Brian McCluggage

"A proper trial lawyer; he likes a contest in court and is very good on his feet. He knows which points to take and which to leave alone";  "A standout senior junior": Chambers and Partners 2020

APPOINTMENTS

Head of 9SJS Personal Injury Team
Fee-paid Employment Judge (2010 to date)
A Panel, Attorney General's Panel for Civil Work ('Treasury Counsel') (2002 to date)
Barrister Member, Bar Disciplinary Tribunal (BTAS) (2017 to date)

PROFILE

Brian McCluggage is the Head of 9SJS Personal Injury Team. He accepts instructions in complex and high value personal injury and insurance disputes ranging from £500,000 to £20,000,000 in value. Regular solicitors and clients appreciate his detailed but ultimately direct approach.  With his vast experience he is able, to master large amounts of difficult papers in a thorough, yet relatively expedient manner. He is recognised for his highly analytical approach, which has been tried and tested time and time again. Brian believes in a collaborative approach to litigation and works as part of a team to reach an agreed plan with clients for successful resolution of each dispute. He is comfortable with technical legal issues, devours large quantities of complex documentation, and is in his element in the courtroom. Notable cases in which he has been instructed, listed below are a testimony to his ability and his popularity with his clients.

AREAS OF PRACTICE

Specialities of practice involve:

• Liability disputes involving technical points of law or expert evidence.
• Quantum involving life-changing or catastrophic injuries. He is familiar with the nuances of accommodation claims, care regimes and PPOs in the context of serious limb trauma, spinal injury, and brain damage claims.
• Fatal Accident Act claims, especially involving business interests and/or complex financial arrangements.
• Joint Settlement Meetings and Mediations, with clear prior risk-benefit analysis, spreadsheet preparation, and co-operative 'tough but fair' negotiation.

The selection of concluded cases below from the last 5 years, many of which are reported, give a good flavour of Brian's practice.

