Thomas Herbert

Call: 2014
Thomas Herbert

Since becoming a tenant, Tom has rapidly built a busy practice spanning all areas of Chambers’ work, with a particular focus on inquests, clinical negligence and industrial disease claims. He is regularly instructed in complex cases, including those attracting media interest, and combines first-class analytical ability with compelling written and oral advocacy.

Notwithstanding this focus of his practice, Tom is a versatile advocate and enjoys working across many areas of law. This is demonstrated by the breadth of his instructions on applications, at trial and on appeal, from personal injury and disease to construction disputes and costs.

Recent and ongoing cases of note include:

  • Junior to Patrick Limb QC representing two well-known airlines in ongoing High Court litigation concerning alleged aerotoxicity.
  • Advice and representation (with Philip Turton) at a four-week Article 2 inquest into the death of a 13-year-old girl by hanging. This included a recusal application made at the pre-inquest review stage.
  • Advice and successful representation at an appeal against the refusal of relief from sanctions in a long-running contractual dispute.
  • Advice and representation of the deceased’s family in relation to ongoing coronial proceedings arising from a failure to prescribe anticoagulant medication. The civil claim settled for £400,000 and received court approval on the basis of Tom’s advice.

Before coming to the Bar, Tom studied Chemistry at the University of York and graduated with a Master’s degree before studying the Graduate Diploma in Law and Bar Professional Training Course at Nottingham Law School. He achieved a distinction in his GDL and was graded “Outstanding” on the BPTC, obtaining the highest mark in his year in Civil Litigation.

While at Law School, he was also a successful mooter. He won the annual Inter-Inn moot for the Inner Temple, came second in Chambers’ mooting competition and won the Nottingham Law School/Kaplan varsity moot, which was judged by Lord Carnwath at the Supreme Court.

As a result of his scientific background, Tom has a rigorous, analytical approach. He enjoys dealing with abstract or technical points of law and is adept at dealing with engineering issues and complex calculations. His background means that he is particularly well-placed to analyse chemical, pharmaceutical and statistical evidence and converse with experts in those fields.

Tom frequently delivers lectures and seminars to solicitors. Recent topics include vicarious liability, expert evidence and applications for security for costs.

Away from the Bar, Tom’s interests include current affairs, food, and hiking. He is a school governor at his former primary school in Nottinghamshire.

Inquests

Tom has established a busy inquests practice since joining Chambers and is building an excellent reputation is this area. He routinely acts for families and other interested persons at pre-inquest review hearings and at inquests, both where proceedings (civil or criminal) are likely to follow and where matters are unlikely to be taken any further. His experience includes inquests involving deaths in or related to primary and secondary care, deaths of vulnerable adults in care homes, accidents at work and road traffic accidents.

The inquests at which Tom appears are frequently dominated by complex questions of fact and medical causation, raising issues such as neglect and the applicability of Article 2. He is accordingly experienced in making legal submissions and questioning lay and expert witnesses in such matters.

Examples of recent work include:

  • Advice and representation (with Philip Turton) at a four-week Article 2 inquest into the death of a 13-year-old girl by hanging. This included a recusal application made at the pre-inquest review stage. The inquest attracted intense media interest: To read an example article, please click here.
  • Representation of the CQC at a five-day jury and Article 2 inquest following a care home death. The matter received local media attention: To read an example article, please click here.
  • Representation of the deceased’s family at a five-day jury inquest concerning the deaths of two young children who contracted a rare strain of E. coli poisoning. There were questions as to the adequacy of the primary and secondary care both children received. The matter received national media attention: To read an example article, please click here.
  • Representation of an insurer at an inquest into a death arising from a road traffic collision. The deceased had left his vehicle, under the influence of drugs, and was in the carriageway at the time of the collision with the insured driver’s vehicle.
  • Representation of the deceased’s family at a one-day inquest following a death in hospital. The coroner issued a Prevention of Future Deaths report due to concerns over the lack of timeous review by a senior doctor.
  • Representation of the deceased’s family at a four-day jury inquest following a workplace accident. A civil claim in the High Court is ongoing.

Clinical Negligence

Tom has a rapidly developing clinical negligence practice. He advises, drafts pleadings and acts across a broad spectrum of medical work, including dental negligence. Many of his cases follow inquest proceedings. He has experience of high-value claims, complex causation arguments, issues of informed consent and Fatal Accidents Act claims. He generally acts in cases worth up to £500,000.

Tom’s scientific background means that he is adept at conducting conferences with experts. He has also questioned numerous experts through his coronial practice, from GPs to consultant paediatric nephrologists.

Examples of recent work include:

  • Advice and representation of the deceased’s family in proceedings arising from a failure to prescribe anticoagulant medication. The claim settled for £400,000 and received court approval on the basis of Tom’s advice.

  • Drafting pleadings in relation to an alleged failure to obtain informed consent for a spinal fusion operation.

  • Drafting pleadings and advising in conference with a consultant haematologist and cardiologist in a claim arising from an alleged failure to act upon a high eosinophil count.

  • Advice on quantum in a claim concerning a failure to examine and seek an orthopaedic review of a surgical wound, leading to an above-the-knee amputation.

Disease

Industrial disease work forms a significant part of Tom’s practice. He has particular experience of noise-induced hearing loss claims and regularly acts for both Claimants and Defendants, dealing with medical causation, breach of duty and limitation. He is also familiar with claims relating to occupational asthma, asbestos-related disease, occupational stress, COSHH and work-related upper limb disorders.

