Toby Fisher

Contact Toby: tobyfisher@matrixlaw.co.uk | +44 (0)20 7404 3447

Contact Toby's Practice Team (Team X): TeamX@matrixlaw.co.uk

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Toby practises across all areas of public and international law, with particular expertise in environment and human rights law. He returned to practice in May 2022 after three and a half years acting as Deputy Director, International Law for the New Zealand Government.

Toby advises and represents States, corporations, public bodies, NGOs and individuals in complex disputes. He is adept at leading multi-disciplinary teams to deliver successful litigation outcomes.

International Human Rights Law

As counsel, Toby’s international human rights work has included acting as: Junior counsel in R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2016] EWHC 2102 (Admin) and R (Hoareau and Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin), judicial review proceedings relating to the UK Government’s decisions to refuse to allow those exiled from the Chagos Islands to return home. Junior counsel in an appeal to the Court of Appeal from the High Court’s judgment in Kontic v Ministry of Defence [2016] EWHC 2034 (QB) and an application to the European Court of Human Rights on the question of attribution in United Nations mandated military operations. Senior advisor to Prof Christof Heyns, UN Special Rapporteur on extrajudicial, summary or arbitrary executions (2012 – 2016). Counsel to the Foundation for Human Rights, advising on the extent to which the draft Sri Lankan Counter Terrorism Act complied with international human rights norms. Counsel for the South African Human Rights Commission in the Marikana Commission of Inquiry, a judicial inquiry into the police killing of 42 miners at a strike at a mine in South Africa’s Platinum Belt and the extent to which the mining company, Lonmin plc, and various arms of South African national and local government, had complied with their business and human rights obligations. As Deputy Director of International Law for the New Zealand Government, Toby was responsible for representing and advising the New Zealand Government on international human rights and international humanitarian law matters. He managed New Zealand’s communications to the UN Human Rights Committee,  advised on the international law aspects of New Zealand’s COViD response, contributed to the development of the Christchurch Call to Eliminate Terrorist and Violent Extremist Content Online, and led the development of cross-government strategic advice on mitigating the risk of aiding or assisting internationally wrongful acts, in response to the Inspector-General of Intelligence and Security’s report on alleged complicity of the New Zealand intelligence agencies with the CIA detention programme. Toby also co-led the development of a New Zealand Detention Policy Framework, arising out of the report of the Government Inquiry into Operation Burnham and other matters, an inquiry into alleged war crimes and human rights abuses carried out by New Zealand Defence Force in Afghanistan.

International Environmental Law

As counsel, Toby has acted in complex international disputes arising out of environmental pollution, including: Nyasulu v Vedanta Resources and Konkola Copper Mines, a damages claim for environmental pollution caused by a UK incorporated parent company and its Zambian subsidiary (stayed and settled in light of Vedanta Resources v Lungowe and others [2019] UKSC 20). Women of Marikana v Lonmin, a complaint to the World Bank’s Compliance Advisor/Ombudsman in relation to the International Finance Corporation’s failure to enforce environmental performance standards in its South African investments in Lonmin plc. As Deputy Director of International Law for the New Zealand Government, Toby was responsible for representation and advice to the New Zealand Government on all aspects of international environmental law. He was New Zealand’s legal adviser and lead negotiator on loss and damage at COP26 and has advised on all aspects of the UNFCCC and Paris Agreement, including in the context of domestic climate change litigation, proposals for carbon border adjustment mechanisms (CBAMs), and the operation of Article 6 of the Paris Agreement. He oversaw New Zealand’s legal advice relating to the Convention on Biological Diversity and its Nagoya Protocol, as well as in relation to the suite of obligations arising under international chemicals and waste conventions.

