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James Counsell QC

James Counsell QC

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Year of Call:

1984

Silk:

2017


James Counsell, QC is widely recognised in the fields of Clinical and Professional Negligence and in Personal Injury, acting both for claimants and for defendants.  He also specialises in acting for victims of historic sexual abuse, having recently acted as lead counsel in the first successful claim against the Jehovah’s Witness organisation.

James acts for claimants and financial institutions in claims based upon the alleged mis-selling of financial products and breaches of FSMA and at common law.

His claims work is combined with a busy disciplinary and regulatory practice, regularly representing doctors, dentists, solicitors, accountants and those in the financial services sector in their respective disciplinary tribunals.

Besides defence regulatory work, he regularly represents the Council of Lloyd’s in enforcement proceedings brought against its members by the Society of Lloyd’s and recently conducted an extensive and high profile inquiry leading to successful enforcement proceedings against a Lloyd’s managing agency and its senior officers. James is also an active member of the BSB Prosecuting Panel and has represented BSB in a number of high profile cases against well known barristers in the last year or so.

Clinical Negligence

In the past year or so, James has been involved in a wide range of cases involving, amongst other issues, allegations of negligence in the fields of general surgery. This has included failure to staple after bowel removal, failure to treat abscess leading to septicaemia and death, spinal surgery (decompression), orthopaedics (hip replacement and hip resurfacing, foot and back and knee surgery and failure to diagnose surgical error leading to leg amputation. Additionally, he has expertise in obstetrics (delivery delay, leading to brain damage / failure to intubate, leading to death), general practice (failure to act on histological report indicating carcinoma / failure to refer to specialist, leading to amputation, failure to identify cancerous mole, failure to advise on hepatitis, failure to identify diabetes), vascular surgery (failure to treat post-thrombotic syndrome) and paediatrics (failure to detect hip dysplasia, shortly after birth).

Besides clinical issues, he has recently successfully acted for a patient in a consent case where the patient was not told of a switch of clinician and in a Montgomery case in which failure to explain treatment options is alleged.

The split of his work is roughly 40/60 between claimant and defendant.

James also regularly represents doctors at inquests, and acted for two clinicians in the ongoing inquiry into Hyponatraemia-related deaths (O’Hara J) in Northern Ireland (report awaited).

Cases:

Jones v Royal Devon and Exeter NHS Foundation Trust (Lawtel 22 September 2015)

Acted for claimant in successful claim against Trust for failure to “consent” patient properly by informing her of change of surgeon before spinal surgery.

Evans v Royal Wolverhampton Hospitals NHS Trust [2014] EWHC 4132 (QB)

Brain damage caused after premature discharge from A&E. Case is leading authority on circumstances in which Part 36 offeror may withdraw offer early after receiving anonymous tip-off that the claim was a sham.

Harris v South Warwickshire NHS Foundation Trust

Successful defence of orthopaedic surgeon (Trial mid 2015) alleged to have performed hip replacement surgery negligently.

Oakes v Birmingham and Solihull Mental Health Foundation Trust

Successfully defended psychiatrist in 2014 against allegations prescribed wrong psychotic drug, leading to diabetes.

Glaister (Wheeler) v IOW HNS Trust (2015)

Acting for Estate of patient who died after contracting septicaemia arising out of allegedly negligent failure properly to treat abscess.

Howe v Taunton & Somerset NHS Foundation Trust (ongoing)

Acting for Claimant who sustained brain injuries as a result of alleged delay in treating subdural haematoma.

Browring v Royal Devon & Exeter NHS Foundation Trust (ongoing)

Claim for severe knee injuries caused in allegedly negligently performed replacement operation.

Pinnick v Fitzherbert (2016)

Acting for claimant, in claim against GP, who suffered injuries as a result of delay in treatment of type 1 diabetes, leading to severe diabetic complications including almost complete loss of mobility.

 

Personal Injury

James has an extremely busy personal injury practice, representing mostly, but not exclusively claimants, often funded by CFAs. He specialises in acting for claimants in historic and more recent sex abuse claims and has recently acted for a successful claimant in the first successful historic sex abuse case against the Jehovah’s Witness organisation.

Much of his PI work involves claims arising out of serious injuries sustained in accidents at work and other health and safety contexts and he also acts for both parties in RTA claims, particularly in high value claims.

Cases:

A v The Trustees of the Watchtower Bible Tract Society and Others [2015] EWHC 1722 (QB)

Landmark first successful claim against Jehovah’s Witnesses organisation for historic sexual abuse committed by one of its ministerial servants and for vicarious liability of elders in failing to safeguard member of congregation.

Rocks and Connolly v Nottingham Roman Catholic Diocesan Trustees and Another – trial in 2016

Acting for claimants in two separate but linked claims based upon historic sexual abuse in church-based school.

McCouid v Adamski (ongoing)

Acting for three members of same family in claim for extensive physical and psychiatric injuries in very serious RTA.

Lisney v CLC & Willmott Dixon (Trial in 2017)

Successfully represents claimant in claim for damages for very serious injuries sustained when fell from scaffolding tower at work.

