Kate Gallafent KC

Kate acted for the NSTA in challenges by an oil producer to the NSTA’s advice first to TotalEnergies then the Secretary of State in relation to decommissioning of infrastructure owed by TotalEnergies but used by other neighbouring oil producers, on the grounds that the NSTA had failed to adhere to the statutory objective of maximising the economic recovery of UK petroleum.

Kate acted for the HFEA in a challenge to the statutory requirement that any consent for the use of a person’s embryo must be in writing and signed by the relevant person, including for posthumous use, in circumstances where no consent form had been signed concerning use of the Claimant’s and his deceased wife’s remaining embryo.

Kate appeared for the claimants in a challenge to the Secretary of State for Defence’s decision not to direct the commencement of s.192 of the Employment Rights Act 1996, which would have had the effect of extending certain employment law rights (including the right to bring a claim for unfair dismissal in the employment tribunal) to service personnel, some 15 years after the Act was given Royal Assent.

Kate acted for the OGA in defending a challenge to the OGA’s Strategy, which requires that relevant actors in the UK’s offshore oil and gas production industry take appropriate steps to assist the Secretary of State to meet the Government’s net zero target, when meeting the principle statutory object of ‘maximising the economic recovery of UK petroleum’.

Kate appeared for the Appellant, Christie Elan-Cane, challenging the Government’s policy not to issue non gender-specific passports (known as ‘X’ passports, permitted by the International Civil Aviation Organisation), on the grounds that it violated the Appellant’s Article 8 rights. The Appellant has submitted an application to the European Court of Human Rights.

Kate appeared for the OGA in an application made under s.44(3) of the Arbitration Act 1996 by a licensee and other related persons seeking an order restraining the OGA from circulating a redacted version of a statutory Notice, in which the issue was whether the dispute was one to which the Arbitration Act applies, and, having found it was not, whether the application was one which should be treated as if it were a claim for interim relief in judicial review proceedings.

Kate was instructed by the Secretary of State for the Home Department in a challenge to the ‘100 year rule’ whereby records of criminal convictions are retained on the Police National Computer until the convicted person turns or is deemed to turn 100. The challenge was brought by a number of women with historic of the claimants’ convictions until they were 100 years old, on the grounds that the retention policy did not include safeguards to prevent a disproportionate interference with their Article 8 rights or a review mechanism by which the decision to apply the policy could be challenged.

Kate represented the Secretaries of State for the Home Department and Justice on an appeal brought by women with convictions for soliciting (an offence that during the relevant period could only be committed by women) that (i) the criminalising of such conduct violates Article 8 read with Article 14 of the Convention because it is gender discriminatory, and (ii) that the recording and/or retention of that data violates Article 4 and/or Article 8, and/or Article 14 read with Article 8. The Court of Appeal dismissed both grounds of appeal, but granted the claimants permission to appeal against the Divisional Court’s refusal of permission to proceed with a judicial review of the National Police Chiefs’ Council’s guidance on retention on the Police National Computer under the ‘100 year rule’ (see R (QSA & Ors) v National Police Chiefs’ Council [2021] EWHC 272 (Admin), [2021] 1 WLR 2962)

Kate represented the Secretaries of State for the Home Department and Justice in an appeal brought against the decision of the Divisional Court that the policy to require someone seeking employment as a constable or cadet within the police service to spent convictions and cautions was incompatible with Article 8 to the extent that it require disclosure of “low level, historical cautions”. The appeal was upheld.

Kate was instructed (led by Sir James Eadie KC) by the Secretary of State in the Supreme Court on the Secretary of State’s appeals against decisions of the Court of Appeal that the legislative scheme governing the disclosure of criminal records was not “in accordance with the law” as required under Article 8(2) of the Convention (that the legislation was both accessible and its impact foreseeable). The Supreme Court upheld the Secretary of State’s appeals on that issue, finding that the impact of the scheme was wholly foreseeable, and the fact that it did not draw distinctions based on the relevance of a conviction to a potential employer, and the absence of a mechanism for the independent review of disclosure, did not deprive the legislation of the quality of law. On the issue of proportionality the Supreme Court held that it was not disproportionate in principle to legislate by reference to pre-defined categories where appropriate, but found that two categories under the existing scheme were disproportionate.

