Ben Jaffey

Ben has a wide-ranging public law practice. He appears for and advises claimants and defendants, including companies, central government, local authorities, public interest groups, individuals and regulators. He was appointed to the Attorney General’s B Panel in February 2008. He is currently instructed in several cases concerning UK involvement in “extraordinary rendition” and torture.

• R (Binyam Mohamed) v Foreign Secretary [2010] EWCA Civ 65
  Successfully acted for British resident detained in Guantanamo Bay in seeking disclosure of evidence held by the British Security Service that he was tortured.
• R (E) v JFS [2010] 2 WLR 153
  Acted for the Chief Rabbi and the United Synagogue in Supreme Court race discrimination challenge to the admissions criteria for the Jews’ Free School.
• R (Madni) v Foreign Secretary (2010)
  Acting for victim of ‘extraordinary rendition’ who was transported via Diego Garcia in the British Indian Ocean Territory. Claim for disclosure of information from Foreign Secretary.
• R (Reprieve) v Prime Minister (2010)
  Acting for Reprieve in challenge to government policy on the interrogation of detainees abroad.
• R (Rahmatullah) v Secretary of State for Defence (2010)
  Acting for current detainee at Bagram Air Force Base, Afghanistan in claim seeking information about his detention by British Forces in Iraq.
• Northern Rock [2009] EWHC 227 (Admin)
  Acted for Legal & General in judicial review challenge to the compensation rules applying to shareholders of Northern Rock.
• R (Corner House Research & Campaign Against Arms Trade) v Serious Fraud Office [2009] 1 AC 756, House of Lords
  Acted for the Claimants in judicial review challenge to the Serious Fraud Office’s decision to halt the bribery investigation into BAE Systems and the Saudi Al-Yamamah defence contracts. Decision being appealed by the SFO to the House of Lords.
• Export Credits Guarantee Department v Friends of the Earth [2008] EWHC 638 (Admin)
  Successfully acted for Friends of the Earth resisting appeal brought by the ECGD in relation to disclosure of environmental information about the Sakhalin II oil project.
• R (TC Projects) v Newcastle Justices [2008] EWCA Civ 428
  Acted for Claimant in challenge to the correct test for granting casino licenses under the Gaming Act 1968.

Costs Litigation

Ben has appeared in many of the leading cases dealing with protective costs orders and the grant of public funding.

• R (Corner House Research) v Secretary of State for Trade and Industry [2005] 1 WLR 2600
  Leading case on protective costs orders in judicial review. The Court of Appeal reformed the rules relating to costs in judicial review cases. Successful challenge to anti-bribery and anti-corruption procedures introduced by the Export Credit Guarantee Department. 
• R (Compton) v Wiltshire PCT [2009] 1 WLR 1436
  Successfully acted for the Public Law Project in the Court of Appeal as intervener in test case to clarify the law on Protective Costs Orders.
• In re appeals by Governing Body of JFS and others [2009] 1 WLR 2353 (Supreme Court)
  Successfully acted for United Synagogue in resisting application for a protective costs order in the Supreme Court. Leading case on the availability of legal aid on appeal.
• R (VM) v Legal Services Commission (2010)
  Acted for Claimant in challenge brought under the Legal Aid Directive to obtain UK legal aid for residents in other EU countries.

Other Cases

• B v BAA Plc [2005] IRLR 927, Employment Appeal Tribunal.
  Leading decision on national security dismissals. Right to dismiss on grounds of national security read down in accordance with Article 6 of the European Convention on Human Rights.
• R (Brooke) v Parole Board & Secretary of State for Justice (2007)
  Junior counsel for the Parole Board in challenge to independence and impartiality of the relationship between the Board and the Secretary of State.
• R (Association of British Civilian Internees – Far East Region) v Secretary of State for Defence [2003] QB 1397, Court of Appeal.
  Challenge to the refusal of compensation to British subjects interned by the Japanese during the Second World War without a “bloodlink” to the UK.
• Secretary of State for Defence v Hulme [2003] EWCA Civ 1611, Court of Appeal
  Standard of proof for claims under the Armed Forces Pension Scheme.
• R (Agnello/A1 Veg) v LB Hounslow [2003] EWHC 3112 (Admin), High Court
  Bias and fairness issues relating to the redevelopment of Western International Market.
• R (Greenpeace and Friends of the Earth) v Secretaries of State (2001) 50 EG 91 (CS), The Times 25.2.02, Court of Appeal
  Challenge to the lawfulness of operating the new Sellafield mixed oxide nuclear fuel fabrication plant.

