Colleen Cumbers

Colleen is developing a strong construction practice, advising and drafting on behalf of both claimants and defendants as well as being instructed to represent parties in court, including in an unled trial in the TCC.

Her recent work in this area includes:

• Acting for the Claimant in an upcoming three-day TCC trial arising out of non-payment of six-figure invoices with a substantial counterclaim for damages for misrepresentation and recovery of alleged overpayments. Colleen has already appeared at an application hearing and CCMC in this case and has advised on and settled the Amended Reply and Defence to Counterclaim following new limitation arguments raised by the defendant. She is awaiting trial dates.
• Settling the Reply in a High Court case (BNP Paribas Depository Services Ltd & Anor v Briggs & Forrester Engineering Services Ltd [2024] EWHC 2903 (TCC)) involving a dispute over the scope of work under a contract and the parties’ various obligations under the Control of Asbestos Regulations 2012 (during pupillage).
• Advising a claimant (a tenant) as to potential avenues for bringing a claim in relation to installation of pipework in breach of building regulations during construction of a residential property. As a result of the defective installation, the heating at the property did not work, making the property unfit for human habitation.
• Advising on a contractor’s duty to warn pursuant to a JCT 80 Minor Works 2011 contract in a claim worth well over half a million pounds. Specifically, Colleen was instructed to advise on whether the main contractor, who had no design responsibility in relation to the relevant roofing works, had a contractual or tortious duty to warn of any design defects.
• Settling the Defence on behalf of a sub-contractor alleged to have negligently installed plumbing and heating apparatus during the conversion of an apartment block, leading to flooding which caused almost £150,000 of damage. Issues included whether the sub-contractor had any design responsibility for the works in question and whether a duty to warn arose.
• Settling the Reply to Counterclaim on behalf of a firm of architects accused of breach of contract and professional negligence in relation to alleged failures to properly submit a planning application prior to the implementation of legislative changes which would increase costs for the client.
• Representing a builder at a preliminary hearing in a claim for the costs of remedying allegedly defective insurance repairs following latent defects becoming apparent. Colleen raised substantive legal arguments in relation to the pleaded causes of action leading to a direction that the claimant better particularise his claim.
• Acting for the respondents in an upcoming three-day appeal of an award made under the Party Wall etc. Act 1996. Matters in issue include the jurisdiction of the surveyors to make the award in question.  At the CMC, Colleen successfully resisted efforts by the appellants to stay proceedings and she has since prepared the skeleton for the appeal which is listed for the Autumn.
• Drafting instructions to a Single Joint Expert in a Party Wall etc. Act 1996 dispute.
• Preparing the skeleton for a DIAC arbitration concerning sums of over 50 million Qatari Riyal which arose out of a dispute between two construction companies existing under the laws of the UAE. Colleen’s skeleton was submitted for use in the arbitration (during pupillage).

Colleen also frequently deals with claims arising out of accidents on construction sites – see the Personal Injury section of her profile.

Colleen is a member of the Technology and Construction Bar Association (TECBAR) and the Society of Construction Law (SCL).

Colleen has experience in a range of commercial disputes. Her recent work in this area includes:

Civil Fraud and Unjust Enrichment

• Being instructed as part of a team of juniors to assist with a document review in an insurance case arising out of fraudulent “placement” of a (non-existent) reinsurance policy by a sub-broker with damages in the region of £15 million. During pupillage, Colleen had drafted a skeleton on behalf of the claimant for the CMC in this matter which addressed, amongst other issues, the appropriateness of a split trial.
• Settling the Particulars of Claim on behalf of an employer in a claim for restitution of unjust enrichment, namely the receipt of sick pay payments to which the employee had no entitlement due to breaches of various terms of the contract of employment.
• Settling the Defence on behalf of the promoter of a tax mitigation scheme in relation to an alleged secret commission claim valued at over £1.5 million (during pupillage).

Director’s Duties and Fiduciary Duties

• Advising a director of a company in relation to bringing a claim against a fellow director following their misappropriation of company funds in breach of fiduciary duty. The director accused of misappropriation alleged that they were a creditor of the company and were entitled to appropriate the sums in question. As the director had since left the country, service of proceedings and enforcement of any subsequent judgment were relevant considerations.

