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Gemma Witherington

Year of call: 2008

Gemma Witherington
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"She is a very determined advocate and really fights her client’s corner"

Legal 500

Gemma specialises in personal injury, clinical negligence, insurance, commercial litigation, professional negligence and costs.  She is a popular and busy advocate who is consistently recommended as a leading junior in Legal 500, in which she commended as “a real fighter and an astute thinker”.

Gemma’s experience far outweighs her year of call and she regularly appears against those senior to her.  She most recently appeared in a high profile eight-week High Court Fraud trial: Accident Exchange Ltd v Broom [2017] EWHC 1096.

Gemma is known for being approachable and client focused and for her ability to deliver robust and clear advice. She is asked to speak at numerous training events and seminars, and also gives webinars for Thomson Reuters, APIL, Datalaw and MBL.

Clinical Negligence

Gemma has extensive experience of clinical negligence work for Claimants and Defendants in a wide range of fields including claims involving obstetrics, orthopaedics, oncology, gynaecology, paediatrics, neurology, urology and general surgery.

She is frequently instructed to attend joint settlement meetings on negligent provision of treatment; catastrophic brain injuries caused at birth; failure to diagnose cancer and the negligent execution of cosmetic and gastric surgery; death resulting from delayed cancer diagnosis, loss of sight cases, wrongful birth, suicide attempts and other negligence.

She also advises on the issues that commonly arise in disease claims, including causation and evidence including technical/scientific expert evidence, parties, limitation and apportionment. She regularly advises the NHSR on tactical, quantum and liability issues.

Examples of recent work:

  • Advised the NHSR in respect of the alleged failure to diagnose and treat a patient who left A&E and committed suicide.
  • Appeared in the High Court for a plastic surgeon accused of mal practice in breast augmentation and assault.
  • Instructed on behalf of the NHS to advise and draft a Defence following a delayed diagnosis of bowel cancer for a young woman. The case concerned complex loss of chance arguments.
  • Represented a Claimant who had suffered a twisted testicle and alleged the Hospital failed to diagnose and treat his condition, leading to gangrene and the loss of a testicle and reduced fertility and erectile dysfunction.
  • Instructed to advise the NHSR in respect of the alleged failure to recognize a serious hematoma following routine eye surgery.
  • Represented the NHSR in a claim by a psychiatric patient alleging a failure to diagnose and treat him sufficiently to prevent his attempted escape from a psychiatric unit where he was tasered by the Police and sustained injuries.

Disease

Gemma is instructed in all forms of occupational and environmental disease litigation, in particular claims involving exposure to asbestos, industrial solvents, dermatitis and asthma claims, noise-induced hearing loss and vibration white finger, cancers, carbon monoxide exposure, back injuries, upper limb disorders, carpal tunnel syndrome, hand arm vibration syndrome, food poisoning and radiation exposure.

Fraud

Gemma has extensive experience of cases involving allegations of fraud or exaggeration and often involving technical expert reconstruction evidence. She is ranked in Tier 1 of the Legal 500 for fraud work.

She is regularly involved in the management of high-value and document heavy claims, including those where fraud is alleged in road traffic claims, including staged accidents (including fraud rings), slam-on accidents, phantom passenger claims and low velocity impacts.

She was instructed in Accident Exchange Ltd v Broom [2017] EWHC 1096 on behalf of the one of seven Defendants in a civil contempt of court action in the High Court arising out of the Accident Exchange litigation. This multi-party action required delicate cross-party co-operation and meticulous analysis of the evidence.

Her core specialisms include:

  • Exaggeration
  • Fraud
  • Findings of fundamental dishonesty claims
  • Section 57 of the Criminal Justice and Courts Act 2015
  • Abuse of process applications
  • Fraud rings
  • Late discontinuance in the face of allegations of fraud
  • Committal proceedings
  • Costs issues relating to fraudulent claims.

Inquests & Inquiries

Gemma appears at lengthy and complex inquests, including jury inquests concerning the right to life. She has advised and represented bereaved families, individuals, statutory bodies and corporate entities in cases covering a vast range of complex legal and factual issues. She often advises and represent parties through all stages of the civil litigation that can often follow an inquest.

She has advised and represented clients in connection with health and safety matters such as an explosion on a ship; fatal accidents in factories, a death in a lift shaft and mesothelioma claims.

Examples of recent work:

  • Acted for a lift engineering company at a 5-day jury inquest following the death of a man in a residential lift shaft. The case was extremely sensitive due to the nature of the death and the family circumstances, with HSE involvement in the background.
  • Instructed in a 5-day jury inquest to represent the family of a deceased navy officer following an explosion on a ship.
  • Acting for the family of a man who died following the incorrect insertion of a gastric feeding tube at Hospital. Gemma was instrumental in gaining a narrative verdict for the family and establishing changes of practices at the Hospital following his death.

Personal Injury

Gemma is recommended by Legal 500 as a leading individual in personal injury work.  She represents both claimants and defendants in fatal and catastrophic injury claims, including severe brain damage, spinal injuries and amputations.  She has a particular interest in cases involving significant head injuries and is sought after for settling complex Schedules and Counter schedules.

She regularly acts for many leading insurers and is experienced in group litigation. Gemma is known for her fierce advocacy and unrivaled determination to get the best results for her clients as well as for her calm manner and eye for detail.

Her core specialisms include:

Fatal Accident claims: Gemma advises on claims brought by and against Estates for bereavement damages. This often involves complex work on schedules of loss or counter schedules.

Secondary Victim claims: Gemma has advised the NHSR, NHS Wales and Claimants in respect of the prospects of success of bringing secondary victim claims, where complex issues arise in respect of whether an event in sufficiently shocking, proximity in space and time and causation.

