Kerry Bretherton

Introduction & Contact details

Described as “...excellent on her feet” - the Legal 500 (2010) and as being “admired in court”, and "addresses points head on and sticks firmly to her argument" Chambers and Partners (2010) Kerry is equally well known for her scrupulous preparation, common sense and client care.

Kerry was called to the Bar by Lincoln’s Inn in 1992.  She joined Hardwicke in 2000 from a specialist local government and housing set.  During her 11 years at Hardwicke she has built a very successful practice in Public and Property Law.

Kerry’s practice covers 3 key areas: Public Law, Property and Costs.  Her Public law practice includes Adult Social Care, Benefits, Central and Local Government, Community Care, Court of Protection, Discrimination, Education, Equality, Healthcare, Housing, Human Rights, Judicial Review, Mental Health and Regulation. In Property Kerry acts in Commercial Landlord & Tenant, Residential Landlord & Tenant and Real Property.
  
She regularly appears in the Court of Appeal, Administrative Court and Court of Protection, as well as Tribunals often acting against Leading Counsel.  Kerry acts for private law firms, local authorities, charities and voluntary organisations and for the Pro Bono Unit. She accepts direct access work. 

Kerry has been appointed as Panel Counsel for the Equality and Human Rights Commission with effect from February 2011.

Academic

Recent speaking engagements included being invited to be a Panel Member at the Regulation of Care Providers Conference, Chairing a Court of Protection round table discussion on deprivation of liberty, training on practice and procedure in the Court of Protection and being a speaker at annual conferences for both SHLA and HLPA.  Kerry has spoken on Property and Human Rights at the Property Bar Association Mini Conference.

Qualifications

• BA (Hons)
• CPE

Appointments

• 2011: Approved Counsel for the Equality and Human Rights Commission
• 2009: Elected to Bar Council for 3 year term

Professional Associations

• Member of Bar Council
• Administrative Law Bar Association
• Human Rights Lawyers Association
• Mental Health Lawyers Association
• Property Bar Association
• Social Housing Law Association 
• HRLA
• MHLA

T:       020 7242 2523 (switchboard)
DDI:    020 7691 0042
F:       020 7691 1234
E:       kerry.bretherton@hardwicke.co.uk

Public Law

Allocations & Homelessness

Kerry is recognised for her wealth of experience in this area which has led to her being recognised as a leading junior in this area.  She can provide immediate advice on all aspects of homelessness and allocations.  Her work includes judicial review relating to Part 6 and parts of Part 7 Housing Act 1996 and statutory and interim appeals to the County Court and she is currently involved in a case concerning “gate-keeping”.

Examples of Cases include:

Bull v Oxford City Council [2011] EWCA Civ 609
Kerry and her junior (Andrew Lane) succeeded in the Court of Appeal in persuading the Court to dismiss an appeal brought by the Council on priority need because the occupation of children in interim accommodation was relevant to that issue.  The appeal succeeded in relation to intentional homelessness.

Hemans v Royal Borough of Windsor and Maidenhead [2011] EWCA Civ 374 
Kerry succeeded in the Court of Appeal on a challenge to a review decision of whether it was reasonable for a wife to continue to occupy accommodation.  The Court of Appeal did not accept that a husband was homeless because he did not have a right of occupation in relation to accommodation occupied by his wife.

Waltham Forest LBC v Davis Maloba & Law Society (Interested Party) [2008] 1 WLR 2079
Kerry acted for the local authority.  The Court of Appeal held that elements of the definition of homelessness had to be construed purposively.  Costs in homelessness appeals were also considered.

Houda Harouki v Kensington & Chelsea RLBC [2008] 1 W.L.R. 797
Kerry acted for the applicant. The Court of Appeal held that a family which was overcrowded to an extent that a criminal offence was committed under the Housing Act 1985 was nonetheless not homeless.
 