Kate appeared for the Human Embryology and Fertility Authority in an urgent application by Y for a declaration that, notwithstanding her husband’s incapacity and inability to consent, it was lawful and in his best interests for his sperm to be retrieved and stored prior to his death.

Kate was led by Pushpinder Saini KC instructed by Ofcom in an appeal going to the scope of its dispute resolution powers following a finding of overcharge, the proper approach to the assessment of compliance with a cost orientation obligation and Ofcom’s jurisdiction to award interest on the amount of any overcharge required to be repaid. Ofcom successfully resisted BT’s challenge to the scope of its dispute resolution powers, and a challenge by TalkTalk in which it was contended that Ofcom had significantly underestimated the extent of overcharging by BT by using a costs standard that permitted over-recovery of common costs. Other operators successfully argued that Ofcom should award interest on their overcharges and were supported by Ofcom in their argument that the regulator had jurisdiction to do so.

Acting for the Human Fertilisation and Embryology Authority in a challenge to changes to the “Choose a Fertility Clinic” feature on its website which are alleged to confuse and mislead patients by focusing on single embryo transfer, brought by a clinic with high multiple embryo transfer and birth rates. 

Acted for the Human Fertilisation and Embryology Authority in a challenge to the decision to suspend licenses of three clinics for non-compliance. Concurrent proceedings in the Administrative Court and the Appeal Committee. Issues of construction of the Human Fertilisation and Embryology Act and Appeal Rules, proportionality. 

Appeared for Ofcom in a challenge to their decision not to extend a community radio service licence following breaches of licence conditions, in the absence of an oral hearing.  The case raised the important issue of the appropriateness of the court determining a matter for itself rather than remitting it to the statutory decision-maker for reconsideration following the quashing of a decision. 

Appeared for Sport England and the other Sport Councils in a challenge to their adoption of a policy for the recognition of sports governing bodies which requires a “sport” to consist of a physical activity and therefore excluded so-called “mind sports” such as bridge and chess.

Kate acted for the HFEA in a challenge to the statutory requirement that any consent for the use of a person’s embryo must be in writing and signed by the relevant person, including for posthumous use, in circumstances where no consent form had been signed concerning use of the Claimant’s and his deceased wife’s remaining embryo.

Kate appeared for the Appellant, Christie Elan-Cane, challenging the Government’s policy not to issue non gender-specific passports (known as ‘X’ passports, permitted by the International Civil Aviation Organisation), on the grounds that it violated the Appellant’s Article 8 rights. The Appellant has submitted an application to the European Court of Human Rights.

Kate was instructed by the Secretary of State for the Home Department in a challenge to the ‘100 year rule’ whereby records of criminal convictions are retained on the Police National Computer until the convicted person turns or is deemed to turn 100. The challenge was brought by a number of women with historic of the claimants’ convictions until they were 100 years old, on the grounds that the retention policy did not include safeguards to prevent a disproportionate interference with their Article 8 rights or a review mechanism by which the decision to apply the policy could be challenged.

Kate represented the Secretaries of State for the Home Department and Justice on an appeal brought by women with convictions for soliciting (an offence that during the relevant period could only be committed by women) that (i) the criminalising of such conduct violates Article 8 read with Article 14 of the Convention because it is gender discriminatory, and (ii) that the recording and/or retention of that data violates Article 4 and/or Article 8, and/or Article 14 read with Article 8. The Court of Appeal dismissed both grounds of appeal, but granted the claimants permission to appeal against the Divisional Court’s refusal of permission to proceed with a judicial review of the National Police Chiefs’ Council’s guidance on retention on the Police National Computer under the ‘100 year rule’ (see R (QSA & Ors) v National Police Chiefs’ Council [2021] EWHC 272 (Admin), [2021] 1 WLR 2962)

Kate represented the Secretaries of State for the Home Department and Justice in an appeal brought against the decision of the Divisional Court that the policy to require someone seeking employment as a constable or cadet within the police service to spent convictions and cautions was incompatible with Article 8 to the extent that it require disclosure of “low level, historical cautions”. The appeal was upheld.

