Raphael Hogarth

Raphael has acted for individuals, private companies, non-governmental organisations, central government departments, regulators and local authorities in public law disputes.

He has extensive experience of working on strategic litigation, including obtaining costs-capping orders in public interest proceedings and advising on the interplay between judicial review and wider campaigning strategy.

He is also particularly interested in the use of public law to advance and defend commercial interests, and has acted in several disputes in which commercial entities have challenged regulatory decisions, procurement processes or subsidy-related decisions.

Recent highlights include:

• R (Independent Workers’ Union of Great Britain) v Central Arbitration Committee (Interested Party: Deliveroo) UKSC 2021/0155 – acting for Deliveroo in a Supreme Court appeal about whether collective bargaining legislation breaches riders’ rights under Article 11 ECHR. This is one of The Lawyer’s Top 10 appeals of 2023.
• R (Gardner & Harris) v Secretary of State for Health and Social Care [2022] EWHC 967 (Admin) – acted for the successful Claimants in a judicial review of the government’s decisions in relation to care homes during the first wave of the pandemic. This was one of The Lawyer’s Top 20 cases of 2022.
• R (Good Law Project) v Secretary of State for Health and Social Care (Pharmaceuticals Direct Limited) UKSC 2022/0082 – acting for the Appellant in a Supreme Court appeal about service in judicial review proceedings.
• R (A and others) v Secretary of State for the Home Department [2022] EWHC 360 (Admin) – acted for the successful Home Secretary in a challenge to the government’s flagship asylum reforms.
• R (Good Law Project) v Prime Minister & Others [2022] EWCA Civ 1580 – acted for the Claimant in an appeal concerning the use of private email accounts and phones for government business.
• In the matter of the Prime Minister – instructed by the Good Law Project, with Jason Coppel KC, to advise on the Parliamentary process for disciplining MPs following the announcement that Boris Johnson had been fined for a lockdown breach (published here), and then on the procedure for the Privileges Committee’s inquiry into Boris Johnson (published here).
• R (Good Law Project) v Secretary of State for Health and Social Care (Interested Parties: (1) Bunzl (2) Tulchan Communications (3) Lord Feldman) HT-2021-000223 – acting for the Claimant in a judicial review of the award of a high-value PPE contract to a firm with links to the former chair of the Conservative Party, having successfully obtained a costs-capping order [2022] EWHC 2888 (TCC).

Raphael also frequently deals with public law issues arising in a local government or education context: see ‘Local Government’ and ‘Education Law’ sections below.

Raphael is frequently instructed in data protection, privacy, technology and information law matters.

Recent experience in the data protection and privacy field includes:

• Clearview AI v Information Commissioner (EA/2022/0165/FP) – acting for a US facial recognition company in this high-profile challenge to enforcement and penalty notices issued by the Commissioner for alleged breaches of the GDPR and UK GDPR.
• Proceedings against a social media company – advice to a platform in relation to proceedings for alleged breaches of data protection legislation.
• Threatened class action against a technology company – instructed in relation to a threatened class action against a company in the artificial intelligence sector for alleged data breaches.
• Company’s handling of communications data – advice on businesses’ duties in respect of requests and demands for communications data by the intelligence/security services or police made under the Investigatory Powers Act 2016.
• Local government privacy dispute – instructed by a local authority in relation to a complex and long-running dispute with public officials concerning alleged breaches of their privacy in disclosures to the press.
• Fraser v Equinox Kensington Ltd (2204802/20) – acted for the successful Respondent in this employment dispute arising out of an alleged breach of the employer’s data protection policy.
• Advising and acting for the Information Commissioner in relation to various enforcement action under data protection legislation.
• Advising and acting for controllers in relation to data breach proceedings before the civil courts, and other contentious data protection issues.

Recent experience in the Freedom of Information field includes:

• Ingle v Information Commissioner and Cambridgeshire County Council [2023] UKUT 80 (AAC)  – acted for the successful Information Commissioner in an Upper Tribunal appeal concerning the personal information exemption under FOIA.
• Cabinet Office v Information Commissioner and Tommy Sheppard MP (UA-2021-000017-GIRF) – acting for Tommy Sheppard MP in an Upper Tribunal appeal concerning a request for polling information on attitudes to the Union.
• R (Good Law Project) v Prime Minister & Others [2022] EWCA Civ 1580 – acted for the Claimant in an appeal concerning the use of non-government communications systems such as WhatsApp for government business, including on the basis that such use hinders the effective operation of FOIA.
• Acting for requesters and the Information Commissioner in several appeals before the First-tier Tribunal.

Advising several public authorities on complex or politically sensitive FOIA matters.

Raphael accepts instructions across the full range of commercial and statutory employment matters.