Osseily v Westminster CC [2007] EWCA Civ 1108
Kerry acted for the applicant.  The Court of Appeal held that there was no continuing duty to keep occupation open for an application seeking assistance under Part VII Housing Act 1996.

Benefits, War Pensions & Social Welfare

Kerry is regularly instructed to advise in claims relating to complex welfare benefit issues.  Kerry has advised on multi-faceted housing benefit issues and on funding issues relating to residential care homes.  Arguments she raised in relation to the questions of housing benefit in relation to residential care homes in G v E  are being considered by such homes and, it is understood by local and central government.

Cases Pending:

Brough v Law
Kerry is instructed through the Bar Pro-Bono Unit on behalf of the Appellant and has applied for permission from Court of Appeal in relation to an issue arising from conflicting decisions of the Commissioners in relation to child benefit.

Reported Cases:

R (on the Application of Viggers) v Secretary of State for Defence [2009] EWCA Civ 1321
Kerry acted for the Appellant, a former service man, and succeeded in appealing against a decision of the Administrative Court dismissing his claim for judicial review in relation to the assessment his level of disability for the purpose of awarding a war pension.

Best v Oxford City Council [2009] EWHC 608 (Admin)
The case concerned arguments that the local authority were obliged to provide suitable accommodation which was affordable having regard to the applicant’s ineligibility for housing benefit.

Care Homes

Kerry acts in all matters concerning Care Homes ranging from provision of funding to residents, third party top ups, enforcement by local authorities against property, challenging funding cuts, DOLS (see more detail under Court of Protection), placements, discrimination and matters of regulation.  She is currently involved in a challenge to a blanket reduction in funding for a group of care homes.

Central & Local Government

Kerry acts for and against s a variety of clients in the field of social benefit, housing and administrative law. She acts for and against local authorities and has acted against central government.

Relevant Cases:

R (on the Application of Viggers) v Secretary of State for Defence [2009] EWCA Civ 1321
Kerry acted for the Appellant, a former service man, and succeeded in appealing against a decision of the Administrative Court dismissing his claim for judicial review in relation to the assessment his level of disability for the purpose of awarding a war pension.

Olubukola Savage v Hillingdon London Borough Council [2010] EWHC 88 (Admin)
In which Kerry succeeded for the applicant in establishing that the local authority had acted unlawfully in relation to the provision of advice and assistance to the applicant.

R (On the application of W) v Sheffield CC [2005] EWHC 720 (Admin)
Argued before Gibbs J, in which it was held that the applicant was seriously vulnerable and there was  incontrovertible evidence that his only support was in Westminster. As either Sheffield or Westminster needed to accommodate they needed to co-operate and a preliminary order pending a decision in the County Court was made.

R v Newham LBC ex parte Denise Joanne Morris [2002] EWHC 1262 (Admin)
Argued before Jackson J in which a claim for damages for alleged breach of statutory duty failed.

Williams v Southwark LBC (2000) LGR 646
Argued before Lightman J (led by Andrew Arden QC) in which it was held that a council did not have to account for sums, received from insurers, which were payable for services rendered by it in the administration of claims made under those policies.

Community Care

Kerry is involved in all aspects of Community care including actions for and against Local Authorities and Primary Care Trusts.  This includes issues such as the provision of care plans, protection of vulnerable adults (POVA), capacity and associated issues, services for the disabled and associated discrimination issues, claims pursuant to the Children Act 1989 and all matters relating to funding.

Kerry’s strength in this area arises from the natural overlap between this area of her practice and others.  She is able to provide comprehensive advice in relation to the range of issues associated with community care and the overlap into matters of housing and benefits.

Kerry is experienced in assisting in relation to challenges by way of judicial review to the Administrative Court, appeals to the Court of Appeal, applications to the Court of Protection, civil claims and complaints to the Ombudsman where maladministration has occurred.