Kate was instructed (led by Sir James Eadie KC) by the Secretary of State in the Supreme Court on the Secretary of State’s appeals against decisions of the Court of Appeal that the legislative scheme governing the disclosure of criminal records was not “in accordance with the law” as required under Article 8(2) of the Convention (that the legislation was both accessible and its impact foreseeable). The Supreme Court upheld the Secretary of State’s appeals on that issue, finding that the impact of the scheme was wholly foreseeable, and the fact that it did not draw distinctions based on the relevance of a conviction to a potential employer, and the absence of a mechanism for the independent review of disclosure, did not deprive the legislation of the quality of law. On the issue of proportionality the Supreme Court held that it was not disproportionate in principle to legislate by reference to pre-defined categories where appropriate, but found that two categories under the existing scheme were disproportionate.

Kate appeared for the Human Embryology and Fertility Authority in an urgent application by Y for a declaration that, notwithstanding her husband’s incapacity and inability to consent, it was lawful and in his best interests for his sperm to be retrieved and stored prior to his death.

Appeared on behalf of the Children’s Commissioner as intervenor in an important case concerning the scope of the obligation to have regard to the welfare of the child under s.55 of the Borders Act 2009, which reflects Article 3.1 of the United Nations Convention on the Rights of the Child, in the context of an asylum and human rights claim in which the child is a dependent.

Acted for the Secretary of State for Justice in a challenge to his decision that it was safe to enter into contracts for the sale of the probation service, on grounds that the decision gave rise to unacceptable risks under Articles 2 and 3 both to probation staff and to the wider public as a result of inadequacies in the new structure and operation of the service.

Appeared successfully for the Human Fertility and Embryology Authority on an application to set aside an interim injunction permitting a hospital to extract gametes from a man in a persistent vegetative state.  The case raised issues as to the scope of the HFEA’s powers in such circumstances and the role of the Official Solicitor.

Appeared for the Secretary of State for Justice in two cases in which prisoners in homosexual partnerships with other male prisoners alleged breaches of their Article 8 rights based on the lack of a policy specific to such prisoners.

Kate was instructed by a high profile individual in the sports industry in a discrimination claim brought against them.

Kate acted on behalf of Sport England in protracted proceedings brought by an agency worker on a short-time assignment with Sport England. Following termination of the assignment after a month the claimant issued proceedings against Sport England, and, seven months later, against the agency which had placed her at Sport England. Sport England successfully defended (a) her application to permit her to bring an ‘out of time’ claim against the agency, and her appeal to the EAT against that decision, (b) her application to appeal against a judgment following a preliminary hearing 675 days out of time and (c) the substantive claim, and her appeal to the EAT against that decision.

Kate was instructed on behalf of a law firm in respect of a claim for pregnancy and maternity discrimination, and of the Maternity Pay and Parental Leave Regulations.

Kate was instructed by a law firm to defend a discrimination claim based on race, religion or belief and/or sex.

Kate was instructed by a high profile individual in the entertainment industry to defend a claim against a personal employee.

Kate was instructed for a law firm in a claim for age discrimination arising out of the decision not to offer the individual partnership.

Kate was instructed for a law firm in a claim for sex, race and maternity discrimination, and equal pay arising out of the decision not to offer the individual partnership.

Kate was instructed for the claimant in an unfair dismissal and race discrimination claim concerning allegations of LIBOR-fixing. 

Kate was instructed for a claimant who had been suspended pending an FCA investigation into FX-fixing. 

Appeared pro bono in the Employment Appeal Tribunal for a claimant in a long-running race discrimination claim that raised issues of the proper approach to permitting amendment where multiple allegations are sought to be raised, and the effect of an application to vary an order made without the parties first having had the opportunity to make representations.

Kate successfully advised a regulated firm in relation to allegations of misconduct which had the potential to result in closure were they to have been upheld in full.