Disciplinary & Regulatory

James’s regulatory practice, on the defence side, is chiefly in the medical and dental field together with acting for solicitors and accountants.

He is frequently instructed (by all the principal defence organisations (MPS, MDU, MDDUS) to represent doctors and dentists at the General Medical Council (the MPTS) and General Dental Council. His work has involved the full range of misconduct and heath cases, including clinical malpractice, dishonesty, sexual misconduct and health/addiction-related cases and he regularly conducts appeals in the Administrative Court.

As an active member of the BSB Prosecution Panel, he has prosecuted two recent misconduct hearings against barristers leading to disbarment for dishonesty and has acted for the BSB in the high profile cases of Constance Briscoe, Shawn Wallace and Damian McCarlby.

James has represented Lloyd’s of London in over 40 cases and assisted Lloyd’s in the complete redrafting of the misconduct byelaws in 2005.  Much of 2012/13 was taken up in conducting an inquiry for Lloyd’s into the conduct of a Lloyd’s Managing Agency and then prosecuting the subsequent successful disciplinary proceedings against the Company and its three senior officers. He has just completed an enforcement case against a Lloyd’s member, found to have been dishonest in respect of brokerage.

Cases:

Council of Lloyd’s v Equity Syndicate Management Limited and others

With Farhaz Khan, James represented the Council of Lloyd’s, instructed by Paul Brady of Lloyd’s Legal, in disciplinary proceedings against a Lloyd’s Managing Agent, its CEO, FD and Active Underwriter arising out of the circumstances surrounding a very substantial deterioration in ultimate net claims (assessed at £262 million). Led prosecution of subsequent disciplinary proceedings before the Lloyd’s Enforcement Tribunal resulting in settlement by all defendants shortly before the hearing was due to commence in March 2013.

Link to press: http://www.lloyds.com/~/media/Files/The%20Market/Communications/Market%20Bulletins/2013/02/Y4675.pdf http://www.insuranceinsider.com/lloyd-s-bars-and-fines-two-equity-execs
http://www.ft.com/cms

Council of Lloyd’s of London v M (Names withheld – not in public domain)

Three employees of Lloyd’s managing agents leaving one underwriting agency to go to a competitor, taking with them confidential information and seeking to “poach” business and clients for the benefit of their new employer in breach of Lloyd’s and contractual duties.

Council of Lloyd’s of London v Y (Name withheld)

Disciplinary proceedings against underwriting agent for misappropriating client money in Singapore.

Council of Lloyd’s v O’Sullivan

Disciplinary proceedings against Lloyd’s member of an LLP member alleging dishonesty as placing broker by misleading others as to nature of and extent of brokerage to be earned.  Discreditable misconduct  arising out of dishonestly obtaining more than US$1.7m out of deception found proved and banned from market, censured and ordered to pay costs.  Successfully represented Council of Lloyd’s at disciplinary tribunal, appeal tribunal and before the Council in a second appeal by the Defendant.

http://www.lloyds.com/~/media/files/the%20market/communications/market%20bulletins/2017/03/y5067.pdf

GMC v Pool

Fitness to practise proceedings brought against expert witness (psychiatrist) for failing to act within limits of expertise.  Appeal to Administrative Court partially successful – suspension quashed.

 

 

 

 

GMC v Walker

General Practitioner, working in botox clinic admitting allegations of sexual impropriety with patient, who, with her husband allegedly sought to blackmail him (husband convicted of blackmail). Complainant a dominatrix. Panel accepted his evidence that patient had a financial interest in continuing relations and played a leading role in what occurred, including filming it covertly. Doctor suspended rather than erased. Judicial review proceedings brought mid hearing to resolve challenge to decision to conduct hearing in public. Four week case.

Bar Standards Board v McCarthy

Prosecuted barrister accused of lying about the sending of client care letters in Direct Access instruction – disbarred.

Bar Standards Board v Wallace

Prosecuted TV quiz barrister accused of misconduct when representing young defendant facing section 18 charge.
http://www.mirror.co.uk/tv/tv-news/chases-barrister-fined-2500-after-9122962

Bar Standards Board v Briscoe

Prosecuted barrister and former judge in respect of dishonesty in police investigation into Chris Huhne penalty points prosecution – disbarred.
https://www.theguardian.com/books/constance-briscoe

Financial Services

Instructed both by claimants and defendants in financial services litigation. He has recently acted for a series of claimants in financial mis-selling claims against a number of leading financial institutions and he acts for Bank of Scotland/HBOS in claims arising out of its debt-collecting methods.

He is currently acting for a number of claimants in unrelated claims arising out of negligent advice and information in respect of fixed interest rate business loans, leading to claimants being locked into loan arrangements from which they cannot extract themselves.

Cases:

Peryer v Arbuthnot Latham

One of a series of cases where James acted for individual claimants in claims against their financial advisers for the mis-selling of financial products, causing losses arising out of the financial difficulties of AIG during the crash of September 2008.