Sale of Goods and Services

• Contracts for Services: Advising on whether a clause excluding liability for anticipated savings operated to limit the claimant’s recoverable losses and whether, in any event, the claim in its entirety was capped at £2 million on the basis of a liability cap. This matter included consideration of the Unfair Contract Terms Act 1977 (during pupillage).
• Contracts for Services: Assisting Elizabeth Boon in advising a leading UK university in relation to a claim against it by a former student for damages of over £5 million for loss of earnings following wrongful expulsion. Specifically, Colleen assisted with advising on the application of abuse of process and res judicata on the basis that there had been previous legal proceedings in relation to the alleged breach which had resulted in declarations made in favour of the claimant.
• Contracts for Services: Settling the Reply and Defence to Counterclaim on behalf of a firm of solicitors claiming the sum of unpaid invoices from their clients. The dispute arose in relation to whether services fell within the existing retainer or amounted to a distinct retainer for which additional sums were due – a matter turning on contractual interpretation.
• Contracts for Services: Successfully negotiating settlement in advance of the hearing of an application by the other side for summary judgment. The claim arose out of a contract between the claimants and an estate agency. Colleen represented the claimants, previously litigants in person, who had alleged that, pursuant to the terms of the contract between the parties, commission was not due to the estate agency, and that, in any event, the service was performed negligently and so there was a defence of set-off.
• Contracts for Services: Advising a company in relation to an application to set aside default judgment in a claim arising out of unpaid invoices for shipping services. The company had queried the raising of the invoices, but the shipping company had proceeded to issue proceedings prematurely for the sum of the unpaid invoices plus substantial interest. Colleen provided advice and drafting ahead of the application hearing.
• Sale of Goods: Settling the Defence on behalf of the importer and mid-chain supplier of an allegedly defective motorcycle in a claim for repair costs. Issues included whether a product recall should have been issued and whether the importer/mid-chain supplier owed duties to the claimant as the ultimate purchaser of the product. Colleen subsequently drafted an application for strike out/summary judgment and will appear at the hearing of this application later this year.
• Consumer Law: Securing judgment for the claimant in a claim against a removals company. In the course of the provision of the service, the claimant’s items were damaged. Sums owed to the claimant were in dispute due to a purported liability cap under the contract. The case turned on interpretation of contract terms between the parties and the Consumer Rights Act 2015.
• Consumer Law: Acting for a well-known chain of hotels in a claim for breaches of the Consumer Protection Act 1987 and the Consumer Rights Act 1987 on the basis of the supply of an allegedly defective food product which caused a hotel guest to suffer a serious anaphylactic shock.

Colleen also frequently advises and drafts pleadings in cases arising out of supply of services contracts where property damage has been suffered as a result of alleged breach of the implied or express terms of that contract. See the Property Damage section of her profile for examples of recent work in this area.

Colleen has been awarded a Pegasus Scholarship as part of which she will undertake a placement at a commercial law firm in the UAE as well as in the DIFC Courts. This will provide an opportunity to further her knowledge of and exposure to commercial litigation and arbitration, especially within an international context.

Colleen is a member of COMBAR (the Commercial Bar Association).

Colleen has experience in relation to a range of insurance and reinsurance disputes including coverage disputes, allegations of misrepresentation, and declinature of cover.

Colleen’s recent work in this area includes:

• Being instructed as part of a team of juniors to assist with a document review in an insurance case arising out of fraudulent “placement” of a (non-existent) reinsurance policy by a sub-broker, with damages in the region of £15 million. During pupillage, Colleen had drafted a skeleton on behalf of the Claimant for the CMC in this matter which addressed, amongst other issues, the appropriateness of a split trial.
• Obtaining strike out of a claim against an insurer for failure to provide cover under an insurance policy on the basis that the claim was brought against the wrong entity.
• Setting aside default judgment in a claim against an insurer for failure to indemnify an insured in respect of property damage sustained during an RTA. Colleen successfully argued that the insurer had a real prospect of defending the claim on the basis that upon inception of the policy, the insured had made qualifying misrepresentations as per the Consumer Insurance (Disclosure and Representations) Act 2012.
• Advising the insurer of a housing association on the prospects of recovering its outlay under a property insurance policy in relation to fire damage allegedly caused by a tenant. Issues included whether the insurance policy was for the benefit of both the housing association and the tenant, and the application of the Rowlands principle.
• Advising an insurer on the prospects of declining cover on the basis that the alleged tortfeasor was a labour only sub-contractor as opposed to a bona-fide sub-contractor (during pupillage).
• Advising an insurer on the prospects of declining cover in relation to a proposed claim arising out of contaminated batches of beer, specifically advising on questions of whether there had been damage to property or simply production of a defective product, and whether a financial loss extension applied (during pupillage).
• Settling the Defence to a High Court claim for a declaration that insurers were bound to indemnify the various claimants’ businesses in respect of interruption caused by the COVID-19 pandemic (during pupillage).
• Representing an insurer at the preliminary hearing of a claim brought by an insured for failure to indemnify him in respect of curtailment of his holiday due to illness. Colleen obtained an unless order providing that the insured (a litigant in person) was required to particularise how his holiday was said to be curtailed and what section of the policy provided cover for those circumstances, Colleen having argued that the wording of the policy did not provide such cover.

Colleen has experience of acting on behalf of both claimants and defendants in relation to professional negligence claims, including matters involving accountants and financial professionals, construction professionals, insurance brokers and agents, solicitors, and medical professionals.

Her recent work in this area includes:

Accountants and Financial Professionals

• Settling the Defence to a High Court claim against the promoter of a tax mitigation scheme in relation to alleged failures to give adequate warnings as to the risks of the scheme being challenged by HMRC (during pupillage).

Construction Professionals

• Settling the Reply to Counterclaim in a case in which she represented a firm of architects accused of breach of contract and professional negligence in relation to alleged failures to properly submit a planning application prior to the implementation of legislative changes which would increase costs for their client.

Insurance Brokers and Agents

• Being instructed as part of a team of juniors to assist with a document review in an insurance case arising out of fraudulent “placement” of a (non-existent) reinsurance policy by a sub-broker, with damages in the region of £15 million. During pupillage, Colleen had drafted a skeleton on behalf of the Claimant for the CMC in this matter which addressed, amongst other issues, the appropriateness of a split trial.

Solicitors

• Preparing the Letter of Response on behalf of and advising a firm of solicitors whose client, a real estate company, alleged a failure by the solicitors to advise it to bring a Part 20 claim against its managing agent when it faced (and ultimately settled) a six-figure claim for breach of a repairing covenant. Issues included whether the client had failed to mitigate its loss in failing to recover the entirety of the sums to which it says it was entitled by way of the Civil Liability (Contribution) Act 1978.
• Preparing the Letter of Response on behalf of and advising a firm of solicitors in relation to a claim arising out of an alleged loss of chance to purchase open land from a local council due to an alleged failure to advise on the time limit for issuing judicial review proceedings.
• Preparing the Letter of Response on behalf of a firm of solicitors alleged to have mismanaged a claim for personal injuries, specifically by failing to prepare and file witness evidence in line with the Court’s directions, resulting in the defendant obtaining strike out of the claim.
• Settling the Reply and Defence to Counterclaim on behalf of a firm of solicitors accused of providing negligent advice which led to a breach of bail conditions and further acting negligently in the course of custody proceedings, specifically failing to properly instruct Counsel, altering witness statements without the Claimant’s knowledge, and making inappropriate comments in open court.
• Settling the Defence on behalf of a firm of solicitors accused of failing to adequately advise their clients about rights of way during the conveyancing of a property under a retainer agreement, allegedly leading to a dispute between the clients and their neighbour.
• Settling the Reply and Defence to Counterclaim on behalf of a firm of solicitors accused to have provided negligent advice and representation in relation to divorce proceedings.

For Colleen’s recent work in relation to claims against medical professionals, see the Clinical Negligence section of her Chambers profile.

Colleen is a member of the Professional Negligence Bar Association.

Colleen has experience of acting on behalf of both claimants and defendants in relation to property damage claims, including matters involving escapes of water, fire damage, electrical damage, road traffic accidents, as well as other causes of damage to property. Much of her drafting and advisory work involves subrogated recoveries.

