David Myhill

David has notable expertise in relation to claims arising out of defective products, whether brought under the Consumer Protection Act 1987, in contract or in tort. He has considerable experience of acting for manufacturers, but also acts for individual claimants as well as for insurers bringing subrogated recovery actions or contribution claims arising out of damage caused by defective products. He is frequently involved in multi-jurisdictional disputes (globally, across Europe and also within the UK jurisdictions). Examples of his experience are set out below.

Product liability: medical devices and pharmaceuticals

David has acted in relation to claims made in respect of allegedly defective medical devices or pharmaceutical products (some of which are confidential and cannot be set out on this CV). He is familiar with the major regulatory regimes and their role in claims brought by end users. He is well versed in dealing with complex scientific literature, both in terms of the formulation of pharmaceutical products, but more frequently when analysing issues of causation.

Some examples include:

• The Pinnacle Metal on Metal Hip Litigation (Gee v DePuy [2018] EWHC 1208 (QB)) – David acted for the successful defendant (DePuy) in this large group action concerning the Pinnacle metal-on-metal total hip replacement. The case involved a trial lasting for four months, and determined important issues regarding the approach to be adopted under the Consumer Protection Act 1987 in relation to medical devices. David was junior counsel alongside Richard Sage and Lara Knight, and was led by Alexander Antelme KC and Michael Spencer KC. David was involved throughout, and had a heavy involvement in the scientific aspects of the case, including analysing the orthopaedic, immunology, histopathology and statistical evidence in preparation for trial.
• Hastings v Finsbury Orthopaedics Limited [2022] UKSC 19. David assisted the Scottish legal team throughout this litigation involving metal-on-metal hip prostheses, and appeared in the Supreme Court for the successful Defender (Finsbury Orthopaedics Limited) led by Kenny McBrearty KC (Scottish Advocate) and Alexander Antelme KC, alongside Ewen Campbell (Scottish Advocate). This case was the first Supreme Court decision to consider the Consumer Protection Act 1987.
• Lewin v Glaxo: David acted for the Defendant (Led by Alexander Antelme KC) in a claim relating to a radiological contrast medium, Myodil, which the Claimant alleged to have caused significant injuries decades after its use in the 1970s. The case required David to understand complex scientific evidence, including historical literature regarding Myodil, as the question of whether it had caused the Claimant’s alleged injuries was in dispute between the parties. The claim was ultimately discontinued.
• Acting in respect of various claims arising out of allegedly defective intraocular lenses.
• Acting in a claim concerning allegedly defective spinal “cage” implants alleged to have failed thereby causing personal injury.
• Acting for one of multiple Defendants in connection with a claim against the manufacturer of an arterial stenting device, which is alleged to have caused the Claimant serious injuries when it failed to deploy properly.
• Wilkes v DePuy International Limited [2016] EWHC 3096 (QB). David acted at trial for the Defendant, DePuy. The case concerned a fractured femoral stem forming part of a hip prosthesis, and revisited the key provisions of the Consumer Protection Act 1987 and the decision in A v National Blood.
• Acting (led by Alexander Antelme KC) the manufacturer in the litigation concerning the ASR metal- on-metal hip implant.
• Representing the manufacturer of allegedly defective sun cream (claim discontinued following service of Defence).
• Acting in respect of claims brought in respect of allegedly defective surgical.

Product liability: non-medical devices

David also has wide experience of claims resulting from defective products (both consumer and non-consumer) outside the field of medical devices. He is routinely instructed in claims for contribution in chains of suppliers/producers where property damage (or personal injury) has been caused by allegedly defective products, which frequently involve both direct claims in contract and claims under the Civil Liability (Contribution) Act 1978. He is also frequently asked to advise upon issues relating to the Third Parties (Rights against Insurers) Act 2010 (and its predecessor) where suppliers or manufacturers have become insolvent.

