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Richard O'Brien

Call: 2005

Richard practices in the fields of commercial law, professional liability and public law.

Commercial and Professional Liability

Richard has a busy practice in Chambers' core areas of commercial litigation and professional liability. In the commercial sphere he has particular experience of banking, including advising on a claim against a large investment bank in connection with its financing of a corporate acquisition and a separate claim against an investment bank for premature receivership of a borrower's properties.

Current commercial cases include:

  • a negligent investment advice claim against well-known private bank
  • claim by customer of bank to recover property sale proceeds applied to reduce unrelated debts under a cross-guarantee
  • breach of trust/knowing receipt claim in relation to unlawful disposal of shares in a property-owning offshore company
  • claim against property developer under oral loan agreement and guarantee
  • claim against top 4 accountancy firm in relation to a £500m corporate acquisition

In Richard's professional negligence practice, he regularly acts for and against solicitors, surveyors, accountants, architects, auditors, barristers, construction professionals, financial practitioners and insurance brokers. He also has a particular interest in Ombudsman and compensation schemes (Legal Ombudsman, Financial Ombudsman Service, Financial Services Compensation Scheme) which adjudicate on professional services. He is the editor of the chapter "Human Rights and Judicial Review in Professional Liability" in Jackson & Powell on Professional Liability.

Current professional liability cases include:

  • defending a barrister in a negligence claim arising from Proceeds of Crime Act (POCA) confiscation proceedings following the client's conviction for trademark offences; Richard has particular expertise in POCA. He has previously represented criminal solicitors sued by a convicted fraudster for failing to advise on the extent of assets falling within the scope of POCA.
  • solicitors negligence claim in relation to alleged misadministration of an estate; includes application for civil restraint order
  • conveyancing negligence claim concerning bridging loan to trustees of a church
  • judicial review claim against Financial Services Compensation Scheme concerning refusal of claim on ground that advice given by an unregulated non-UK sister company of a regulated firm
  • claim against Financial Ombudsman Service ("FOS") on jurisdictional point concerning whether a complainant bringing FOS claim in incorrect capacity is an "eligible complainant"
  • claim against FOS concerning whether FOS must consider a "break in the chain of causation defence"

Public Law and Human Rights 

Richard has a successful public law and human rights practice, and is recognised as a Leading Junior in Administrative & Public Law in the Legal 500 directory. He was appointed to the Attorney-General’s Panel of Approved Counsel (B-Panel) in 2013, and before that to the Attorney-General’s Freedom of Information Panel in 2010 and to the C-Panel in 2009. He regularly acts for and against government departments and local authorities, as well as in judicial review claims against the Legal Ombudsman, Financial Ombudsman Service and Financial Services Compensation Scheme. He is praised for his “crisp and impressive drafting style” and “incisive tactical view” (Legal 500, 2015). He has particular experience in immigration, including business immigration, and also in national security matters.

Current cases include:

  • R (Paramjit Kaur) v Secretary of State for the Home Department, C4/2015/0549: Appeal to Court of Appeal against decision quashing Secretary of State's refusal to grant Indian national leave to remain in the UK. The issues include the meaning of "insurmountable obstacles" to continuing family and private life in the country of origin (under EX/.1(b) of Appendix FM of the Immigration Rules) and of the meaning of the test of "no ties" to the country of origin (under Rule 276ADE(vi) of the Immigration Rules).
  • HF (Afghanistan) v Secretary of State for the Home Department, C5/2014/3569: Appeal to the Court of Appeal by an Afghan asylum-seeker against conclusion that it was reasonable to relocate to Kabul.
  • Masood Khan v Secretary of State for the Home Department, C/2014/4275: Another appeal to the Court of Appeal by an Afghan asylum-seeker, on ground that the Upper Tribunal was wrong to hold he was not at risk of retaliation by the Taliban.
  • AR, IG and JM v Secretary of State for the Home Department, SN/17, 20 and 21/2015: Immigration appeal against refusal of naturalisation. Being heard in the Special Immigration Appeals Commission.
  • Bulk Personal Data - challenge by Privacy International to the lawfulness under Article 8 ECHR of the Security and Intelligence Agencies' acquisition and use of personal datasets and communication data in bulk for intelligence purposes. Judgment on domestic and ECHR lawfulness given on 17 October 2016: [2016] UKIPTrib 15_110-CH. EU law and issues of proportionality to be determined at hearing in 2017.
  • Privacy International and others v FCO and GCHQ: Challenge to the lawfulness of alleged malicious software ("malware") programmes brought following media reporting deriving from Edward Snowden (acting for Respondents).
  • R (Bank Mellat) v FCO, CO/1733/2014: Challenge to UK Government support for EU sanctions against an Iranian bank suspected of facilitating the Iranian nuclear weapon programme. Acting for FCO.
  • Belhaj v Straw and others, HQ12X02603: Acting for the individual and Government Defendants in claims brought by the former leader of the Libyan Islamic Fighting Group alleging complicity in extraordinary rendition.
  • Several cases defending challenges to legal aid reforms, including: R (Ben Hoare Bell) v The Lord Chancellor, CO/2770/2014: Decision to remunerate legally aided solicitors acting in judicial reviews only where permission is granted; R (Howard League for Penal Reform) v The Lord Chancellor, CO/16747/2013 and CO/17190/2013: reforms to prison law legal aid, currently on appeal to the Court of Appeal; R (Ryder) v Lord Chancellor, CO/851/2014: reforms to prison law legal aid (Article 5/14 challenge).
  • R (Ralli Solicitors) v Legal Ombudsman, CO/17464/2013: Acting for claimant firm challenging a substantial reduction in its fees by the Legal Ombudsman after the successful conduct of its client's employment claim.
  • R (Sud) v Legal Ombudsman, CO/2762/2012: Acting for claimant in successful judicial review of a determination of the Legal Ombudsman.
  • R (Warren) v Financial Services Compensation Scheme, CO/15270/2013: Acting for claimant in challenge to FSCS award in respect of a claim against insolvent insurance brokers.
  • R (Kuteh) v Secretary of State for Education, C3/2013/3571: Appeal before Court of Appeal against listing of mental health nurse on the Adults' and Children's Barred Lists. Concerns mislaid eyewitness evidence disputing version of events which led to listing. Acting for the claimant nurse.
  • Nottingham City Council v Persons Unknown, A01NG200, proceedings for an injunction against unidentified illegal street traders.
  • Kamoka v Security Service and others, HQ13X00363: Acting for Government departments sued by several Libyans for allegedly unlawful detention, asset freezing and complicity in detention and torture.
  • Geloo v Attorney-General (on behalf of Security Service and Secret Intelligence Service), HQ12X04641: Acting for Government departments sued by a British citizen for alleged complicity in detention and mistreatment in Saudi Arabia.