Recent cases of note include:

R (on the application of Nassery) v Brent London Borough Council [2011] EWCA Civ, 539 and [2010] EWHC 2326 Admin 
The issue before the Court of Appeal was whether an ongoing mental condition with sporadic but extreme symptoms did give rise to a need for care and attention within the meaning of the National Assistance Act 1948.  Funding is being sought for an application for permission to appeal to the Supreme Court.

Education

Kerry acts in the full range of Education matters including admissions, discrimination, exclusions, equality, school organisation and transport. Kerry has advised on a number of complex and difficult cases and achieved a commendable degree of success in such cases.  Ongoing work includes a matter engaging issues under the Equality Act 2010.  Kerry appeared in the Court of Appeal in R v University of the West of England ex p M [2001] ELR 458

Equality & Discrimination

Kerry is experienced in all areas of equality and discrimination law.  She succeeded in the Court of Appeal in the case of Brent v Corcoran and O’Donnell [2010] EWCA Civ 774; [2010] H.L.R. 43; in which the Court of Appeal rejected the argument that race relations duties created personal obligations rather than general duties. Kerry also acted in Stokes v Mayor and Burgesses of the London Borough of Brent [2009] EWHC 1426 (QB) in which the High Court rejected the argument that the Council were racially discriminating and or acting in breach of the human rights of a traveller.

Kerry is experience in dealing with claims for damages in relation to breach of duties in relation to equality and discrimination claims and dealing with the public law aspects of such issues.

EU Law

Kerry has experience in EU Law. She has appeared in the Court of Appeal in a case involving free movement of workers.

Relevant Cases:

Mohammed Barry v Southwark LBC [2008] EWCA Civ 1440
Case heard before Arden L.J. Thomas L.J., Lloyd L.J. in which it was held that two weeks employment qualified a Dutch citizen as a “worker” under the Immigration (European Economic Area) Regulations 2006.

Human Rights & Civil Liberties

Kerry’s cases frequently feature domestic human rights law and the application of International Treaties such as the European Convention for the Protection of Fundamental Human Rights.  Kerry’s experience of dealing with such issues includes the Court of Appeal and Administrative Court.

Professional Discipline & Regulation

Kerry advises on all aspects of the law relating to professional conduct and accepts instructions from a varied array of clients.

Court of Protection

Court of Protection work forms a large part of Kerry’s practice.  Kerry is very experienced in all matters in the Court of Protection including capacity, appointment of and removal of a Deputy for personal welfare and property, deprivation of liberty/DOLS/Article 5, equality, medical treatment, residence and funding issues, reporting restrictions, damages and costs.  She acts for those without capacity, their family members and for local authorities.  Her experience in this area is such that she is able to respond extremely quickly to the complex and serious issues arising in such cases.  Kerry often provides training in relation to this area.

Recent cases of note include:

G v (1) E (By his Litigation Friend The Official Solicitor) (2) A Local Authority (3) F  [2010] EWCA Civ 822; [2010] 4 All E.R. 579; [2011] 1 F.L.R. 239 [2010] EWCA Civ 822 and, at first instance (2010) 2FLR 294 in which many issues were considered including:

• whether the Mental Capacity Act 2005 met the requirements of Article 5
• whether there could be interim deprivations of liberty
• whether DOLS applied in cases where a residential care home purported not to provide accommodation
• the test for appointment of Deputies

G v E [2010] EWHC 2042 in relation to the issue of anonymity and reporting restrictions in the Court of Protection

G v E (costs) [2010] EWHC 3385 (Fam), [2011] 1 FLR 1566 in which the Court of Protection considered the basis on which a party could be required to pay costs arising from the conduct of the litigation.  An appeal to the Court of Appeal is pending.

G v E [2010] EWHC 2512 (COP) in which the Court of Protection considered the principles on which the Court would appoint a Deputy.

Property & Private Client

Landlord & Tenant - Commercial

Kerry accepts instructions in all matters of commercial landlord and tenant including: forfeiture, dilapidations, applications under the 1954 Act, rent reviews, disputes about management agreements and matters relating to insolvency.