Kate appeared for the OGA in an application made under s.44(3) of the Arbitration Act 1996 by a licensee and other related persons seeking an order restraining the OGA from circulating a redacted version of a statutory Notice, in which the issue was whether the dispute was one to which the Arbitration Act applies, and, having found it was not, whether the application was one which should be treated as if it were a claim for interim relief in judicial review proceedings.

Kate appeared for the Human Embryology and Fertility Authority in an urgent application by Y for a declaration that, notwithstanding her husband’s incapacity and inability to consent, it was lawful and in his best interests for his sperm to be retrieved and stored prior to his death.

Acted for the Human Fertilisation and Embryology Authority in a challenge to the decision to suspend licenses of three clinics for non-compliance. Concurrent proceedings in the Administrative Court and the Appeal Committee. Issues of construction of the Human Fertilisation and Embryology Act and Appeal Rules, proportionality. 

Appeared for Ofcom in a challenge to their decision not to extend a community radio service licence following breaches of licence conditions, in the absence of an oral hearing.  The case raised the important issue of the appropriateness of the court determining a matter for itself rather than remitting it to the statutory decision-maker for reconsideration following the quashing of a decision. 

Kate acted successfully for an individual charged with misconduct and/or lack of competence by the Health Care Professionals Council, which charges were held not to be well founded.

Kate was instructed by a solicitor in relation to threatened intervention by the SRA.

Appeared for the GMC on a doctor’s appeal against erasure based on allegations of sexual misconduct and, following its remittal on the grounds of the inadequacy of reasons in the exceptional circumstances of the case, on his application to set aside the interim orders imposed upon his registration pending a further hearing before a panel of the Medical Practitioners Tribunal Service.

Kate represented a sports governing body in relation to an allegation of a historical child sexual offence, which raised issues as to the assistance to be derived from a professional risk assessment and the importance of risk management measures not being approached as being by way of punishment.

Kate represented a sports governing body in relation to a referee who had sent sexually explicit messages and images to an under 18 player, and requested indecent images from her; the safeguarding panel upheld the indefinite ban on his involvement in the sport, save for being able to attend adult matches under certain conditions.

Kate represented a sports governing body in relation to a coach who, the safeguarding panel accepted, displayed classic indicators of grooming, and upheld the indefinite ban on his involvement in the sport.

Kate represented a sports governing body in relation to a player who had been convicted of a sexual offence.

Kate appeared for a school in proceedings concerning the proposed disclosure to another educational establishment of information concerning criminal charges for child abuse which had been brought against a former pupil.

Kate advised and represented a sports governing body in confidential arbitral proceedings relating to the participation of persons with differences of sexual development in female sport.

Kate represented a sports governing body in confidential urgent proceedings before the ad hoc Court of Arbitration for Sport concerning the participation of a person with differences of sexual development in female sport at the Paris Olympics 2024.

Kate represented a sports governing body in confidential arbitral proceedings relating to a dispute over the governance and status of a member organisation following rival factions claiming to represent it.

Kate represented the Football Association on an appeal against a decision of a Regulatory Commission that the sanction that the Commission imposed was one to which no reasonable body could have come and/or the sanction imposed was accordingly unduly lenient so as to be unreasonable. The Appeal Board found that the Commission’s conclusion that the respondent was not a “conscious racist” was one to which no reasonable body could have come, and more than doubled the period of suspension to be imposed.

Kate represented the FA on appeals against the sanctions imposed on a manager and player as being so unduly lenient as to be unreasonable. The Appeal Board dismissed the appeals, whilst recognising that that another Regulatory Commission might have imposed a greater sanction on them.

Kate represented the FA in proceedings before a FIFA Disciplinary Committee, the FIFA Appeal Committee and then before a Panel of the CAS in relation to role and responsibility of a national association in the context of breaches by a club of FIFA’s Regulations for the Status and Transfer of Players.

