Philip De Berry

PROFILE

Phil has developed a very busy personal injury, professional negligence and Court of Protection practice. Phil has appeared before the Court of Appeal, High Court and Divisional Court in appeals and catastrophic injury cases. He is familiar and adept in dealing with the issues arising in catastrophic brain injury matters, fatal accidents and complex medical causation cases. His costs expertise makes him ideal for interlocutory matters involving costs management.

Phil is known for his strong trial advocacy, his tactical awareness and determination to leave no stone unturned in preparing and conducting a case. He likes to be involved at an early stage and welcomes the opportunity to have input as a case proceeds. Phil appreciates the need to be accessible and offers a swift turnaround of papers, often within 7 days.

Away from work, Phil enjoys all sports and once qualified as a skydiver. More recently, life has been more sedate with a large family taking up most of his free time.

AREAS OF PRACTICE

PERSONAL INJURY

Phil is busy with a wide range of personal injury matters acting for both claimants and defendants. The development of his practice has resulted in a greater focus on catastrophic injury claims, fatal accidents and higher value cases. Phil has developed specialist interests in areas such as industrial disease and claims relating to sexual offences. He also has extensive experience of pursuing appeals, largely successfully, in various courts. He is routinely instructed to advise in cases valued over £2 million.

Notable reported cases:

• Andrew Chell v Tarmac Cement and Lime Limited [2022] EWCA Civ 7 – Phil was led by a silk in this claim which involved novel arguments concerning horseplay and vicarious liability in the work environment. The Court of Appeal hearing was televised.
• X (a child) v First Tier Tribunal (Social Entitlement Chamber JR/1444/2017) - before Mr Justice Wright, Phil was involved in a successful judicial review of a First Tier Tribunal decision relating to a brain injury sustained by a young child.
• Palfrey v Morrisons - [2012] EWCA Civ 1917 – available on Lawtel – success for Phil in an appeal and cross appeal regarding a tripping accident in a supermarket.
• McNally v Various, Newcastle CC, (17/10/14) – This case was an appeal before the DCJ in which it was determined that disclosure of a pre-action non part-35 expert report did not come within the scope of the principle established in Edwards v Tubb. Judgment available upon request.

INDUSTRIAL DISEASE CLAIMS

Phil has extensive experience of mesothelioma cases includes attending evidence on commission hearings, JSMs, show cause hearings and trials. Phil has acted against silks at times and been involved in cases which push the boundaries of the principles addressed in Bussey. Asbestos cases now form the bulk of Phil's industrial disease practice, although he continues to accept instructions in relation to other areas of industrial disease, including other respiratory disease, HAVS, deafness and RSI type cases. Phil has attended numerous inquests on behalf of Claimants and Defendants in connected proceedings.

Notable cases for which transcripts are available include the following:

• Ness v Lendlease [2023] EWHC 1219 (KB) - a long-running fatal mesothelioma case resulted in judgment for Phil’s client following a three day liability trial.
• Smith v Jed Weld, (2013) Sheffield County Court, Lawtel – an industrial disease case which focused on breach of duty and medical causation. Cross examination of medical experts proved to be decisive.
• Aldred v Courtaulds Textiles (2012) - Liverpool County Court (LTL 6/2/13) – a four day case which exclusively concerned medical causation in NIHL claims. The claim was novel in that it was the first time the Court had been asked to consider the concept of averaging hearing threshold levels from different audiograms.

PROFESSIONAL NEGLIGENCE

Clinical negligence claims form a significant part of Phil's practice. He has also attended inquests on behalf of families and local authorities where clinical negligence is alleged. Phil recently wrote a case analysis for Lexis in respect of Snow v RUH Bath NHS Foundation Trust (https://www.lexisnexis.co.uk/legal/news/novel-treatment-negligent-surgeons-a-cautionary-tale-snow-v-ruh-bath-nhs-foundation-trust)

Phil has experience of a wide variety of professional negligence matters. He offers considerable expertise in claims against personal injury and industrial disease lawyers, including claims relating to the Claims Handling Agreements for Industrial Diseases and costs related matters.

Philip’s experience is not limited to claims against legal representatives. He was recently involved in a claim for veterinary negligence, involving a novel claim for damages for distress pursuant to Milner v Carnival. Phil has also advised on claims against expert witnesses.