Colleen’s recent work in this area includes:

Escapes of Water

• Advising on and subsequently settling the Particulars of Claim in relation to a property damage claim arising out of negligent installation of pipework at a residential property leading to three separate escapes of water which caused substantial damage.
• Advising the owner of a property as to the prospects of success of a proposed claim under the Defective Premises Act 1972 against a contractor alleged to have carried out pipework which led to a leak causing approximately £150,000 of damage and made the premises unfit for human habitation. Issues included whether there was sufficient evidence of the unworkman-like or negligent manner of carrying out the works.
• Settling the Defence on behalf of a sub-contractor alleged to have negligently installed plumbing and heating apparatus during the conversion of an apartment block, leading to flooding which caused almost £150,000 of damage. Issues included whether the sub-contractor had any design responsibility for the works in question and whether a duty to warn arose.

Fire Damage

• Advising the insurer of a housing association on the prospects of recovering its outlay under a property insurance policy in relation to fire damage allegedly caused by a tenant. Issues included whether it was possible to establish that the tenant caused the fire as well as application of the Rowlands principle.
• Settling the Particulars of Claim in a High Court claim against a motor vehicle body repairing company whose breaches of the Health and Safety Executive publication on Safe Use and Handling of Flammable Liquids led to a serious fire which spread to and destroyed a neighbouring commercial premises (during pupillage).
• Settling the Particulars of Claim in a High Court case concerning the failure of a residential school to adequately supervise pupils so as to prevent them causing damage to a local grade II listed historic building (during pupillage).
• Drafting a position statement for pre-action mediation on behalf of a party who installed a wood burning stove at a property which was subsequently subject to a serious fire. Issues included responsibility for the construction of and knowledge of the composition of a combustible wall adjacent to the stove, as well as compliance with the relevant Building Regulations (during pupillage).

Electrical Damage

• Obtaining strike out in a property damage claim in which she represented a well-known energy company accused of negligent installation of a smart meter leading to a power surge which damaged electrical appliances.

Road Traffic Accidents

• Settling the Particulars of Claim on behalf of a property owner who suffered significant losses following a vehicle driving into his premises.
• Uncovering a seemingly insignificant date of signature in a large volume of documents which she used to successfully argue for the dismissal of a property damage claim in its entirety, despite liability having been admitted.
• Representing a highway authority in a claim alleging a failure to maintain a highway in accordance with the Highways Act 1980, leading to damage of a vehicle. Colleen raised a section 58 defence to argue that such care as in all the circumstances was reasonably required had been taken.
• Succeeding in a late application for permission to rely on expert evidence from an engineer speaking to causation and quantum despite opposition from the other side on the basis that we were only a month away from trial.

Other

• Securing judgment for the Claimant in a property damage claim against a removals company. The case turned on interpretation of contract terms between the parties and the Consumer Rights Act 2015.
• Settling the Defence on behalf of a sub-contractor engaged to erect perimeter protecting fencing. During ground excavation, the company allegedly damaged underground electricity cables owned by a distribution network operator. Issues included the main contractor’s responsibilities with regard to providing information to the sub-contractor about the location of underground services and identifying the same (during pupillage).
• Settling the Defence on behalf of company engaged to install windows at a residential property. The company allegedly failed to carry out a pre-work survey leading to the installation of unsuitable windows which caused structural damage to the property requiring substantial remedial work. Issues included compliance with the relevant Building Regulations.
• Settling the Defence on behalf of a flooring specialist alleged to have negligently carried out repairs to damaged flooring in a school’s sports hall, leading to substantial further damage and the needs for repairs in the sum of £100,000. Colleen advised on and drafted Part 20 proceedings against the original installer of the flooring.

Colleen is developing a strong paper practice in this area. Examples of her recent work include:

• Settling the Defence on behalf of a well-known chain of hotels in a claim for breach of the Consumer Protection Act 1987 on the basis of the supply of an allegedly defective pre-packed for direct sale (PPDS) food which caused a hotel guest to suffer a serious anaphylactic shock.
• Settling the Defence on behalf of the importer and mid-chain supplier of an allegedly defective motorcycle in a claim for repair costs. Issues included whether a product recall should have been issued and whether the importer/mid-chain supplier owed duties to the claimant as the ultimate purchaser of the product. Colleen subsequently drafted an application for strike out/summary judgment and will appear at the hearing of this application later this year.