The Panel held that (i) a national association’s obligation under the FIFA Statutes to cause its own members to comply with them may different from member to member, and FIFA is not necessarily required to identify what “actions and measures” a national association ought reasonably to have taken, but which (if it failed to take) could result in it being sanctioned; (ii) the Premier League Goals Programme comprises “organised football” for the purpose of FIFA Regulations, notwithstanding that the rules may be slightly different from the IFAB Laws of the Game; (iii) although not International Transfer Certificate is required for players under the age of 12 (or 10), they still need to comply with the substantive requirements set out at Article 19(2) before they can be registered or play in “organised football”; and (iv) that all players attending an academy are required to be reported by a club to the national association, not only those who stay therefore a longer period, as the reference to “long-term training” in the definition of the term “academy” refers to the objective of the academy as a whole and not to the type of training a player is receiving there.

Kate was instructed by the Football Association of Wales in urgent proceedings brought by a club challenging the FAW’s approach to determining the ranking of clubs following the premature ending of the 2019/20 season as a result of the COVID-19 pandemic, which would in turn determine which club would be nominated for the UEFA Champions League, and which for the UEFA Europa League. The FAW succeeded on all grounds.

Successfully acted for the FA against Kieran Tripper in relation to charges of misconduct for alleged breaches of the FA’s betting rules. 

An independent Panel of the IAAF Ethics Board partially upheld charges against the President of the UAE Athletics Federation and former World Athletics (previously IAAF) Council member, Ahmad Al Kamali. The Panel imposed a sanction upon Mr Al Kamali of a ban from the sport for 6 months, fined him €5,000 and ordered him to pay €15,000 in costs. Kate acted as prosecutor in the subsequent adjudicatory proceedings before a Panel of the IAAF Ethics Board.

Kate acted for the RFU in relation to the charges brought against 13 players within the Barbarians camp for breaches of the Covid Code of Conduct, as well as charges arising from the players having deliberately mislead the RFU’s investigation into those breaches.  

Successfully represented the FA before an independent Regulatory Commission, which resulted in the suspension of Peter Beardsley from all football and football-related activity for a period of 32 weeks until 29 April 2020. It was held that Mr Beardsley had committed three breaches of FA Rule E3, relating to the use of abusive and/or insulting words and constituted an “Aggravated Breach” under FA Rule E3(2) due to reference of ethnic origin and/or colour and/or race and/or nationality, while employed as a coach of the club’s Under-23s team.

Acted as the prosecutor for the IAAF Ethics Board, which banned the former Athletics Kenya vice president, David Okeyo, from the sport for life, fined him $50,000 and ordered him to pay $100,000 in costs. Mr Okeyo was found to have diverted hundreds of thousands of dollars of Nike sponsorship monies for his own personal use over many years.  The Panel found that this constituted conduct likely to bring the sport of athletics into disrepute.  

Appeared for the RFU in an appeal which considered for the first time the scope and effect of the new provision in the 2015 WADA for “plea bargains” between a national governing body and an athlete.

Appeared for the BHA in a civil claim in negligence brought by a bookmaker for alleged losses said to have been incurred as a result of the announcement of “Weighed In” before a Stewards’ Inquiry had been concluded.

Appeared successfully for the BBC defending its decision not to release information held about “Test Match Sofa”, which offered an ‘alternative’ style of commentary to Test Match Special.

Appeared successfully for the BBC defending its decision not to release information about a training event for journalists about climate change held under the ‘Chatham House’ rule.

Kate was instructed on behalf of the BBC (led by Monica Carss-Frisk QC) in this important case concerning the circumstances in which the BBC falls within the scope of the Freedom of Information Act.  The case went to the House of Lords (the first case to do so under that Act) on the issue of whether the Information Tribunal had jurisdiction to hear Mr Sugar’s appeal against the Information Commissioner’s finding that the BBC did not fall within the scope of the Act.  Having held that it did, the matter was remitted to the High Court on the issue of whether the information requested by Mr Sugar fell within the Act (that is, whether it was held for the purposes of journalism, art and literature).  The High Court allowed the BBC’s appeal on the issue, which decision was upheld by the Court of Appeal and the Supreme Court.