TRAVEL LAW

Phil has undertaken cases in relation to general PI and alleged food poisoning arising from holidays abroad. Examples include:

• Acting for a Claimant in relation to a road traffic accident in Spain.
• Acting for a Claimant regarding a quad biking accident in Bulgaria.
• Acting for an insurer defending claims pertaining to a bus accident in Italy.
• Acting for a Claimant seeking damages for a slipping accident at a hotel in the Dominican Republic.

FRAUD

Phil has conducted many RTA trials where fraud is in issue, mostly on behalf of Defendants. Findings of fundamental dishonesty have been established on innumerable occasions. Phil also has experience of successfully pursuing committal proceedings.

CIVIL CLAIMS FOR CRIMINAL ACTIONS: SEXUAL OFFENCES

Phil has acted for a number of high profile and high net worth clients defending allegations of sexual impropriety with claims valued up to £300k.

CIVIL CLAIMS FOR CRIMINAL ACTIONS: THE POLICE

Phil has acted for Claimants in relation to allegations of trespass, assault, false imprisonment and harassment. Past experiences include conducting

jury trials in both civil and criminal proceedings. Phil has good insight and background understanding related to these claims having been a police station advisor prior to becoming a barrister.

COSTS

Costs litigation has formed a part of Phil’s practice for many years. He has experience of conducting costs cases valued in excess of £1m and group litigation. His costs practice has involved him appearing in a variety of courts including the Upper Lands Tribunal. Phil enjoys the knotty, technical cases which often result in appeals. He is routinely instructed to draft points of dispute and replies in high value cases.

Phil is also experienced in claims relating to solicitor-client issues, especially where it is alleged that a retainer has been wrongfully terminated or a solicitor has failed to act in accordance with the agreement.

Reported past successes include the following:

• Southern v Zurich Insurance PLC, 13/7/21 - an appeal from a DJ to a Circuit Judge in which the Claimant successfully overturned a ruling QOCS costs protection should be disapplied. The case concerned the ambit and meaning of CPR44.15(1)(c), conduct of a Claimant or someone acting on the Claimant’s behalf and with their knowledge which is likely to obstruct the just disposal of proceedings.
• Whitstance v Valgrove - Ref: Lawtel 12/10/09 - the Designated Civil Judge in Manchester considered the effect of the changes to Part 36 in relation to offer, acceptance and withdrawal of offers. This decision was later considered in the case of Gibbon v Manchester City Council [2010] EWCA Civ 726.
• Sherred v Western Housing – Manchester County Court - HHJ Holman (DCJ) considered the appropriate test for pre-action disclosure and overturned the decision at first instance which had been adverse to the Claimant.
• Connaughton v Imperial College NHS Trust - Master Howarth, SCCO 30/7/10 Ref: Ltl 9/8/10 - A case concerning the recoverability of costs prior to a win under the Law Society Model CFA. The decision was in favour of the Claimant and set a precedent which has since been followed.

INQUESTS

Phil started acting in inquests many years ago through his industrial disease work. He now acts for both professional clients and families in a wide range of inquests.

Recent examples include the following:

• Representing a GP practice following a death by self harm. The inquest lasted 8 days and focused on the treatment, management and support offered to the deceased.
• Acting on behalf of a supported living service following an alleged suicide. This case involved issues concerning medical negligence and the adequacy of supervisory care.
• Acting on behalf of the family in a case involving potential clinical negligence in the treatment of lung cancer.

COURT OF PROTECTION

Phil has been acted in some high profile cases in which the COP was tasked with determining whether P should receive the Covid-19 vaccine. This included appearing in the High Court on appeal on behalf of the CCG in one seminal matter. The citations for judgments in this case are as follows:

• A CCG v DC [2022] EWCOP 2
• MC v a CCG [2022] EWCOP20

Examples of Phil's other COP work include the following:

• Pursuing committal proceedings through to a final hearing on behalf of a Local Authority. The proceedings were a last resort to address the behaviour of a family member determined to undermine the placement of P.
• Acting for family members attempting to remove P from a care home to be cared for at home.
• Representing family members in a matter concerning the capacity of a loved one to grant lasting powers of attorney.
• Acting for the CCG in a matter which involved funding issues with the Local Authority.
• Acting for an Integrated Care Board regarding best interest decisions concerning the accommodation of P.
• DOLS application pursuant to the streamlined procedure concerning P who wished to explore and maintain sexual relationships

SEMINARS

Phil routinely provides training for instructing solicitors and is available for seminars upon request.