Ben also has an interest in social security and welfare benefits law. He regularly acts for individual claimants and government departments. He appeared in the Court of Appeal (with Nigel Pleming QC) in Yildiz v Secretary of State for Social Security (2001) 13 IJRL 230, a case concerning the entitlement to income support of asylum seekers.  Ben appeared in the Court of Appeal (led by John Howell QC) in Gingi v Secretary of State for Work and Pensions [2002] EuLR 37, an EU law challenge to the interpretation of the ‘habitual residence test’ applied to income support claimants.  Ben was also instructed in the Court of Appeal (led by Richard Drabble QC) in Wood v Secretary of State for Work and Pensions [2003] EWCA Civ 53, The Times 11.2.03, a leading case concerning the circumstances in which an award of benefits may be changed or ended by the Secretary of State.

Ben has an extensive regulatory law practice and has considerable experience before numerous regulatory tribunals, including the Financial Services and Markets Tribunal and the Pensions Regulator Tribunal.

Ben is currently instructed by financial institutions and individuals in relation to allegations of market abuse, PPI mis-selling endowment mis-selling, improper financial engineering in reinsurance treaties, pension funding issues and breaches of systems and controls requirements. Many of these cases are confidential and cannot be referred to here.

Ben also has extensive experience of healthcare regulation. He appeared for CHRE in Council for the Regulation of Healthcare Excellence v Mulhem (2004), a successful appeal against the decision of the GMC not to erase a doctor from the medical register. Ben also regularly acts for the GMC in appeals by doctors to the High Court. Recent cases include Calhaem v GMC [2007] EWHC 2606 (Admin) where the Court gave guidance on the circumstances in which complaints of misconduct and deficient professional performance could arise out of a single medical error.

• Standard Life v Aon (2009)
  Acted for Aon in Commercial Court insurance case concerning mortgage endowment mis-selling by Standard Life. 
• Sea Containers [2008] UKPRT 5
  Ben acted for Sea Containers in the first ever reference to the Pensions Regulator Tribunal by a company, challenging the making of a Financial Support Direction.
• Jabre v FSA [2006] UKFSM 36
  Ben represented hedge-fund manager Philippe Jabre (led by Charles Flint QC) in this important market abuse case in which the Financial Services and Markets Tribunal ruled on the power of the FSA to re-introduce new charges on a reference to the Tribunal.
• Legal & General v FSA [2005] UKFSM 12
  Ben acted for Legal & General (led by Charles Flint QC) in its successful 6-week appeal to the Financial Services and Markets Tribunal against the fine imposed by the Financial Services Authority for mortgage endowment mis-selling. This case was the first reference to the Tribunal by a major city institution. The Tribunal’s criticisms of the FSA’s investigation and conduct led to a major review of the FSA’s processes and procedures.

Ben has been instructed in a number of major commercial disputes. He recently acted for Aon in a long Commercial Court trial concerning mortgage endowment mis-selling by Standard Life.

Ben has particular experience in commercial fraud cases and cases requiring without notice interim relief including freezing orders, search orders and obtaining Norwich Pharmacal relief.

Ben was the junior counsel for the Claimant in Campaign Against Arms Trade v BAE Systems Plc (2007), obtaining extensive Norwich Pharmacal relief (and the first without notice protective costs order) to force BAE to explain how and why it had obtained CAAT’s privileged legal documents. He also obtained a Norwich Pharmacal order for Binyam Mohamed requiring the Security Services to disclose evidence they held about the Claimant’s mistreatment by or on behalf of the USA.

Ben has particular experience in media disputes. He has acted for broadcasters, collecting societies, telecoms companies, record companies, film finance and distribution companies, artists, performers and managers in regulatory, commercial and employment disputes. An example of Ben’s work is BPI & others v MCPS/PRS Alliance (2007). Ben acted for the Alliance in the reference to the Copyright Tribunal brought by online music sellers, record companies and mobile network operators, concerning the proper rates and terms for online use of music.

Ben is a trustee and member of the management committee of the Public Law Project, the legal charity promoting access to public law remedies.

Publications:

• Ben is a co-author of Administrative Law: Practice and Procedure, (2006) ed. Beverley Lang QC, Sweet & Maxwell.
• Protective Costs Orders in Judicial Review [2006] JR 171
• Just the one: Sunk costs and justifying the manufacture of MOX fuel under EU law (2002) 4 Env LR 252
• Casenote: Yildiz v Secretary of State for Social Security (2001) 13 International Journal of Refugee Law 238