Law Of The Sea And International Fisheries

As Deputy Director of International Law for the New Zealand Government, Toby led the team responsible for law of the sea through two major negotiations: a negotiation at the United Nations of a new treaty on biodiversity beyond national jurisdiction (BBNJ); and the negotiation at the International Seabed Authority (ISA) of a regulatory framework to govern mining of the seabed beyond national jurisdiction. He contributed to the negotiation and promotion of the Pacific Islands Forum Leaders’ Declaration on Preserving Maritime Zones in the Face of Climate-Change Related Sea Level Rise, and the drafting of New Zealand’s Third Person Note to the UN Secretary-General on the application of the UN Convention on the Law of the Sea to the situation in the South China Sea. Toby also has expertise in international fisheries law, having engaged in New Zealand’s participation in regional fisheries management organisations (RFMOs) and negotiations in the UN General Assembly and the FAO. He advised the New Zealand Government on the international law aspects of establishing a large marine sanctuary in New Zealand’s exclusive economic zone.

Public And Human Rights Law

Toby has experience across a diverse range of domestic public law matters, having advised and acted for corporations, government departments, arms-length bodies, local government, NGOs, and individuals. He has expertise in public inquiries, planning and environmental law, immigration and asylum, healthcare, social security, community care. He is a member of the UK Attorney-General’s B panel of counsel. Toby was counsel to the Chagossian Committee Seychelles and acted in R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2016] EWHC 2102 (Admin) and R (Hoareau and Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin), judicial review proceedings relating to the UK Government’s decisions to refuse to allow those exiled from the Chagos Islands to return home.

Immigration And Asylum

Toby has acted in unlawful detention / false imprisonment claims, asylum and trafficking claims, and general Points Based System judicial reviews. He has acted for government as well as individuals. Notable cases include: R (Robinson) v SSHD[2019] UKSC 11. Junior counsel to James Eadie QC in this Supreme Court case addressing the role of paragraph 353 of the Immigration Rules in the scheme of appeal rights introduced by the Immigration Act 2014. AB v SSHD [2018] EWCA Civ 383. Junior counsel to Stephen Knafler QC, acting for the exiled opposition leader of an African state in this appeal to the Court of Appeal against the order of the High Court dismissing an application for judicial review of the SSHD’s failure to determine his asylum claim. Cases on failures to comply with Rules 34 & 35 of the Detention Centre Rules: see R (Anugha) v SSHD [2017] EWHC 1391 (Admin); and Johnson v Home Office.

Social Security / Healthcare

In the social security / healthcare field, Toby has advised and acted for claimants and for the Department of Health and Department for Work and Pensions in judicial reviews, Upper Tribunal appeals, and in the Court of Appeal. Notable cases included: MH v SSWP (PIP) (human rights – article 14) [2017] UKUT 424 (AAC). Led by Tim Buley QC, in this high-profile case dealing with the interpretation of the Personal Independence Payment (‘PIP’) Regulations in light of Article 14 ECHR. Secretary of State for Work and Pensions v Fileccia [2017] EWCA Civ 1907. Led by Fiona Scolding QC in this case addressing a complex question of European law relating to the determination of which Member State is responsible for carer’s allowance when EU nationals are caring for UK nationals in the UK (social security and EU law). LH v Secretary of State for Work and Pensions (RP) (Recovery of overpayments – failure to disclose) [2017] UKUT 249 (AAC). Acting pro-bono in this successful challenge to the Secretary of State’s approach to recovering overpayments where benefit recipients have allegedly ‘failed to disclose’ material facts. The judgment softens the unfair consequences of Hinchy [2005] UKHL 16 and B v Secretary of State for Work and Pensions [2005] EWCA Civ 929. Toby has also advised and acted in a range of other areas of public law, including in mental health tribunals and mental health judicial reviews (R (M) v London Borough of Hammersmith and Fulham [2011] EWCA Civ 77), and freedom of information appeals.

