James Counsell KC is widely recognised in the fields of Clinical and Professional Negligence, Personal Injury, regulatory and disciplinary hearings and Financial Services claims, both in the UK and abroad.
His clinical negligence work, acting both for claimants and for defendants, is combined with a busy disciplinary and regulatory practice, regularly representing doctors, dentists, barristers, solicitors and those in the financial services sector in their respective disciplinary tribunals. He acts both for practitioners and also for the BSB and the SRA.
In the field of financial Services, James acts for defendants in contempt proceedings in the Business and Property Courts, brought against individuals for alleged breaches of freezing and disclosure orders and for claimants and financial institutions in mis-selling claims and other regulatory breaches. He represents litigants in the UK and also in the Middle East with ongoing clients in the DIFC Courts in Dubai (leading Stephen Doherty).
He also specialises in acting for survivors of non-recent sexual abuse, having recently acted as lead counsel (leading Benjamin Bradley) in two claims against the Jehovah’s Witness organisation, the second of which is now a leading Supreme Court authority on vicarious liability and limitation. He has acted for numerous claimants in cases against football and other sports clubs and entities, religious and educational organisations and the Scout Association.
James is a Head of Chambers at Outer Temple Chambers and its Head of Governance.
James has recently acted on both sides in cases involving allegations of negligence in the fields of general surgery – failure to staple after bowel removal, failure to treat abscess leading to septicaemia and death, spinal surgery (decompression, treatment of spinal fractures), 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), paediatrics (failure to detect hip dysplasia, shortly after birth), obstetrics (negligent caesarean section) and negligent laser eye surgery.
Besides clinical issues, he has recently successfully acted for a patient in a consent case where the patient was not told of a late switch of clinician and in a Montgomery case in which failure to explain treatment options is alleged and where the patient did not have the risks of laser eye surgery adequately explained.
The split of his work is roughly 50:50 between claimant and defendant.
Featherstone-Harvey v Royal Cornwall Hospitals NHS Trust
Claim by Estate of patient suffering from acute myeloid leukaemia who was negligently exposed to sewage backflow in a shower, leading to sepsis and premature death because he was unable to withstand chemotherapy which would have prolonged his life. Recently settled.
Robus v Yeovil District Hospital NHS Foundation Trust and Somerset NHS Foundation Trust
Defended claim against two hospitals for allegedly negligent treatment, including spinal surgery, leading to paraplegia and need for very extensive care.
Smith v Royal Wolverhampton NHS Trust
Acting for Trust in claim for alleged negligent care in days leading up to birth of child and consequential delays in delivery, leading to quadriplegial cerebral palsy, developmental delay and focal seizures.
Maller v Optimax Clinics Limited & Ayoubi
Claim against laser eye clinic and consultant opthalmologist for negligent care and treatment and failure properly to advise on risks and alternatives when consenting patient, leading to very severe corneal neuralgia. Trial in October 2023 but settled shortly before trial.
Heaney v Royal Cornwall Hospitals NHS Trust and Another
Acted for claimant in claim against two Trusts for negligent treatment of very serious leg injuries after motorcycle accident, leading to amputation six months later. Liability, breach and causation fully contested and case ongoing.
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.
Bayley v George Eliot Hospital NHS Trust
Successfully defended Trust against allegation relating to treatment after DVT and alleged failures to consent.
ZZZ v Yeovil NHS Foundation Trust
Claim by insurers of negligent driver for contribution against hospital for alleged delayed diagnosis of spinal fracture leading to paraplegia. Acted for Trust in successful defence of claim.
A longstanding background in regulatory and disciplinary work beginning with his work for Lloyd’s of London (nearly 40 cases over the last 20 years) and now spanning the whole range of regulatory work both for and against professionals, including appearing in hearings involving doctors, dentists, accountants, solicitors, barristers, IFAs and actuaries.
Regularly instructed by the BSB and the SRA, he prosecutes misconduct hearings against solicitors and barristers for dishonesty and sexual impropriety.
He is also frequently instructed by all the principal medical defence organisations (including Medical Protection Society, Medical Defence Union and the Medical and Dental Defence Union of Scotland) 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 health cases, including clinical malpractice, dishonesty, sexual misconduct and health/addiction-related cases and he regularly conducts appeals in the Administrative Court.
