Brian McCluggage

Personal Injury

Brian McCluggage is the Head of the 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.  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.

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

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    - H v. RM Auctions (Sothebys) (2018). Acting on behalf of internationally known billionaire in respect of his £1.3 million rare Ferrari F50 written of in tragic circumstances by storage company used by leading international auction house. Settled at mediation for £1.25 million. Issues of contract and bailment. Background to accident well publicised: https://www.bbc.co.uk/news/uk-england-hampshire-43226196

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– 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.

Insurance Fraud

Though Brian McCluggage is now predominantly as catastrophic injury lawyer, he enjoyed 15 years of experience in litigating fraud cases and led the industry in some of the most high profile cases involving exemplary damages, fraud rings and tort of deceit. He still accepts instructions in interesting or high profile disputes often with a reputational angle for insurers. Recent work includes Axa v. Financial Claims Solutions [2018] EWCA Civ 1330, the first Court of Appeal authority on exemplary damages in the insurance fraud context. Brian advised and acted in this case which clarified ‘textbook law’.

His extensive experience of fraud litigation includes:

(i) Malingering/exaggeration in high value personal injury cases.

(ii) Contrived accidents/claims: those dealt with by ‘special claims’ units.

(iii) First party insurance fraud

Brian’s approach to fraud work is that success lies in careful evidential preparation – what looks powerful on paper may not carry the same weight in the courtroom. Forensic exit routes for the fraudster must be covered off; positive evidence of fraud must be adduced with care.

Malingering and exaggeration

Brian’s strong body of experience adds value in relation to:

– Surveillance evidence: assessing what weight it will be given, and issues of timing, applications and tactics.

– Tracing the consistency of presentation between multiple expert and clinical examinations.

– Exploring fraud issues with experts such that suspicions of exaggeration are dealt with responsibly. Experts run the risk of being tainted in the eyes of the court if they blur boundaries between opinion and the court’s role of fact finder.

– Pleading of fraud and exaggeration and malingering in Defences and Counter-Schedules. Adroit language and balance are required. What we would like to say is not always what we should say.

– Cross-examination of the alleged malingerer.

Recent high value personal injury cases with fraud aspects include:

– Tuson v. Murphy (2016): exaggerated Obessive Compulsive Disorder where the claimant was supposedly unable to leave the house but was running a playgroup franchise. HHJ Harris KC order the claimant pay costs of the action for 14 months prior to acceptance of the defendant’s Part 36 offer. Costs order under appeal.

– Case of fake CRPS with symptoms mimicked by use of a tourniqet.

– Soldier contriving PTSD symptoms in claim against MOD.

– Serious foot injury but playing rugby.

RTA and motor insurance fraud

Brian has extensive experience in defending claims arising from contrived accidents, induced collisions, phantom passengers, false hire claims and the like.

He nowadays only accepts instructions in what might be called ‘special situation’ cases for insurers, for example:

(i) Reputational issues for insurers or solicitors arising from fraud allegations

(ii) Tort of deceit and exemplary damages claims

(iii) Hayward v. Zurich post-settlement issues

(iv) Committal applications for contempt of court

(v) Injunctions against fraudsters

(vi) Third party costs applications against accident management companies and hire companies.

Brian conducted motor fraud trials before most solicitors developed their own specialist departments. He has been involved with many ground-breaking cases including:

– Re: Coelum Legal (2015-2017): obtaining on behalf of Axa an injunction against a claims management company and individuals working for it to prevent them from illegally conducting litigation in breach of the Legal Services Act 2007.

– Operation Koyna (Aviva v. Hines & 14 others) (2016): HHJ Lochrane: deceit case with awards of exemplary damages exceeding £30,000 and defendants ordered to pay insurer’s costs on a joint and several basis.

– Operation Orion (Direct Line & 7 other insurers v. Suleman and 55 others) (2010): tort of deceit case in High Court involving liability trial before Wyn Williams J and quantum assessment by HHJ Holman resulting in £300,000 damages including £92,000 exemplary damages for insurers.