RECENT NOTABLE CASES

• LM v. PM (2020): settlement of brain damage claim for capitalised sum of £2.7 million involving hard fought dispute on numerous heads of claim, in particular on over-provision of therapies and support worker assistance.
• Phillips v. Clayton Williams (2020): settlement and approval of seven figure Fatal Accident Act claim on behalf of family of PC David Phillips, the victim of manslaughter arising from a Liverpool police chase in which the heroic deceased was deliberately run over when deploying a ‘stinger’ to stop the defendant’s vehicle. https://thepolicememorialtrust.org/pc-david-phillips/
• Kore v. Brocklebank [2019] EWHC 3491 (Mr Justice Turner): appeal on Fatal Accident Act claim involving the meaning of section 2(3) of the 1976 Act. Does a claimant pre-action have representative status for all dependants?  https://www.lawtel.com/UK/AC5009728
• JQ v. MOD (2019): settlement of birth injury clinical negligence case on behalf of MOD where claimant in his 20s who had managed conventional schooling suffered an organic personality disorder/anxiety leaving him unable to work or engage in activities outside his home. Claimant would not tolerate intervention but sought a 24 hour care regime. Settled for £2,250,000 lump sum plus £20,000 rising to £59,000 periodical payments.
• Jackson v. Hilti UK Limited (2019) Leeds County Court, HHJ Gosnell. Defeating £1m+ chronic pain case on factual/medical causation. Dr Simpson vs Dr McDowell as pain experts.
• Blake v. 1) Croasdale 2) Esure [2018] EWHC 1919 (QBD). Successful defence of alleged £3million brain damage case on basis of ex turpi causa.  Claimant was a passenger in a vehicle of alleged drug-dealers fleeing from the police. https://www.lawtel.com/UK/Searches/2511/AC5004191
• Axa Insurance v. 1) Financial Claims Solutions 2) Aurangzaib [2018] EWCA Civ 1330. Leading authority on exemplary damages in the tort of deceit. Affirmed availability of exemplary damages where fraud against insurers in personal injury litigation. https://www.lawtel.com/UK/Searches/456/AC5003248
• Tuson v. Murphy [2018] EWCA Civ 1461. Court of Appeal authority on whether defendants can avoid the usual order where claimant guilty of malingering/fraud if Part 36 made with knowledge of the fraud.  The underlying case reduced a seven-figure claim to low six figures. https://www.lawtel.com/UK/AC5003386
• Ford v. 1) Northern Rail  2) QBE Insurance [2018] EWHC 1417 (QBD): successful High Court appeal against finding for claimant at first instance in industrial disease case involving fraud. Replaced leading silk for purposes of the appeal.  https://www.lawtel.com/UK/Searches/456/AC5003690
• Rhys Williams v. 1) McMurrays Haulage 2) WM Morrisons [2018] EWHC 2079 (QB).  Part 20 Claim between Defendants after catastrophic injury to Claimant’s hand and wrist.  Contribution claim unsuccessful but pursued on economic grounds after excellent settlement with claimant meaning trial was cost effective. https://www.lawtel.com/UK/Searches/456/AC5003920
• McHugh v. Okai-Koi [2017] EWHC 1346 (QBD): ex turpi causa, contributory negligence in high profile fatal case involving a road rage death in both tragic and unusual circumstances which gained national media attention https://www.lawtel.com/UK/Searches/5639/AC9902257  and https://www.standard.co.uk/news/london/nurse-sued-for-250000-over-road-rage-death-of-london-mother-a3502726.html Claim was for £1.5 million, not £250k as reported by the Standard.
• Blake v. 1) Croasdale 2) Esure [2017] EWHC 1336 (QBD): a leading authority on resiling from admissions in cases involving change of value  https://www.lawtel.com/UK/Searches/5357/AC9902257
• Select Car Rentals v. Esure Services Limited [2017] EWHC 1434 (QBD): leading authority on insurers’ ability to obtain third party costs orders against credit hire companies  https://www.lawtel.com/UK/Searches/5450/AC0154930
• Shui v. University of Manchester [2018] ICR 77, Employment Appeal Tribunal decision exploring case management involving litigants-in-person suffering severe mental illness https://www.lawtel.com/UK/Searches/5535/AC0155386
• Hatfield v. 1) Drax & 2) SG Transport (2017) HHJ Belcher: liability dispute arising out of truck accident leading to amputation. £2 million claim dismissed http://www.civillitigationbrief.com/2017/09/15/an-expert-report-that-was-extraordinary-in-its-presentation-and-shot-through-with-breath-taking-arrogance-this-doesnt-end-well/
• Jahan & Ali v. MIB 2015: fatal accident cases and nervous shock claims on behalf of families of victims killed in the 'Birmingham riots' in the summer of 2011.  Settled at JSM.  https://www.theguardian.com/uk-news/2015/jul/28/tariq-jahan-sons-death-2011-riots-birmingham
• Express Solicitors v. Elite Insurance 2015: commercial litigation involving solicitors suing market leading ATE insurer for £500k unpaid indemnities.  Acted on behalf of the insurer defendant raising issues of breach of policy terms.  Counterclaimed in respect of unpaid premiums.  Settled on advantageous terms.
• Lancashire Business Park fire litigation 2015: instructed on behalf of electricians defending claims for fire damage worth £30million by owners of property in Lancashire Business park. Clients paid out £2million by insurers through 'discharge of liability' clause and so effectively self-insured. Settled on basis that lay client came out with money left over. Some 20 parties involved. https://www.bbc.co.uk/news/uk-england-lancashire-16298158 
• Mason v. PJ Myers & Co (2014): 5-day trial for defendant against Silk. Hand injury leading to CRPS leading to a spinal cord stimulator leading to wound infection and back pain leading to falling down stairs leading to serious injury to other hand leading to morphine addiction. Significant credibility and complex causation issues. Claimant accepted Part 36 on day 4.
• Advising and acting for motor insurers in many of the highest profile 'fraud ring' cases (eg Operation Orion in 2008: deceit claim on behalf of 7 insurers against 63 defendants, Operation Koyna in 2015: deceit claim by Aviva against 20 defendants). Brian no longer undertakes RTA fraud work, but this litigation gave great experience in court craft and case preparation involving voluminous documentation and multiple parties.