General Medical Council v Dutta (1)
Defended a cosmetic surgeon alleged to have dishonestly misled his patient over identity of supplier breast implants and put pressure on patient to have surgery with offer of price reduction, together with a series of other allegations of misconduct in 4-week FTP hearing. Some of misconduct found proved (not dishonesty) and suspended for nine months. Combined statutory appeal against all findings and judicial review – successful on most of remaining allegations – case sent back to Tribunal by High Court Judge (Warby J) where Dr Dutta’s fitness to practise was found not to be impaired. [2020] EWHC 1974 (Admin)
General Medical Council v Dutta (2)
Represented Dr Dutta (appeal only) in Administrative Court (HHJ Belcher as a Deputy HCJ), on appeal from MPT decision to strike him off arising out of findings of dishonesty on his part in course of a CQC investigation. Some of findings overturned and case sent back to fresh MPT for reconsideration (pending) [2024] EWHC 1217 (Admin).
Bar Standards Board v A Barrister
Defended barrister charged with posting a website advertising a work colleague as a practising barrister able to take direct access work when he had been disbarred and failing to keep direct access client updated with level of fees before submitting an invoice for £420,000 for representing her in matrimonial finance proceedings.
Bar Standards Board v A Barrister
Prosecuting for BSB in disciplinary proceedings against a leading criminal silk for misconduct arising out of allegations which he made about the conduct of the prosecution team, including four QCs, in a criminal trial where he was defending, where he accused the prosecution of acting in bad faith without having adequate grounds for such an allegation. Unsuccessful JR application by Defence in respect of case management decision. Trial over 8 days remotely.
Bar Standards Board v Nicola Cain
Defended in high profile case where high flying employed barrister accused of dishonestly altering court order to deceive client and other acts of dishonesty, whilst suffering mental health issues and enormous pressure at work. Difficult plea in mitigation did not save her from inevitable disbarment.
GMC v Onyekpe
Defended an A&E doctor who admitted having sex with a patient in an A&E department toilet. Suspended for six months but then referred to the Court by the PSA on ground that case had been under-prosecuted by GMC and remitted back after a full appeal. Case reheard by MPT and six months suspension ordered again.
Bar Standards Board v McCarthy
Prosecuted barrister accused of lying about the sending of client care letters in Direct Access instruction – disbarred. Represented BSB when barrister unsuccessfully appealed to Administrative Court.
Prosecuted TV quiz barrister accused of misconduct when representing young defendant facing section 18 charge.
Prosecuted barrister and former judge in respect of dishonesty in police investigation into Chris Huhne penalty points prosecution – disbarred.
James has particular expertise in financial regulatory work and in contempt of court cases arising out of alleged breaches of disclosure and freezing orders. His cases often have an international dimension but mainly in Middle East where he has acted in multi-million-pound disputes and ground-breaking decisions. He also provides advocacy training in the region, at the DIFC Academy for pupils completing the Common Law Advanced Advocacy Skills which is a course for Emirati Advocates and other civil law trained lawyers, in-house counsel, and legal professionals seeking to diversify their skills and enhance their professional development.
He has recently defended three individuals accused of contempt of court for alleged breaches of disclosure and freezing orders, all three of which involved lengthy trials in the B&P Courts and appeals to the CA.
James has acted for Lloyd’s of London in proceedings against Lloyd’s brokers and underwriters in the Disciplinary and Appeal Tribunal. He led an inquiry carried out by Lloyd’s Legal into the reserving practices of a Lloyd’s managing agency, leading to successful and high-profile enforcement proceedings against the agency, its CEO, FD and active underwriter. These proceedings were concluded by admissions, shortly before trial, by each one of the defendants.
Al Soor Investments LLC and Others v Julius Baer (Middle East) Limited and Others
Acting for Claimants in claim against Swiss Bank and its Middle Eastern arm brought in DIFC Courts arising out the provision of investment advisory and placement services provided by the Defendant bank after Claimant had been advised to invest about AED 700 million in equity swaps, leading to very significant losses. Two preliminary hearings have taken place, both remotely, relating to jurisdiction and pre-action disclosure (judgment on latter just received).
Lakhan v Lamia [2021] CA 001
Appeal to the DIFC Court of Appeal in this ground-breaking jurisdiction decision which dealt with the circumstances in which a stay should be granted when a matter is referred to the Joint Judicial Committee (“JJC”) because proceedings have been brought in the onshore Dubai Courts after a claim to the DIFC Courts had already been made by the other party.