Thomas v Triodos Bank [2017] EWHC 314 (Lawtel AC0154076)

Counsel for the Claimants in claim heard by HHJ Havelock-Allan, QC in which the court considered the extent of the duties owed by a bank to its customers when providing information about fixed interest rate loans.

Wanstall v Clydesdale Bank (2016)

Acting for Claimant farm partnership in claim against bank for negligent advice and information in selling fixed rate business loans.

 

Roberts v Bank of Scotland plc. [2013] EWCA Civ 882

Harassment claim brought against HBOS/Bank of Scottland and on appeal to Court of Appeal (Arden, Jackson and McCombe LJJ).

Professional Negligence

James acts for claimants in professional negligence claims against a wide variety of professionals, including accountants, solicitors, barristers and surveyors.

James represented the Claimants at trial and in the Court of Appeal (with Gordon Bebb, QC) in a claim against a firm of solicitors and a barrister arising out a claim by a mother for damages for the “wrongful birth” of her son born with spina bifida (Hibbert Pownall & Newton v Whitehead [2008] EWCA Civ; [2008] All ER (D) 60).

He is currently also acting for a series of individual claimants in claims against their financial advisers for the mis-selling of financial products causing losses arising out of the financial difficulties of AIG during the crash of September 2007 and for individual claimants in claims arising out of the sale of fixed interest loans.

Cases:

Solicitors’ Negligence

Rowse v Nalders LLP (Ongoing)

Acting for claimant in claim for negligent advice as to jurisdiction and powers of Financial Ombudsman and need to bring court proceedings.

Pearson v Georgiou and Others (Trial 2016)

Failing to advise client adequately as to entries on planning register, leading to purchase of property blighted by proposed development.

Hibbert Pownall & Newton v Whitehead [2008] EWCA Civ; [2008] All ER (D) 60)

Claim against a firm of solicitors and a barrister arising out a claim by a mother for damages for the “wrongful birth” of her son born with spina bifida.

Pond v Risdon Hosegood

Conveyancing negligence in failing to spot neighbouring planning application.

 

Surveyor’s Negligence and other Construction Experts

Downes v Dare

Surveyor’s failure to spot defects.

Mortimer v Flatt

Surveyor’s failure to spot defects.

Blacker & Reeves v Grant

Architect’s failure to carry out proper examination of warehouse floor before alteration work.

Burchell v Bullard

Builder’s defects in residential home, leading to costs appeal in CA.

Prew v Countrywide

Surveyor’s failure to spot defects in mortgage report inspection.

 

Accountant’s negligence


Faraday v Tetley

Accountant’s failure to advise on possibility of non UK residence for tax purposes.

 

Financial advice

Peryer v Arbuthnot Latham

One of a series of cases where James acted for individual claimants in claims against their financial advisers for the mis-selling of financial products, causing losses arising out of the financial difficulties of AIG during the crash of September 2008.

Thomas v Triodos Bank NV (Trial in 2016)

Acting for Claimant farming business in claim for breach of contract and misrepresentations in selling of fixed rate bank loans by bank.

Wanstall v Clydesdale Bank

Acting for Claimant farm partnership in claim against bank for negligent advice and information in selling fixed rate business loans.

Appointments & Memberships

  • APIL
  • ARDL
  • BMLS
  • FSLA
  • PIBA
  • PNBA
  • European Circuit
  • Western Circuit

 

Areas of Law


Recommendations


Testimonials


“Thorough, approachable and very switched-on in relation to the issues that need to be resolved.” Clinical Negligence, Chambers & Partners 2018

“Technical, well prepared and a very good advocate.” Professional Discipline, Chambers & Partners 2018

“Very meticulous and excellent on his feet.” Professional Discipline, Chambers & Partners 2018

“His calm, collected style is particularly effective with difficult clients and complex issues.” Professional Discipline & Regulatory Law, Legal 500 2017

“Calm, robust and steady in difficult circumstances.” Financial Services, Legal 500 2017

“Exactly the sort of person you want to take you through a trial.” Banking & Finance, Legal 500 2017

“He’s very detail-focused, he picks up on absolutely everything and he’s very good at digesting large quantities of information in a very short period of time.” Professional Discipline, Chambers & Partners 2017

“unflappable exterior makes him a really polished performer before the panels. He is well received whenever he appears.” Professional Discipline, Chambers & Partners 2017

“Extremely thorough and knowledgeable.” Professional Discipline and Regulatory Law, Legal 500 2016

“Highly experienced in mis-selling and negligence claims.” Banking and Finance, Legal 500 2016

“He’s absolutely superb as he’s very quick on the uptake of issues and has no mannerisms or posturing.” Professional Discipline, Chambers & Partners 2016

“He addresses things in exactly the right way for each individual client.” Professional Discipline, Chambers & Partners 2016

“A well-regarded specialist in financial regulatory, banking and insurance law.” Banking & Finance, Legal 500 2015

“He is always well prepared.” Professional Discipline & Regulatory Law, Legal 500 2015

 

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