal data, unless this involves disproportionate effort.
Security
26. I take appropriate physical and technical procedures to safeguard your personal data to prevent it from being accidentally lost, used or accessed in an unauthorised way. The I.T. systems used by Clerksroom are ISO27001 compliant.
Complaints or Queries
27. If you have any questions regarding this privacy notice, or how I use your personal data please email me: [email protected], or my clerks: mail@clerksroom telephone 01823 247 247.
28. I shall aim to respond as soon as possible, and within 30 days.
29. You have the right to complain to the Information Commissioner's Office (ICO) if you believe I have not handled your request in an appropriate manner. For information on contacting the ICO please go to: https://ico.org.uk/global/contact-us/