Court of Appeal revised its historical practice of automatically staying proceedings upon petitions being made to the JJC, by confirming that, in order for any stay to take effect, there must first be a positively determined “conflict of jurisdiction”, and the mere existence of two sets of proceedings before the DIFC Courts and the onshore Dubai Courts is no longer a sufficient basis on which to stay proceedings.
Very significant judicial decision grappling with tensions between local courts and DIFC Courts jurisdictions Reported at [2021] CA 001.
Fully contested contempt proceedings arising out of an alleged sustained attack by client to obtain control of high value assets owned by claimants, being notes issued as securitisations of various portfolios of commercial mortgages relating to property in the United Kingdom in order to “wrest control” of the Claimant companies. Client alleged to be in breach of previously ordered in unction by repeating his allegedly unlawful activity.
Six-day contempt trial in September 2022 before Miles J, leading Alex Haines (judgment in March [2022] EWHC 449 (Ch)) leading to findings of contempt and a two year maximum sentence of imprisonment and then appeal to CA, heard and refused by Court in July (judgment September 2020 [2022] EWCA Civ 1264).
Very important issues decided: (1) circumstances when application needs permission to appeal and (2) whether there is a power retrospectively to dispense with service of injunction – certificate of public importance granted by CA (Arnold, Stuart-Smith and Nugee LJJ). Application to appeal to SC refused.
Claim by 76-year old exiled wife of former leader of opposition in Turkey (the latter now serving life imprisonment) to recover the alleged misappropriation by Mr Turk of approx £40 million. Worldwide freezing order and disclosure injunction made to trace monies. Defence to main claim is that Claimant authorised the payments, including a payment of about £1.4 million to the Duke and Duchess of York, as part of steps taken by Mr Turk to assist her in removing money clandestinely from Turkey without alerting authorities. Highly complex tracing exercise to track down the proceeds of investment by Mr Turk, who was alleged to have breached terms of disclosure order leading to the contempt proceedings.
With Helen Pugh, represented Defendant in contempt trial over 9 days in late 2023 before Sir Anthony Mann, s/a High Court Judge, who committed Defendant for 12 months and then on appeal to Court of Appeal. CA (Lewison, Moyland, Laing LJJ) suspended sentence [2024] EWCA Civ 568. Case ongoing.
Barclays Bank v Dylan, Antrobus and Mason
Represented Mr Mason, leading Michael Uberoi, in contempt of court trial before Rajah J (judgment pending) arising out of alleged breaches of freezing orders within proceedings for recovery of moneys lent to companies with which defendants involved. Mr Dylan admitted some of breaches during trial but case fully contested by other two defendants.
James Counsell KC acts for claimants in professional negligence claims against a wide variety of professionals, including accountants, solicitors, barristers, financial advisers, banks and surveyors, together with a busy medical negligence practice, acting both for claimants and doctors and Trusts.
James acted (successfully) for the Claimants in the widely reported and commented upon case of Thomas v Triodos Bank [2017] EWHC 314 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.
He acted (now settled) for four claimants in a series of claims against a solicitor who conducted claims for damages by about 30 survivors of historical sex abuse, against their school, in which the solicitor is alleged to have advised them to settle their claims at an undervalue and without proper preparation.
James, Mewse, Stoiles and Briggs v Deansgate 123 plc
Claims against historic abuse specialist solicitor for settling claims, which he was conducting for a group of claimants, at an undervalue and without obtaining sufficient evidence to advise on settlement.
Leading Daniel Clarke and Patrick Tomison (both Outer Temple), these four claims have now settled shortly before trial for sums which reflect the awards or settlements which should have been achieved less a discount to allow for the possibility they may have been lost.
Rowse v Nalders LLP
Claim against solicitor (and potentially barrister) for negligent advice as to conduct of claim to Financial Ombudsman Service arising out of complaint against home insurer for failing to compensate adequately after house fire. Failure to advise as to effect of accepting FOS award on prospects of being able to bring civil claim. Defended on the basis that solicitor relied on counsel’s advice.
Pearson v Georgiou and Others
Failing to advise client adequately as to entries on planning register, leading to purchase of property blighted by proposed development.