– Eagle Star v. Dean & Catley (2006): the first significant award exemplary damages in a motor fraud case totalling £30,000 against proprietor of well known accident management company (and members of his family) arising out of a staged 3 vehicle accident.

First Party Insurance fraud

Brian has extensive experience of issues pertinent to fraud in first party cases, including:

(i) Exaggerated loss

(ii) Breach of warranty/condition

(iii) Fraudulent devices

(iv) Non-disclosure/misrepresentation issues

He has dealt with cases involving deliberate damage, faked burglaries, arson to commercial premises.

Employment

Brian McCluggage has extensive past experience of employment law, having conducted many high profile or high value tribunal cases and numerous appeals to the EAT. He is now predominantly a high value person injury lawyer but still sits as a fee-paid judge in the employment tribunals and so remains up to date.

He would be a suitable barrister for instruction on the following classes of cases:

(i) Insurance cases with an employment element, such as litigation over a corporate Permanent Health Insurance.

(ii) Breach of contract cases involving construction of terms.

(iii) High value cases involving personal injury in the Tribunal context eg. psychiatric injury alleged to have arisen from discrimination.

(iv) Appeals in the EAT/Court of Appeal on questions of damages. His extensive experience of litigation high value personal injury cases (up to £10million in value) can give a different dimension to these cases.

(v) Employment cases involving allegations of dishonesty.

Examples of Brian’s past experience in high value or sensitive employment litigation includes:

(a) Shui v. University of Manchester [2018] ICR 77: EAT hearing on the procedural fairness of the first instance hearing where the claimant acting in person was suffering severe mental illness during the hearing.

(b) S v. XX Solicitors (2016): defending firm of solicitors against allegations of discrimination then successfully reviewing the decision to remove a finding that a partner in the firm had given evidence dishonestly.

(c) B v. House of Commons Commission (2012): acting on behalf of House of Commons in a whistle-blowing case involving a barrister working internally within the Commons.

(d) Baker v. Totesport (2011): acting on behalf of the Tote at ET in successfully defending £500k DDA claim brought by senior manager. £80,000 costs order upheld in EAT

(e) Johnson v. Lord Chancellor’s Advisory Committee (2009): defending disability discrimination claim brought by prospective magistrate.

(f) Phillips v. HMRC (2009): defending disability discrimination claim brought by solicitor applying to Government Legal Department.

(g) Cummings & ors v. Ministry of Justice (2009): defending Prison Service in civil claims brought by convicted murderers and terrorists in respect of alleged religious discrimination concerning prayer in cells.

(h) S v. Credit Agricole (2008): High court wrongful dismissal proceedings on behalf of City banker asserting £500,000 bonus.

(i) Sharma v. Manchester City Council [2008] IRLR 336, [2008] ICR 623 (EAT): PTW discrimination.

(j) Westwood v. Employment Tribunal Service (2007): ET: acting for Employment Tribunal Service in 2 week high-value disability discrimination case brought by tribunal clerk.

(k) Monk v. Body Creation (2006) Preston County Court: successful claim on behalf of disabled teenager (supported by DRC) against tattoo parlour that refused to provide services.

(l) Khan v. Heywood & Middleton NHS Trust [2007] ICR 24 (Court of Appeal): leading procedural employment case on question whether a claimant can recommence withdrawn proceedings.