Land & Real Property

She has significant experience of rent review and all aspects of real property including easements, boundaries, trusts of land, leasehold enfranchisement, adverse possession and equitable remedies.

Trusts of Land

Kerry has wide experience of all matters concerning trusts of land and TOLATA whether arising out of breakdown in family relationships or business ventures.  She is instructed in the most complex disputes and has an impressive record of success in such cases.

Relevant cases:

Alexander-David v Mayor and Burgesses of the London Borough of Hammersmith and Fulham [2009] EWCA Civ 259
Kerry succeeded in the appeal in the Court of Appeal.  The issue was whether the purported grant of a tenancy to a minor operated such that the tenancy was held in trust for the minor or whether the Council had granted an equitable tenancy and whether the Council was in breach of trust in serving a notice to quit.

Maguire v Maguire
Pending in the Court of Appeal concerning a trust of land arising from a dispute between brothers.

COSTS

Kerry advises on all matters relating to costs, including issues relating to the validity and operation of CFAs.

Relevant Cases:

Birmingham City Council v Rose Forde
Case pending against the decision of Christopher Clarke J [2009] EWHC 12 (QB). The case concerns questions as to the enforceability of conditional fee agreements which are retrospective, and of retrospective success fees.

Birmingham CC v Avril Lee [2008] EWCA Civ 891
Led by Guy Mansfield QC, before Thomas LJ, Hughes LJ, and Rimer LJ.
Held that costs incurred under the protocol prior to allocation were recoverable but that it was not appropriate to address this issue at trial.

Professional Negligence

Kerry has a wide experience of advising in relation to and acting in a broad array of actions both for and against solicitors, surveyors, valuers and other property professionals.

Social Housing

Kerry is experienced in all matters of residential landlord and tenant and is consistently ranked as a leading junior in relation to social housing.  She regularly appears in the Court of Appeal, High Court, County Courts and Leasehold Valuation Tribunal in relation to the full range of issues involved including anti-social behaviour, possession cases, right to buy, service charges succession, breach of covenant, and disrepair (the public law element of Social Housing and Kerry’s Administrative Court work is addressed under the heading of Allocations and Homelessness above).  Kerry acts for local authorities, housing associations, tenants and applicants.  Kerry regularly provides training in this area and, in December 2010 spoke at both SHLA and HLPA conferences.

Relevant Cases:

Berrisford v Mexfield Housing Co-operative limited [2011] UKSC 52

London Borough of Hackney v Findley [2011] EWCA Civ 8
Kerry succeeded in the Court of Appeal.  The Court of Appeal held that CPR 39.3 should normally be applied in cases where there was an application to set aside a possession order made in the absence of the tenant. 

Ruza Berrisford v Mexfield Housing Co-operative [2010] EWCA Civ 811
Kerry (leading Laura Tweedy) succeeded in the appeal brought by Miss Berrisford in relation to the issue of whether a notice to quit could determine a tenancy granted by a fully mutual housing co-operative.  The Supreme Court have granted permission to appeal and the appeal is listed for October 2011.

Octavia Housing Trust v Brumby [2010] EWHC 1793
Concerning a landlord’s liability to tenants caused a nuisance by visitors to other occupants of a block of flats.  Application for permission to appeal pending in the Court of Appeal.

Ryan v London Borough of Islington [2009] EWCA Civ 578
The case concerned the question of whether notices served in accordance with the Right to Buy procedure were valid.

Alexander-David v Mayor and Burgesses of the London Borough of Hammersmith and Fulham [2009] EWCA Civ 259
Kerry succeeded in the appeal in the Court of Appeal.  The issue was whether the purported grant of a tenancy to a minor operated such that the tenancy was held in trust for the minor or whether the Council had granted an equitable tenancy and whether the Council was in breach of trust in serving a notice to quit.

In terms of LVT cases, a recent example of Kerry’s work in this area is of a case in which she acted for a local authority landlord on the question of whether costs were recoverable as a matter of construction.  Reasonableness issues also arose.