Thomas v Triodos Bank NV
Successfully acted for Claimant farming business in claim for breach of contract and misrepresentations in selling of fixed rate bank loans by bank [2017] EWHC 314.
James acts mostly for claimants in the full range of personal injury work. For the past few years, he has specialised in acting for survivors in non-recent sexual abuse claims against numerous institutions, schools and individuals and is a leading claimant lawyer in this field, regularly being asked to speak on topical issues.
He was lead counsel in the first two successful claims (leading Benjamin Bradley) against the Jehovah’s Witness organisation, leading now to a large number of claims against the JW and also against football and other sports clubs, one of which (against Blackpool FC) was tried in early 2020, judgment given for the Claimant and overturned on appeal and more recently (2022) in an 8 week trial against Manchester City. An appeal in the second JW case was heard by the SC in February 2023. All of these cases are ground-breaking in terms of identifying how far the concept of vicarious liability can go in the context of claims against sporting organisations.
He currently acts for nearly all the claimants in claims against various football clubs arising out of the abuse committed by Barry Bennell and Frank Roper and has a raft of cases for claimants against schools, religious organisations, the Scout Association and other sporting clubs and associations. He regularly speaks on these issues.
Besides these claims, James has a busy practice in complex high value PI claims, mostly but not exclusively for claimants. He recently acted pro bono with Colm Nugent (Gatehouse) in a high value brain damage for an uninsured horse livery yard owner where a horse had escaped causing an RTA.
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.
BXB v The Trustees of the Barry Congregation of Jehovah’s Witnesses and another
Claim against Jehovah’s Witnesses arising out of rape of member of congregation by one its elders in 1990. Successful claims for damages at trial (Nov/Dec 19) before Chamberlain J in the High Court. [2020] 4 WLR 42; [2020] EWHC 156 (QB).
Also important for costs decision: the Defendant refused to negotiate in the face of repeated efforts to engage them in settlement negotiations. James was then successful in obtaining an indemnity costs sanction. Chamberlain J said this was not just because the Claimant ‘beat’ her own offer but also because he held that the Defendants had conducted the claim unreasonably. [2020] EWHC 656 (QB).
Appeal by Defendant to CA dismissed [2021] 4 WLR 42; [2021] EWCA Civ 356 but recently appealed successfully to SC [2023] UKSC Civ 356.
DSN v Blackpool Football Club Limited [2020] EWHC 595 (QB), [2020] EWHC 670 (QB) (costs judgment)
Claimant sexually abused by club scout and coach, Frank Roper on a football tour to New Zealand in 1987 when claimant was aged 13. Football club refused to accept legal responsibility for abuse despite tour effectively being a tour by a team of young Blackpool players. Successful on vicarious liability issues and claim also successful despite being 25 years out of time and awarded damages. [2020] EWHC 595 (QB).
Griffiths J awarded indemnity costs against Defendant for refusing to negotiate and for way proceedings conducted, including club’s refusal to negotiate. [2020] EWHC 670 (QB);
Subsequent successful appeal [2021] EWCA Civ 1352 and application for permission to appeal to Supreme Court rejected.
TVZ and Others v Manchester City Football Club Ltd
Acting for eight claimants severely affected by very serious sexual abuse by Barry Bennell football coach employed by above named professional club thirty or so years ago. Barry Bennell was convicted in high publicity criminal trials.
Limitation and legal responsibility for abuse (vicarious liability) main issues at trial (Johnson J) but also whether suffered injuries and how much claims worth.
High profile tried over 7 weeks in Autumn 2021. Claims failed but appeal to CA pending.
AXM and Others v Chelsea Football Club Ltd
Acting for four black claimants severely affected by racist abuse by youth coach, Graham Rix and development manager, Glyn Williams when playing for Chelsea’s youth teams.
Limitation and legal responsibility for abuse (vicarious liability) main issues at trial to be heard in March 2022 but also whether suffered injuries and how much claims worth.
Claims settled by Chelsea for “six figure” undisclosed sums shortly before trial after club took back conduct of case from its insurers.
Schoultz v. Ball and others
Claim by teenage claimant who suffered serious brain injury when travelling as passenger in taxi which collided with horse at night on A3. Complex liability issues including multiple defendants and claims under Animals Act 1971 and in negligence.
Acting pro bono for owner of field from which the horse escaped, and who was uninsured after insurers refused to indemnify.