Notable Cases

• JCA v. 1) CIC 2) MBD (2024) High Court, Manchester: settlement of brain injury/psychiatric case for £4.1m against Schedule of £14m as sole counsel against silk & junior. The primary issues in the case was causation of a treatment resistant severe schizophrenia – was it caused by brain injury or by genetic/drug induced reasons? If brain injury related, what care regime was appropriate given dangerous and unpredictable behaviour of the claimant?
• Bennion v. Adventure Park Snowdonia Ltd [2023] EWHC 3334 (KB): 5 day High Court liability trial defending devastating tetraplegia case following a surfing accident in the UK’s first artificial surfing lagoon.
• ABS v. LS & Esure (2023) High Court, Birmingham: settlement of serious brain and orthopaedic injury against a background of congenital physical issues and alcoholism. C left with cognitive deficits, limited use of right arm and aggravation of significant pre-existing knee problems. Life expectancy in issue. Settled for PPO on capitalised value of £3m against silk & junior.
• McD v. B (2023) County Court, Manchester: liability success at trial on running down accident on Deansgate causing significant brain injury to a drunken undergraduate. Issue of law on the ‘counterfactual’ construction of the reasonable driver – D’s own PRT or the reasonable man’s PRT?
• Sugden v. Cumbria County Council (2022): success in Highways Act case defeating claim by brain-injured cyclist riding into pothole. Judgment has implications for inspection regimes of rural local authorities, giving greater latitude to frequency of B roads.
• H v. City of York Council (2022): amputation case settled at JSM against leading & junior counsel. Claim pitched at £4m, settled at under £2m.
• BLA v. SAW (2022): serious brain injury case involving young woman who did not want excessive amounts of case management and rehabilitation foisted upon her by CM. Defendant was C’s partner giving rise to issues of relationship stability and contingencies. Issues over C solicitors approaching the insured without permission and applications to exclude evidence obtained. Settled for £2.25m.
• Monks v. Connolly Scaffolding (2022): 5-day liability & quantum trial in Manchester County Court. C alleged brain and psychiatric injury after scaffolding accident, but only recovered £3,500 rather than the £1m claimed.
• Hill v. Manchester Creative Academy (2022): success in employer’s/occupier’s liability trial involving serious injury after tripping over parking stop in school car park.
• Amdur v. Krylove (2021): 4 day trial involving claim by ‘celebrity psychic’ who alleged RTA had damaged his powers and earning capacity. FD found and claim dismissed after high octane trial. https://www.civillitigationbrief.com/2021/04/20/fundamental-dishonesty-in-pursuing-a-loss-of-earnings-claim-it-is-not-necessary-for-the-purpose-of-this-case-for-the-court-to-determine-whether-psychic-powers-exist/
• 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?
• JQ v. MOD (2019): settlement of birth injury clinical negligence case 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 PPO.
• 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.
• 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.
• 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 five-figure sum.

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• 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.
• 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.
• 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.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.
• 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.
• Shui v. University of Manchester [2018] ICR 77, Employment Appeal Tribunal decision exploring case management involving litigants-in-person suffering severe mental illness.
• 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

Appointments

Fee-paid Employment Judge (2010 to date)

A Panel, Attorney General’s Panel for Civil Work (‘Treasury Counsel’) (2002 to 2023)

Barrister Member, Bar Disciplinary Tribunal (BTAS) (2017 to 2023)

Associations

Personal Injury Bar Association

British Insurance Lawyers Association

Employment Lawyers Association

Education

MA (Hons) Law, Cambridge University

LLM, University of Toronto

Awards

Middle Temple Fox Scholar

Prescribed Information

Mr McCluggage is a practising barrister, who is regulated by the Bar Standards Board. Details of information held by the BSB about Mr McCluggage can be found here. Chambers take complaints seriously. A copy of the complaints procedure, which details the process and any time limits which may apply, can be found here. The Legal Ombudsman website provides decisions it has made about legal service providers, which can be accessed here.

Mr McCluggage’s clerks will happily provide no obligation quotations for all legal services that he provides. Clerks contact details can be found here. Mr McCluggage undertakes court and ADR work on a fixed fee basis. Advisory work is most commonly charged at an hourly rate although fixed fees are available. Conditional Fee Agreement work will be considered in appropriate cases. Mr McCluggage will typically return paperwork within 21 days, however professional commitments, complexity and volume of documentation can affect these approximate timescales.