Recent highlights in the appellate courts include:

• R (Independent Workers’ Union of Great Britain) v Central Arbitration Committee (Interested Party: Deliveroo) UKSC 2021/0155 – acting for Deliveroo in a Supreme Court appeal about collective bargaining rights. This is one of The Lawyer’s Top 10 appeals of 2023.
• Boydell v NZP Ltd [2023] EWCA Civ 373 – acted for the successful employer in proceedings to restrain a departing employee from breaching non-compete, non-deal and non-solicit clauses.

Raphael also regularly appears in the Employment Tribunal, acting in unfair dismissal, discrimination and other statutory claims. He is frequently instructed from an early stage in proceedings in order to advise on tactical issues. Raphael’s recent Tribunal experience includes:

• Fraser v Equinox Kensington Ltd (2204802/20) – acted for the successful Respondent in this four-day race discrimination and unfair dismissal trial concerning an alleged breach of the employer’s data protection policy.
• X (a sales executive) v Y (a technology corporation) (ongoing) – acting for the Respondent in ongoing disability discrimination proceedings.
• X (a technology executive) v Y (a med-tech startup) (2022) – acted for the Respondent in sexual orientation discrimination and unfair dismissal proceedings.
• X (a warehouse operative) v Y (a major retailer) (2022) – acted for the Respondent at a successful judicial mediation in pregnancy discrimination proceedings.
• X (a care worker) v Y (a local authority) (2022) – acted for the Respondent in disability discrimination proceedings.

Raphael has a busy local government practice. Recent experience includes:

• R (Cakebread-Snow) v Manchester City Council CO/2905/2022 – acted unled for the successful authority in this judicial review concerning the extent of the Council’s duties to enforce the ‘smoking ban’ in social housing.
• R (Bookless and Bookless) v Local Government and Social Care Ombudsman and Uttlesford District Council CO/3786/2022 – acting unled for the Ombudsman in this judicial review concerning alleged maladministration in the compulsory purchase of residential property.
• Acting for a group of local authorities in a commercial public law dispute concerning a broadband roll-out plan.
• Acting for a major city council in a commercial public law dispute concerning the level at which care home fees were set for the financial year.
• Contentious or politically sensitive Freedom of Information Act or data protection matters (see ‘Information and Data Protection’ section above).
• Education matters, including EHC Plan appeals and school transport issues (see “Education” section below).
• Community care matters, including ordinary residence submissions to the Secretary of State.
• Advisory work on governance and constitutional issues.

Raphael accepts instructions from economic operators and authorities.

In the procurement sphere, he has experience of acting in civil proceedings before the Technology and Construction Court and judicial review proceedings before the Administrative Court.

Raphael also accepts instructions in subsidy control matters, including advisory work and judicial reviews of subsidy control decisions before the Competition Appeal Tribunal. He has delivered training for public bodies on the new subsidy control regime and has significant experience of bringing and defending judicial review challenges (see ‘Public Law’ section above).

Recent highlights include:

• Consultant Connect Limited v (1) NHS Bath ICB (2) NHS Gloucestershire ICB and (3) NHS Bristol ICB (Interested Party: Monmedical Limited) [2022] EWHC 2037 (TCC) – acted for the successful Claimant in this wide-ranging public procurement challenge, in which the Court made the first ever contract shortening order upon finding several breaches of the Public Contract Regulations 2015.
• R (Good Law Project) v Secretary of State for Health and Social Care (Interested Parties: (1) Bunzl (2) Tulchan Communications (3) Lord Feldman) HT-2021-000223 – acting for the Claimant in a judicial review of the award of a high-value PPE contract to a firm with links to the former chair of the Conservative Party, having successfully obtained a costs-capping order [2022] EWHC 2888 (TCC).
• R (Good Law Project) v Secretary of State for Health and Social Care (Pharmaceuticals Direct Limited) UKSC 2022/0082 – acting for the Appellant in this Supreme Court appeal about extending time in a claim for breaches of the Public Contract Regulations 2015.

Raphael accepts instructions from local authorities, schools, universities, parents, students and education campaigners.

His recent experience includes:

• Acting for a Russell Group university in a public law dispute with a former student about an exclusion for ‘contract cheating’.
• Acting for a student in a public law dispute with a university about its approach to a complaint of religious discrimination.
• Acting for an inspectorate in a dispute with an education provider about the legality of an inspection report.
• Acting for a campaigning NGO in a dispute with a university concerning its equality policies, in particular in relation to transgender issues.
• Advising an NGO on reforms to higher education regulation.
• Advising a local authority on an application for assistance with boarding school charges.
• Advising a local authority on the legality of changes to its school transport policy, and compatibility with its human rights and equality law obligations.
• Acting for a local authority in a complex challenge to an Education and Healthcare Plan, dealing with expert evidence concerning the efficacy of ‘Applied Behavioural Analysis’ in educating autistic children.