Examples include:

• Acting, led by Alexander Antelme KC and Toby Riley-Smith KC, with Richard Sage and Freddy Simpson, on behalf of Renault in the Nissan/Renault NOx Emissions Group Litigation. David has been involved in all aspects of the litigation, including at the selection of Lead GLOs, case management hearings and at a hearing to determine the application of the French Blocking Statute (Joshua & others v Renault SA and others [2024] EWHC 1424 (KB)).
• Acting, led by Andrew Rigney KC, in a claim in contract and tort involving seven parties arising from the unintentional activation of an industrial foam fire suppression system causing many millions of property damage.
• Acting in multi-party litigation on behalf of the manufacturer (based out of the jurisdiction) of an aerosol which is alleged to have exploded causing an injury to the user.
• Drafting pleadings and advising in respect of a recovery claim arising out of a fire caused by a defective miniature circuit breaker in a domestic property.
• Acting in a subrogated claim on behalf of a homeowner in connection with a fire caused by allegedly defective solar panels.
• Acting in connection with a multi-party claim arising out a fire at an industrial complex allegedly caused by the design of a tank heater.
• Representing the insurer in a subrogated recovery claim in respect of a major loss caused by flooding of a domestic property as a result of the failure of a pressure reducing valve.
• A subrogated recovery arising out of flooding resulting from the failure of a sump pump in a luxury property.
• Representing the user of a horse bit which failed in use, causing serious injury, in a claim against the manufacturer under the Consumer Protection Act 1987.
• Advising and acting at mediation in relation to subrogated recovery action on behalf of the insurer of a car dealership against the manufacturer and distributor of a defective light fitting which caused a serious fire.
• Acting for the insured in a claim concerning the failure of pipework in office premises resulting in an escape of water.
• Representing the occupiers of an office building in a subrogated recovery claim arising out of the incorrect operation of a recently installed valve on a cold water header tank.
• Flood damage caused to residential property by the failure of a filtration device in a domestic swimming pool.
• A claim brought in respect of an allegedly defective domestic stepladder, the failure of which resulted in serious personal injury.
• Representing, led by Andrew Rigney KC, the owners of property stored in a large warehouse destroyed by a fire started by a defective light fitting.
• Acting for domestic property owners in a claim for contamination of their own land arising out of the alleged failure of (plastic) heating oil storage tank.

David has a strong practice in the field of clinical negligence. In this work, and his work in the allied field of pharmaceutical and medical products, David is particularly applauded by clients for his ability to rapidly grasp and analyse complex medical and scientific principles and literature.

He undertakes work for the National Health Service, various medical defence organisations and medical insurers, as well as for claimants. His initial years in Chambers spent undertaking numerous personal injury trials have given him a wealth of trial experience as well as a familiarity with procedural matters relevant to clinical negligence claims, such as issues of limitation and costs. David has experience of acting at all stages of clinical negligence claims: from pre-action work (including representation at inquests) through to settling pleadings, advisory work, and acting at trial.

His expertise is reflected by the fact that he acted, in the Supreme Court, on behalf of the Forth Valley Health Board in the leading decision of McCulloch v Forth Valley Health Board [2023] UKSC 26 which considered the extent of the obligation on clinicians to advise in respect of ‘reasonable alternative treatments’ following the decision in Montogomery.

Selected Cases

Examples of David’s experience at court include:

• Acting, led by Una Doherty KC (Scottish Advocate) and with Ewen Campbell (Scottish Advocate) for the successful Defender in McCulloch v Forth Valley Health Board [2023] UKSC 26, the leading case on informed consent post-Montgomery.
• Acting on behalf of the NHS Trust at a complex interim payment application in Cripps (aka Snudden) v Norfolk and Norwich University Hospitals NHS Foundation Trust [2024] EWHC 615 (KB), which considered the principles applicable to a request by a claimant for an interim payment founded on a claim for the costs of a commercial surrogacy arrangement.
• Acting at trial for the successful NHS Trust in connection with a claim arising out of surgery to remove gallstones.
• Acting at trial for the successful NHS Trust in a claim arising out of allegedly negligent PUVA treatment.
• Acting at trial for an NHS Trust in a 3 day trial in relation to the proper management of a patient following a total knee replacement, including allegations of failure to diagnose deep infection. Claimant discontinued mid-trial, following cross-examination of his expert.
• Acting at trial in a secondary victim claim arising out of an out of hospital cardiac arrest.
• Acting at trial in relation to issues of consent arising out of management of a traumatic orthopaedic injury.
• Appearing at trial for the Defendant in relation to allegations of consent and surgical negligence in relation to spinal surgery.
• Acting at trial for the Defendant to a claim arising out of alleged mismanagement of a pulmonary embolism in a 33 year old man, resulting in his death. The case also involved difficult issues of quantification under the Fatal Accidents Act 1976.
• Acting for the successful NHS Trust in a 4 day trial (liability only) on the question of breach of duty in relation to the proper management of osteomyelitis of the tibia.
• Acting at trial on behalf of a GP who was alleged to have failed to diagnose ascending lymphangitis. The claim was dismissed following a 2 day trial.
• Acting for the successful NHS Trust in a 3 ½ day trial involving issues of breach of duty and causation (which turned on both lay and expert evidence) arising out of permanent incontinence allegedly caused by inadequate catheter care during labour.
• David’s experience also includes advisory work at all stages of a claim, as well as representing clients in mediations and Round Table Meetings and at interim hearings. He frequently represents clients both in the High Court and County Court in relation to interim matters, such as cost budgeting, disputes concerning the extent and timing of expert evidence required, and arguments regarding whether claims should be dealt with by way of a split trial.

Mediations and Round Table Meetings

David regularly represents clients in these forms of negotiation. He has particular skill at handling such forms of negotiation sensitively, particular where they arise out of death or serious injury, regardless of whether he is acting for or against the injured party. His recent experience includes:

• Acting on behalf of a Claimant who suffered a brain injury as a result of a dislodged endotracheal tube, led by Farrah Mauladad KC, which settled for a multi-million pound lump sum plus substantial periodical payment order.
• Acting on behalf of a Claimant who has suffered serious birth injuries, led by Caroline Harrison KC, which settled for a multi-million pound lump sum plus substantial periodical payment order.
• Acting on behalf of a Claimant in a highly unusual claim under the Fatal Accidents Act 1976 whereby an acrimonious dispute following death led to a need for different family members to be represented by different legal teams, and which involved a challenge in connection with whether the Claimant had lived with the Deceased for 2 years prior to death.
• Representing, at a Round Table Meeting, the dependents following a death caused by a failure to timeously diagnose partial anomalous pulmonary venous drainage.
• Representing various NHS Trusts at mediations and Round Table Meetings in claims in which liability and/or quantum was in issue. David frequently acts on his own against Leading Counsel. Recent examples include:
  • A claim pleaded at nearly £10 million arising out of alleged mismanagement of a spinal injury (Claimant represented by a silk and junior; David as sole counsel).
  • A hypoxic brain injury claim pleaded at in excess of £3 million (Claimant represented by a silk and junior; David as sole counsel).
  • Several claims arising out of shoulder dystocia pleaded at between £1 and £4 million, frequently involving Leading Counsel.
  • A number of claims under the Fatal Accidents Act 1976 involving complex issues in connection with loss of financial dependency, most frequently issues connected to inherited family businesses and complicated pension arrangements.
  • A case involving a below knee amputation pleaded at in excess of £1 million.
  • Sole counsel in claim arising out of the death of a high earner pleaded at in excess of £1 million and involving a complex pension loss claim.
  • A case arising out of allegedly negligent knee replacement surgery, pleaded at over £1 million.
  • Acting at mediation in relation to a claim arising out of allegedly delayed diagnosis of cauda equina syndrome pleaded at well over £2 million.
  • Acting in a number of claims pleaded at up to £500k arising out of pressure sore management.

• Representing an NHS Trust in a Round Table Meeting in a case in which the Trust was alleged to have failed to properly treat injuries sustained in a road traffic accident caused by a co-defendant, raising difficult questions concerning apportionment and a break in the chain of causation.