Claim tried on liability in June 2022 but claim against client was settled very shortly before trial in view of her lack of means.
Various Claimants v Secretary of State for Health and Social Care
Claim by 85 claimants who suffered non-recent sexual and physical abuse during stay in Hill End Adolescent Unit whilst under excessive and unnecessary sedation. Currently negotiating terms of a compensation scheme to provide redress.
Mewse & Others v Deansgate 123 LLP
Claims by survivors of sexual abuse in a school against former solicitors for advice to settle at an undervalue.
James Counsell specialises in appearing before a wide range of disciplinary tribunals. Over the years, he has developed a busy and successful practice in defending and prosecuting across a wide range of professional disciplinary tribunals. His considerable experience in the medical and legal field, defending and prosecuting doctors, solicitors and barristers, often in high profile cases, has provided him with the opportunity and skills to develop his practice into Sports Law.
He recently acted for the Bar Standards Board in a high profile case (name of respondent withheld) arising out of BHA disciplinary proceedings against a jockey and trainer.
Outside the disciplinary field, James has significant expertise in claims alleging failures to safeguard and for breach of their duty of care by sporting organisations.
Amongst his current cases, leading Ben Bradley:
Many of these High Court claims are ongoing. James’s expertise in safeguarding claims has led him to act for claimants in very many historical sex abuse claims against, amongst others, religious organisations, schools, the scouts, together, as mentioned above, with football clubs and other sporting bodies.
He accepts instructions on a Direct Access basis in appropriate cases.
FXF v English National Karate Federation
Claim by young international gold medal winner and British Karate Champion against federation for damages arising out of psychiatric injuries caused by sexual relationship instigated by national coach when she was under-age, leading to the destruction of her career.
Claim for liability for assault and breach of duty by coach and for failures in the investigation of her complaint.
James, together with Olinga Tahzib, recently represented the Claimant at a hearing before the Court of Appeal, the Master of the Rolls presiding, where the court finally put to bed the issue as to whether an application to set aside a judgment in default was an application for relief from sanction to which the Denton principles applied.
Full story here.
Schoultz v. Ball and others
Claim by teenage claimant who suffered serious brain injury when travelling as passenger in taxi which collided with horse at night on A3. Complex liability issues including multiple defendants and claims under Animals Act 1971 and in negligence.
Acting pro bono for owner of field from which the horse escaped, and who was uninsured after insurers refused to indemnify. Claim tried on liability in June 2022 but claim against client was settled shortly before trial in view of her lack of means. Jonathan Hand KC, Nathan Tavares KC and Harriet Jerram acted for other parties.
DSN v Blackpool Football Club Limited [2020] EWHC 595 (QB), [2020] EWHC 670 (QB) (costs judgment)
Claimant sexually abused by club scout and coach, Frank Roper on a football tour to New Zealand in 1987 when claimant was aged 13. Football club refused to accept legal responsibility for abuse despite tour effectively being a tour by a team of young Blackpool players. Successful on vicarious liability issues and claim also successful despite being 25 years out of time and awarded damages. [2020] EWHC 595 (QB).
Griffiths J awarded indemnity costs against Defendant for refusing to negotiate and for way proceedings conducted, including club’s refusal to negotiate. [2020] EWHC 670 (QB);
Subsequent successful appeal [2021] EWCA Civ 1352 and application for permission to appeal to Supreme Court rejected.
TVZ and Others v Manchester City Football Club Ltd
Acting for eight claimants severely affected by very serious sexual abuse by Barry Bennell football coach employed by above named professional club thirty or so years ago. Barry Bennell was convicted in high publicity criminal trials.
Limitation and legal responsibility for abuse (vicarious liability) main issues at trial (Johnson J) but also whether suffered injuries and how much claims worth.
High profile tried over 7 weeks in Autumn 2021. Claims failed but appeal to CA pending.
AXM and Others v Chelsea Football Club Ltd
Acting for four black claimants severely affected by racist abuse by youth coach, Graham Rix and development manager, Glyn Williams when playing for Chelsea’s youth teams.
Limitation and legal responsibility for abuse (vicarious liability) main issues at trial to be heard in March 2022 but also whether suffered injuries and how much claims worth.
Claims settled by Chelsea for “six figure” undisclosed sums shortly before trial after club took back conduct of case from its insurers.
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