Recent reported cases include:

  • R (LCCSA and CLSA) v The Lord Chancellor [2014] EWHC 3020 (Admin): A challenge to the consultation process leading to the decision to open the criminal legal aid solicitors market to competitive tendering. Acting for the Lord Chancellor.
  • R (Howard League for Penal Reform) v The Lord Chancellor [2014] EWHC 709 (Admin): Acting for Lord Chancellor successfully resisting challenge to prison law legal aid reforms. Currently on appeal to the Court of Appeal.
  • R (BB) v Special Immigration Appeals Commission [2012] EWCA Civ 1499; [2013] 1 WLR 1568: Applicability of Article 6 of the ECHR (right to a fair trial) to bail proceedings before SIAC. Led by Robin Tam QC.
  • R (Western Governors Graduate School) v Secretary of State for the Home Department [2013] EWCA Civ 177; [2013] All ER (D) 80 (Mar): Lawfulness of "bright line"  criterion for determination of Tier 4 Sponsor College licence application.
  • R (Kuteh) v Upper Tribunal (Administrative Appeals Chamber): [2012] All ER (D) 58 (Jun); EWHC 2196 (Admin). First successful application of Cart criteria for review of unappealable decisions of the Upper Tribunal. Cited in Fordham's Top 50 Public Law cases of 2012.
  • R (Central London College) v Secretary of State for the Home Department [2012] EWHC 1273 (Admin): Successful defence of Home Secretary's decision to revoke the Tier 4 sponsor licence of an educational college.

Richard has a particular interest and expertise in the developing areas of: judicial reviews of the decisions of ombudsmen (particularly the FOS, FSCS and LeO); and claims against public authorities for infringement of Article One of the First Protocol (“A1P1”) of the European Convention on Human Rights (the right to possessions) and any other cases where public and commercial law intersect.

Richard has Developed Vetted security clearance.

He is also committed to pro bono work, acting for both individuals and organisations. In 2013 he was nominated for the Bar Pro Bono Award. In 2012 he successfully acted for an athlete seeking British nationality in order to compete for the UK in London Olympics.

Education, Scholarships and Appointments

Richard gained the highest first in his subject at Oxford, as well as Magdalen College scholarships and tutorial prizes. He went on to receive an MPhil. He came first in his year at Bar School in Advocacy and won several scholarships, including the Lord Mansfield, Hardwicke, CPE and pupillage scholarships. He was the Judicial Assistant to the Master of the Rolls in January-March 2008.

Publications and Professional Memberships

Richard is an editor of Jackson & Powell on Professional Liability and has also contributed articles to Judicial Review (Hart Publishing). He frequently lectures on topics relating to his practice. Richard is a member of the Professional Negligence Bar Association, COMBAR and the Administrative Law Bar Association.

Click here to read Richard's recent talk on The Legal Ombudsman scheme.

Click here to read Richard's recent article on the R (Layard Horsfall Ltd) v Legal Ombudsman case

Education

B.A., MPhil (Oxon), C.P.E. (City)