Planning And Environment

Toby has regularly appeared in planning inquiries and judicial review proceedings on a range of environment and planning matters. He has advised a range of clients on planning and environmental law matters, including in particular on Environmental Impact Assessment and compliance with the Habitats Regulations. He has advised local authorities on the development of their Local Plans and NGOs in relation to their advocacy and legal strategy. Notable appearances include acting for: Friends of the Earth in a major public inquiry opposing, on climate change grounds, an application made by Banks Mining for coal extraction in Northumberland. The Secretary of State in R (Parkhurst Road Ltd) v Secretary of State for Communities and Local Government [2018] EWHC 991 (Admin), successfully defending the appropriate application of affordable housing policy in London. South Downs National Park in R (FH Green) v South Downs National Park Authority [2018] EWHC 604 (Admin), successfully defending the Authority’s decision to grant planning permission for development of a listed building in a highly sensitive area of the National Park Mid Sussex District Council in a judicial review of its decision to grant planning permission to itself, as landowner, for residential development: R (Irving) v Mid Sussex District Council[2017] EWHC 243 (Admin). Wiltshire Council in a judicial review of its decision to grant planning permission for tourism development in the countryside: R (Austin) v Wiltshire Council[2017] EWHC 38(Admin) The Homes and Communities Agency in a successful inquiry, overturning the local authority’s refusal of planning permission for 1300 homes; A number of developers of renewable energy schemes in planning inquiries and judicial review claims: see, for example, R (Ardley Against Incineration) v SSCLG [2011] EWHC 2230 (Admin) and R (Bristol City Council) v SSCLG [2011] EWHC 4014 (Admin).

Investigations And Inquiries

Toby has extensive experience, across multiple jurisdictions, in public inquiries. Counsel to New Zealand’s Ministry of Foreign Affairs and Trade in the Government Inquiry into Operation Burnham and other matters, a judicial inquiry into alleged war crimes and human rights abuses by the New Zealand Defence Force in Afghanistan (Oct 2018 – Jun 2020). Counsel to New Zealand’s Ministry of Foreign Affairs and Trade in the Royal Commission into the terrorist attack on Christchurch masjidain on 15 March 2019, a judicial inquiry into the Christchurch terrorist attack (May 2019 – Apr 2020). Counsel to the New Zealand State Services Commissioner in the Government Inquiry into the Appointment Process for a Deputy Commissioner of Police (Jul – Dec 2018). First Junior Counsel to the Independent Inquiry into Child Sexual Abuse (Apr 2015 – Dec 2016), an inquiry into the extent to which state and non-state institutions had failed in their duty of care to protect children against sexual exploitation. Co-counsel for the South African Human Rights Commission in the Marikana Commission of Inquiry, a judicial inquiry into i) the events of 16 August 2012 at Marikana, South Africa, where 34 striking miners were shot dead by police; and ii) the extent to which a mining company, Lonmin plc, and various arms of South African national and local government, had complied with their environmental and human rights obligations (Oct 2012 – Feb 2015). Junior counsel to the Leveson Inquiry into the culture, practices and ethics of the press, arising out of the ‘phone hacking’ scandal (Apr 2012 – Nov 2013).

Publications

Contributing author to the UN Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016) Human Rights Practice (Simor, ed): chapter on freedom of expression Judicial Review (Supperstone, Goudie and Walker): chapter on judicial review procedure Garner’s Environmental Law (Lexis Nexis Butterworths): chapters on climate change law and renewable energy law. Children’s Social Care Law (Legal Action Group): chapters on safeguarding and human rights.

Education

Selwyn College, Cambridge University (Oct 1998 – June 2001) BA (Hons) Social and Political Sciences: Double First Class (2nd highest in year) Cambridge Commonwealth Scholar City University, London (Oct 2005 – June 2006) Graduate Diploma in Law: Distinction Lord Mansfield Scholar London School of Economics (Oct 2006 – Jun 2007) LLM (International Human Rights Law): Distinction

Other

CEDR accredited mediator and a member of the Chartered Institute of Arbitrators. Legal consultant/associate producer for BBC Radio 4’s flagship legal programme ‘Unreliable Evidence’ (2007-12) and BBC World’s ‘The Legal World’ (2011). Prior to his career as a lawyer, Toby was an award-winning actor in film, television and theatre.

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Toby's Privacy Notice

Toby is committed to protecting and respecting your privacy. In order to provide legal services to his clients, including advice and representation services, Toby needs to collect and hold personal data. Toby’s Privacy Notice contains full details of when, why and how he will store and process personal data. To read his Privacy Notice, please click here.

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