During pupillage seats with Richard Sage and Patrick Maxwell, Colleen gained exposure to work in the field of international arbitration. Work included:

• Preparing the Letter of Response in relation to an application for the provision of insurance coverage evidence in an arbitration – valued at more than $25 million – under the Arbitration Act 1996 and the UNCITRAL Arbitration Rules 202 (during pupillage).
• Preparing the skeleton argument for a DIAC arbitration involving sums of more than 50 million Qatari Riyal. Issues included the operation of set-off under the UAE Civil Code. Colleen’s skeleton was used in the arbitration (during pupillage).

Colleen has been awarded a Pegasus Scholarship as part of which she will undertake a placement at a commercial law firm in the UAE as well as in the DIFC Courts. This will provide an opportunity to further her knowledge of and exposure to international arbitration.

Colleen also gained exposure to international litigation and arbitration during her LLM, as part of which she selected International Trade Law as a specialist subject, with studies that included jurisdiction as well as the ICC and the LCIA rules. Colleen was awarded a high Distinction grade.

Colleen has written an instructive article on the topic of enforcing foreign arbitration awards in the courts of England and Wales for Chambers’ Commercial Law Blog. You can read her article here.

Colleen is also a member of the Young International Arbitration Group.

Colleen has a broad personal injury practice, accepting instructions to advise and draft pleadings on behalf of both claimants and defendants in a wide variety of cases. She is also frequently instructed in personal injury trials, as well as in application hearings and CCMCs.

Colleen’s recent work includes:

General

• Succeeding in an application to resile from a pre-action admission of liability on the basis of the Claimant having initially reported and pleaded an incorrect accident date.
• Obtaining a costs order against a claimant’s solicitors due to their delays in obtaining and disclosing medical reports. The Judge also made an unless order providing that unless finalised medical evidence was obtained and disclosed within three weeks, the claim would be struck out.
• Successfully resisting an application for further expert medical evidence, specifically a report in relation to “clinically significant psychological symptoms” not addressed in existing medical reports. Colleen obtained costs against the claimant.
• Successfully appearing in an application and directions hearing in the High Court in a multi-track personal injury case valued in the six figures. Matters included the appropriateness of a liability split, and amendments of directions to trial following an admission of primary liability.
• Representing the defendant at a CCMC and succeeding in reducing the claimant’s costs budget by almost 50%.
• Obtaining a costs order against a claimant’s solicitors due to inadequate preparation for a CCMC in an industrial disease claim, most notably an inappropriate proposed direction in relation to Part 18 requests and a failure to adequately consider the need for expert evidence.

Claims brought under the Defective Premises Act 1972

• Settling the Defence and Counter-Schedule on behalf of a housing association in a claim brought under the Defective Premises Act 1972. Issues included whether the landlord had been put on notice of a defective boundary wall which ultimately fell on the tenant.
• Settling the Defence on behalf of a housing association in a claim brought under the Defective Premises Act 1972 following a tenant tripping due to defective floor tiling. While the housing association had inspected the tiling prior to the accident and photographed the defect, Colleen argued that the defect was not to the degree that any (immediate) remedial works had been required.
• Successfully resisting an application made on the day of trial to amend the pleadings in a claim brought under the Occupiers’ Liability Act 1957 to instead bring the claim under the Defective Premises Act 1972 upon Colleen raising at the outset of the trial that the claim was bad in law.

Employers’ Liability

• Securing dismissal of a claim against an employer for failure to adequately risk assess or provide adequate training in relation to the task of raising/lowering a rhino post in a car dealership forecourt. Colleen successfully argued that the task was so straightforward that it did not merit risk assessment or specific training beyond general instruction.
• Settling the Defence on behalf of a principal building contractor who allegedly provided its sub-contractor with faulty equipment, specifically a faulty slab lifter, which lost power, causing a concrete slab to fall onto an employee’s hand.
• Settling the Defence and Counter-Schedule on behalf of a venue in a claim brought by an employee for serious injuries suffered during a fall down a staircase. The claim, pleaded at over a quarter of a million pounds, largely related to loss of future earnings and loss of congenial employment on the basis of the serious injuries suffered allegedly preventing the Claimant from pursuing a career as a beauty therapist.
• Settling the Defence and Counter-Schedule on behalf of a manufacturer in a claim brought by a former employee for alleged failings to provide adequate training in the use of allegedly dangerous tools, resulting in permanent scarring.
• Settling the Defence and Counter-Schedule in a claim for alleged failings on the part of a care home to arrange repairs to an allegedly defective lift or to adequately warn its employees of the danger. The claim was brought by an employee who had an accident which resulted in personal injuries and significant loss of earnings.