Claims arising from exposure to chemicals are a particular interest, given Tom’s background.

Examples of recent work include:

  • Junior to Patrick Limb QC representing two well-known airlines in ongoing High Court litigation concerning alleged aerotoxicity (allegedly caused by exposure to chemicals such as organophosphates).

  • Instructed on an appeal concerning the scope and extent of adverse inferences in noise-induced hearing loss claims. Tom successfully represented the Defendant at trial. The Claimant’s appeal was withdrawn shortly before the hearing.

Personal Injury

Tom deals with personal injury cases across all tracks, including advice on procedure and tactics. He is regularly instructed by Claimants and Defendants across the full range of personal injury disputes, including employers’ liability, public liability, occupiers’ liability, defective premises, product liability and Highways Act claims. Accidents in schools are a particular interest.

He has a busy trial practice and regularly attends interim hearings. He is sought after for his concise and robust drafting, particularly of Defences.

Examples of recent work include:

  • Representation of the Defendant at a two-day trial in an employers’ liability matter. Following cross-examination of the Claimant, Tom called no evidence and made submissions that there was no case to answer. The claim was dismissed.
  • Representation of the Claimant in a liability-admitted matter arising from the partial amputation of the Claimant’s ring finger. The matter settled for a six-figure sum.
  • Advising a Defendant in relation to contribution proceedings against a manufacturer following the settlement of a personal injury claim.

Costs & Litigation Funding

In pupillage, Tom assisted with legal research in a number of notable decisions such as Jones -v- Spire Healthcare Ltd [2016] 3 Costs LO 487 (assignment of conditional fee agreements) and Essar Oilfields Services Ltd -v- Norscot Rig Management PVT Ltd [2017] Bus LR 227 (costs awards in arbitration proceedings).

In his own right, he regularly attends CCMCs, for both Claimants and Defendants, as well as other costs applications and hearings.

Examples of recent work include:

  • Representation at an appeal concerning a costs order made against a litigant in person in a small claims matter arising from a contractual dispute.

  • Instructed on an appeal concerning the recoverability of an ATE insurance premium in clinical negligence proceedings. The matter was stayed pending a related Court of Appeal decision and was ultimately compromised.

  • Representation of the Defendant on an application concerning the fixed recoverable costs of an application for pre-action disclosure where the substantive application was compromised prior to the hearing. Tom’s article on the decision was published in the May 2018 edition of the Personal Injury Law Journal. To read the article, please click here.

Insurance

Tom often advises insurers in respect of coverage and indemnity issues, predominantly in a personal injury and industrial disease context, though instructions have covered areas as diverse as criminal prosecutions and employment law.

He has also advised insurers at a more strategic level as to their approach to underwriting certain classes of work.

Examples of recent work include:

  • Advising an event management company in relation to an insurance coverage dispute arising out of its operation of a national sporting event, both in relation to an intimated personal injury claim and the staging of the event in the future.

  • Advising an insurance company in relation to a claim under the Third Parties (Rights Against Insurers) Act 2010 in relation to an ATE insurance policy which the underwriters purported to avoid for material misrepresentation and non-disclosure.

  • Strategic advices for an insurance company in relation to coverage of Japanese Knotweed claims and PPI claims.

Commercial Dispute Resolution

Tom has broad experience across a range of commercial matters, from simple debt collection to complex contractual disputes, particularly in relation to construction matters. He represents clients in court and in all forms of Alternative Dispute Resolution.

He has experience of disputes arising from breach of contract, claims involving wrongful interference with goods, construction disputes, misrepresentation and restitution claims.

Examples of recent work include:

  • Advice and successful representation at an appeal against the refusal of relief from sanctions. The matter – a contractual dispute – subsequently settled at court on the day of trial following several days of negotiations between counsel.

  • Representation of the judgment creditor in enforcement proceedings in the High Court.

  • Advice and representation in a multi-track commercial dispute where the key issue was the proper construction of a guarantee clause.

  • Advice and representation at a round-table meeting in a construction dispute. The matter ultimately settled on terms favourable to Tom’s client.

  • Advice in relation to a dispute arising from the shipment of cargo to China. Evidential issues arose in relation to proving breach of contract and legal questions arose as to mitigation of loss.

Property & Real Estate

As a result of his time working as a paralegal in a firm of family law solicitors prior to pupillage, Tom has a special interest in claims relating to beneficial interests in property (constructive trusts and proprietary estoppel).

He has appeared at the final hearings of numerous claims under the Trusts of Land and Appointment of Trustees Act 1996 and is experienced at drafting pleadings and advising on such matters.

Public Sector & Not for Profit

Tom has a niche interest in special educational needs and disability law, which is informed by – and informs – his activities as a school governor. He has appeared in the First-tier Tribunal and has also drafted submissions on costs in relation to special educational needs proceedings.

Appointments

  • Direct Access Qualified

  • Chair of the Civil Court Users Committee, Nottinghamshire Law Society

Memberships

  • Personal Injuries Bar Association
  • Nottinghamshire Medico-Legal Society
  • Royal Society of Chemistry

Education

  • BPTC (Outstanding), Nottingham Law School
  • GDL (Distinction), Nottingham Law School
  • MChem (Hons) Chemistry, University of York

Notable Cases

  • Inquest touching the death of AP: A four-week Article 2 inquest into the death of a 13-year-old girl by hanging. The matter attracted intense media interest: To read an example article, please click here.

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