Advisory Work

David is regularly instructed to settle the pleadings, and to advise on issues of liability and, in particular, quantum. He has regular experience of producing Schedules and Counter- Schedules in claims involving complex future losses, in particular, extensive care and case management regimes, accommodation adaptations and loss of pension claims. His experience includes the following (a number of which are ongoing):

• Settling the Defence on behalf of an NHS Trust (led by Alexander Antelme KC) in a claim arising from alleged mismanagement of a wrist fracture, which was alleged to have ultimately caused the Claimant to develop depression, alcoholism and suffer a fall rendering him paraplegic. The allegation that the alleged negligence caused the paraplegia was abandoned following service of a detailed Defence.
• Advising General Practitioners in connection with several claims involving allegations of negligent management of patients with a diverse range of presentations.
• Acting on behalf of a Claimant who suffered serious injuries as a result of an epidural.
• Acting on behalf of an injured Claimant in relation to negligently performed dentistry.
• Advising an NHS Trust in respect of a complex claim for substantial damages (including provisional damages) arising out of negligently performed keyhole surgery.
• Acting on behalf of a Claimant in relation to a secondary victim claim arising out of mismanagement of labour resulting in his wife’s cardiac arrest and the stillbirth of their baby. The claim settled after proceedings were issued.
• Acting on behalf of a Claimant in relation to the negligent management of Crohn’s disease, resulting in extensive and unnecessary surgery. The claim settled following an exchange of offers.
• Acting on behalf of a Claimant in relation to the negligent management of her pregnancy leading to her son’s stillbirth and causing ongoing injuries as a result of failing to properly manage symphysis pubis dysfunction. The claim settled following an exchange of offers.
• Settling Defences on behalf of NHS Trusts in relation to allegations of negligence as diverse as: provision of advice as to mode of delivery; errors in closing a laparotomy; appropriateness of a “do not resuscitate” order and failure to invasively ventilate resulting in death; provision of unnecessary cardiac treatment; failure to properly treat a displaced gastric band; and errors made during a TVT procedure.
• Advising on quantum and settling Schedules and Counter-Schedules in cases involving issues such as loss of pension entitlements, loss of collateral benefits (e.g. company car), neurological rehabilitation, complex or unusual accommodation claims, complicated care regimes falling short of 24 hour care, complex issues relating to subtle hypoxic brain injuries, acceleration of underlying conditions and cases involving extensive pre-existing comorbidities.
• Settling pleadings and advised on matters relating to the Mental Health Act 1983, including a claim in which it is alleged that a patient was improperly detained/treated and one focussing upon the interaction between the MHA 1983 and the provision of treatment (without consent) at common law.

David has had a wide experience of insurance-related matters, in particular, coverage disputes arising out of non-disclosure or alleged breaches of conditions precedent under the policy. He has experience of claims which pre-date the Insurance Act 2015 (although such claims are increasingly rare) as well as claims arising since that act came into force. He is also experienced in claims involving consumers under the Consumer Insurance Disclosure and Representations (CIDRA) Act 2012.

Selected Cases

David’s experience includes:

• He is currently instructed in respect of a number of claims on behalf of insurers whereby there is a dispute concerning the insured’s right to an indemnity under a policy of insurance. David’s expertise covers most types of policy, but he is currently instructed in a number of disputes under property or contents cover and which involve:
  • Arguments concerning misrepresentation or non-disclosure and an insurer’s right to avoid the policy, including claims involving fraud.
  • Arguments regarding the construction of policy terms (both in respect of the extent of what the insurer has agreed to insure, or the amount of cover available).
• Acted at mediation on behalf of an insurer who was the victim of a fraudulent claim under a policy, which resulted in the insured agreeing to pay a portion of the insurer’s costs.
• Acted for the insurer in connection with a claim concerning misrepresentation as to the purpose to which a property was used when a policy was taken out, and which was discovered following a fire.
• Acted as junior counsel to Andrew Rigney KC on behalf of insurers in relation to a claim in the TCC pleaded at in excess of £6m. The claim arose out of a fire during renovation works, and involved issues of non-disclosure, misrepresentation and breach of condition precedent under an insurance policy to which it was alleged the Consumer Insurance Disclosure and Representations (CIDRA) Act 2012 applied.
• Settled the Defence on behalf of a major insurer and acted at mediation in a claim involving non-disclosure, misrepresentation and breach of condition precedent in relation to commercial premises damaged by flooding.
• Acted (led by Daniel Shapiro KC) in a leading case relating to the limits and proper interpretation of an alleged aggregation clause at first instance and in the Court of Appeal: Spire Healthcare Limited v Royal & Sun Alliance Insurance Limited[2022] EWCA Civ 17.
• Acted (led by Ben Quiney KC) in a claim in the Commercial Court relating to the proper interpretation and effect of a Hot Works exclusion clause.
• Acting for insurers in relation to a claim arising out of a failure to comply with conditions precedent in relation to the heating of warehouse premises which were damaged by an escape of water from a sprinkler system. The case involved a number of issues of insurance law, as well as several procedural issues, and the claim was discontinued shortly after service of the Defence drafted by David.
• Advising on the application of the Construction Plant-Hire model conditions in cases involving the alleged negligence of a crane operator and construction machinery destroyed by fire.
• Settling the pleadings in a relation to a claim involving material non-disclosure and breach of warranty in relation to losses to neighbouring property arising out of a fire at industrial premises.

David has experience of professional negligence actions against a variety of individuals. David’s cases frequently arise in the context of his other areas of expertise.

Selected Cases

Examples of recent instructions include:

• David regularly acts in claims against lawyers arising out of under-settlement or negligent conduct of clinical negligence claims. He currently acts in a number of ongoing cases at various stages of litigation. By way of example, a case in which he acted on behalf of a Claimant whose solicitor had missed limitation and poorly advised on the possibility of a discretionary extension of the limitation period settled for a substantial six figure sum.
• Acting in a broker’s negligence and insurance coverage dispute valued at c£2m+ in the Commercial Court, led by Ben Quiney KC.
• Acting for a property developer in relation to a c£100k claim against its former solicitor arising out of a failure to properly convey and register certain parcels of land obtained in the course of a complex property transaction.
• Acting for the solicitors in relation to alleged negligence in connection with the grant of easements in a conveyancing transaction.
• Acting for a homeowner in a c£45k dispute arising out of the failure of a solicitor to identify disputes regarding the right of way to her property at the time of the conveyance.
• Provision of advice in relation to solicitors’ negligence in the conduct of family proceedings, in particular alleged under-settlement of ancillary relief proceedings often arising out of pension sharing arrangements.
• Acted for a claimant in a claim arising out of a failure to properly advise on the terms of a lease. Provision of Advice on the liabilities of a surveyor appointed under the Party Wall Act 1996.
• Settling the pleadings (as junior counsel to Roger ter Haar KC) in a claim against a bloodstock agent for breach of his duties to his client.
• A number of claims arising out of the alleged negligence of solicitors, especially in the course of conveyancing transactions.

David has substantial experience of claims arising out of damage to property, most of which are subrogated recovery actions. These cases often overlap with his product liability experience. Examples of his experience include:

• Fire claims:
  • Instructed in connection with a subrogated claim arising out of a fire caused by defective solar panels in a domestic property.
  • Acting in connection with a multi-party claim arising out a fire at an industrial complex allegedly caused by the design of a tank heater.
  • Led by Andrew Rigney KC in a claim in contract and tort involving seven parties arising from the unintentional activation of an industrial foam fire suppression system causing many millions of property damage.
  • David was instructed (led by Ben Quiney KC) on behalf of a roofing contractor in relation to a claim in the Commercial Court in which it was alleged that the roofing contractor caused a fire causing substantial damage to a restaurant, with the claim pleaded at in excess of £3.5m.
  • David acted as junior counsel to Andrew Rigney KC on behalf of insurers bringing a c£17m subrogated claim on behalf of Claimants who had stored their goods in warehouses at the Lancashire Business Park, Leyland, and which were destroyed in a fire in December 2011. The claim involved 18 Claimants and was brought against both the landlords and freeholders. The matter settled after Particulars of Claim were served.
  • David acted on behalf of insurers of a car dealership in respect of a subrogated recovery claim for a fire which caused substantial damage to the premises, and which was caused by a defective light fitting. The matter settled at mediation.
  • He acted as junior counsel to Andrew Rigney KC on behalf of insurers in relation to a claim in the TCC pleaded at in excess of £6m. The claim arose out of a fire during renovation works, and involved issues of non-disclosure, misrepresentation and breach of condition precedent under an insurance policy to which it was alleged the Consumer Insurance Disclosure and Representations (CIDRA) Act 2012 applied.
  • He has acted on several cases involving major fires in domestic premises, often involving issues arising out of defective products or workmanship causing fire. These cases often involve insurance disputes, either in respect of coverage or attempts by landlords to recover against tenants where a joint names insurance policy is in place.
  • David acted as junior counsel to Andrew Rigney KC in a c£3m subrogated claim in the Technology and Construction Court arising out of a fire which occurred at an aluminium factory following the failure of a CO2 extinguishment system.
  • He was instructed as junior counsel on the team acting for Total (UK) Limited in defending claims arising out of the incident at the Buncefield Oil depot in 2005. He acted on 10 claims, each brought for in excess of £200k, and was led by Daniel Shapiro (now KC) and Michael Curtis KC in a dispute pleaded at some £80m+.

• Escape of water claims:
  • David regularly acts in flood or water damage claims on behalf of insurers pursuing a subrogated recovery.
  • Acted on behalf of the insurers of a luxury property damaged by flooding caused by a failed pressure reducing valve.
  • David acted on behalf of insurers pursuing a subrogated recovery arising out of flooding resulting from the failure of a sump pump in a luxury property.
  • David acted in a subrogated recovery action arising out of major damage caused to commercial premises as a result of the incorrect operation of ball valves in header tanks.
  • David is also instructed in several cases involving damage to domestic and commercial properties caused by alleged poor (or incomplete) workmanship by plumbers. Examples include escapes of water from underfloor heating systems, escape of water from recently repaired pipework and a failure to identify and repair damage to pipework.

• Miscellaneous claims:
  • David has wide experience of other forms of property damage claim. Examples include: damage caused by tree roots; damage caused by building work taking place on neighbouring premises; and damage caused by a vehicle colliding with buildings on private land.
  • He acted for the insurers in a subrogated claim against the builder of a house with a variety of defects, a claim which ultimately settled but which involved a dispute as to the proper interpretation and application of s1 of the Defective Premises Act 1972.

David regularly appears at inquests, especially those in a healthcare context or which involve allegedly defective products. He is experienced at addressing Coroners on the types of issues which frequently arise in this context, including the scope of the inquest (i.e. whether it is an Article 2 inquest), matters of disclosure, whether parties should have the status of interested persons at the inquest, whether a jury is required, and whether it is appropriate to add a rider of ‘neglect’ to the Coroner’s conclusion.

As with the rest of his practice, David has experience of representing both care providers and manufacturers, as well as families, at inquests. He is adept at handling matters with the sensitivity required at such hearings whilst enabling his client to advance evidence in the most effective way possible.

Recent inquests in which David has been involved have concerned:

• A fire caused by an allegedly defective battery in an electric bike.
• A death caused when a patient was dropped by an ambulance crew due to the use of an incompatible wheelchair on an ambulance ramp.
• A complex 2 week inquest involving a fall from a car park (determined to be suicide) following lengthy involvement of the police and fire service.
• The frequency of observations on an acute admission ward, the adequacy of care provided in residential care homes, and the operation of a mental health unit including the adequacy of patient monitoring.