Occupiers’ Liability

• Advising a claimant in relation to prosects of success against an occupier of a venue following injuries suffered in a sporting context, specifically the issue of obvious risk when participating in a dangerous activity, namely bouldering.
• Settling the Defence and Counter-Schedule on behalf of the occupier of one of the largest membrane electrolysis units in Europe. A visitor to the site sustained personal injuries allegedly as a result of inadequate risk assessment and warnings on site.
• Settling the Defence on behalf of a company hosting bingo events at various premises around the country. Colleen pleaded that the claimant, who had suffered personal injuries at one such event, had no basis for a claim against the company as the contractual agreement between the company and the premises clearly reflected the company not being an occupier of the premises.
• Settling the Defence and Counter-Schedule on behalf of a restaurant in a claim brought under the Occupiers’ Liability Act 1957. While liability was admitted, complex issues arose in relation to medical diagnosis, causation, and prognosis due to significant relevant medical history and a similar unrelated accident occurring shortly after the index accident.
• Obtaining dismissal of a claim for personal injuries brought under the Occupiers’ Liability Act 1957 on the basis that the second defendant was a landlord and the legislation did not apply in the circumstances of the case.

Food Contamination and Allergies

• Settling the Defence and Counter-Schedule on behalf of a well-known chain of hotels in a claim in which a hotel guest suffered a serious anaphylactic shock after allegedly being given incorrect information in relation to the allergens contained in a complimentary food product.

Road Traffic Accidents

• Advising a passenger who had suffered injuries due to a black cab driver pulling away from a stationary position before the passenger was seated. Particular issues arose due to disclosed Strava data revealing inconsistencies in relation to the passenger’s reporting of his injuries to the instructed medico-legal expert.
• Obtaining a finding of fundamental dishonesty following a causation and quantum trial. Following extensive cross-examination, Colleen submitted that the Claimant had not suffered any personal injuries in a road traffic accident notwithstanding a medical report in support of his alleged injuries and the defendant not having obtained any medical evidence. Colleen achieved a costs award in favour of the defendant following the disapplication of QOCS.

Historic Abuse / Claims Against Local Authorities

• Advising a claimant in relation to prospects and next steps in a High Court case concerning historic sexual abuse/assault while the claimant was a looked-after child. Advice included the operation of s. 33 of the Limitation Act 1980.
• Advising a claimant in respect of prospective proceedings against a school and/or a local authority and/or the police in respect of a failure to protect a child from harassment, bullying, physical violence, and sexual violence, causing psychological harm.

Other

• Securing strike out of a claim against a well-known chain of pharmacies for psychiatric injuries alleged to have been caused by a delay in providing medicine to the claimant. Colleen achieved a costs award in favour of the defendant following the disapplication of QOCS.

Colleen is a member of the Personal Injury Bar Association (PIBA).

Colleen’s recent work in this area includes:

• Advising the family of a patient who died following a late diagnosis of malignant melanoma. Issues included whether it was possible to establish breach of duty and causation, as well as practical issues such as the need for further expert evidence.
• Advising a claimant as to prospects of success in a proposed claim against an NHS dentist and NHS trust. The Claimant alleged that the dentist’s negligent assessment and NHS Trust’s wrongful refusal to provide alternative treatment led to him incurring the costs of private dental treatment.
• Settling the Defence on behalf of a private healthcare provider in a claim for delayed diagnosis allegedly resulting in a missed opportunity for surgical intervention and consequently permanent functional impact on the Claimant.
• Advising an NHS Trust in relation to the value of a claim arising from the death of a patient following a missed diagnosis of aortic dissection, liability having been admitted, and settling the Counter-Schedule of Loss to the claim which was pleaded at well over £1 million (during pupillage).
• Appearing against a KC in an infant approval hearing in which the wording of an order for a six-figure interim payment was disputed.