Occupational stress: Gemma has settled and advised on many claims for occupational stress and harassment with complex medical causation issues and novel issues of quantum.

Catastrophic injuries: Gemma has considerable experience of catastrophic spinal and brain injury litigation encompassing severe cognitive conditions arising in the context of road traffic accidents and employers’ liability claims; and in the analysis of high value complex claims.  She is instructed for her success in mediations in difficult cases such as serious fatal accidents and to attend round table settlement meetings. Gemma understands the emotional difficulties involved in catastrophic cases and as a consequence of this the need for sensitivity when dealing with clients.

Motor accidents: Gemma has extensive experience of cases involving allegations of fraud or exaggeration and often involving technical expert reconstruction evidence.

Occupiers and vicarious liability claims: Gemma has broad experience for both Defendants and Claimants in occupier’s liability cases.

Animals Act and dog bite claims: Gemma has represented numerous Claimants who have suffered serious life changing injuries from dog bites; and serious injuries from falls and bites from horses.

Examples of recent work

  • Appeared in the High Court and represented two of seven Defendants in a multi-million-pound personal injury case against an alleged designer and manufacturer of a defective fairground ride.
  • Instructed by the Claimant when she was struck on the head in the course of her employment duties at work and has suffered a serious brain injury and impairment of cognitive function. Reconstruction evidence, primary liability, apportionment and quantum were all in issue.
  • Instructed to advise the National Research Council of Great Britain in respect of an injury sustained by one of their employees in Antarctica during a research mission.
  • Representing the Claimant, a young man under the age of 30, in the High Court who has suffered a brain injury following a head on collision at 80 mph. The case involved loss of cognitive function, long term care issues and complex loss of a chance arguments.

Product Liability

Gemma has experience in product liability work involving complex technical, engineering and design issues, causing serious personal injuries, property damage and business interruption.

Her recent cases have involved defective tyre claims; vehicle fires and other defects in vehicles; fire damage claims arising from faulty equipment; a fire on board a dredger ship arising from faulty fuel lines causing significant damage, and faulty playground equipment.

Insurance Funded Disputes

Gemma is regularly involved in claims involving insurers, details of which can be found in the CDR, Clinical Negligence & Personal Injury and Professional Liability sections of her profile.

Banking & Finance

Prior to joining the Bar, Gemma worked in the litigation department at an international bank which gives her a clear understanding of the pressures involved for clients in the conduct of litigation.

Gemma is regularly instructed by leading banks and lenders in relation to loans, mortgages and guarantee disputes. She is well regarded for her work in enforcement proceedings, including applications for charging orders and freezing injunctions in the High Court. She acts in strike out and summary judgment applications for large banks.

Her core specialisms include:

  • The Consumer Credit Act 1974
  • Claims for the recovery of unauthorised payments
  • Data Protection Act compliance and confidentiality issues
  • Financial Services and Markets Act
  • Mis-selling of investment products including interest rate hedging and derivatives
  • Liabilities for dishonest assistance and knowing receipt
  • Applications for freezing injunctions
  • Claims for breach of warranty
  • Factoring and invoice discounting
  • Financial mis-selling claims
  • Professional negligence involving lenders and banks, financial advisers and valuers.

Civil Fraud & Asset Tracing

Gemma has extensive experience in dealing with civil fraud cases including domestic and international fraud and has obtained freezing orders and injunctions and pre-action disclosure in order to preserve assets where there is an evasive party to a claim.

Her core specialisms include:

  • Misappropriation by directors, trustees and other fiduciaries
  • Conversion and wrongful interference with goods
  • Damages for deceit
  • Dishonest assistance and knowing receipt
  • Wrongful payment and collection of cheques
  • Fraudulent insurance claims
  • Freezing and asset preservation orders
  • Search and seizure orders.

Commercial Litigation

Gemma’s background working in house at an international bank, gives her commercial experience well in advance of her contemporaries. She understands the economic realities of litigation, seeking resolution by negotiation where appropriate and to provide sound and reliable tactical advice.

Her core specialisms include:

Contract/general commercial litigation: Gemma has considerable experience drafting defences and managing a variety of claims including contractual and tortious disputes, commercial contract, joint ventures, partnerships, shareholder and directors’ disputes, agency and franchise disputes.

She has significant expertise advising and drafting in breach of contract and misrepresentation claims and Sale of Goods Act 1974 and the Supply of Services Act 1982.  She has also successfully defended clients in claims for faulty workmanship and defective products.

Consumer rights: Gemma has in depth knowledge and experience of claims under section 75, 77 and 78 of the Consumer Credit Act 1974. She has appeared on behalf of Banks in the High Court on various hearings and at mediations. She has experience advising and drafting on: mistaken payments; dishonoured cheques; debt recovery; mis-selling of Payment Protection Insurance; Data Protection Act applications; hire purchase and return of goods hearings.

Companies, Joint Ventures & Partnerships

Gemma has advised in a wide range of directors and shareholder disputes, which regularly involve complex issues involving insolvency, fraud, trusts and property rights.

Her core specialisms include:

  • Unfair prejudice petitions
  • Directors’ conduct and duties and disqualification proceedings
  • Liability to third parties
  • Claims arising out of joint venture agreements
  • Disputes concerning shareholders’ agreements or relating to the company’s articles of association
  • Issues of shares by directors in breach of authorisation or pre-emption provisions or for an improper purpose;
  • Claims by shareholders against directors.

For example, she appeared in the High Court case of Elliot Harry Green (as Liquidator of Sports Management Group Limited) v Richard Marston, Wayne Lochner, (2016). A three-day trial in the High Court involving alleged breaches of directors’ duties to a company and issues of insolvency.

Employment & Executive Disputes

Gemma has expertise in the ‘crossover’ area of work between employment and commercial law, often involving employee competition, restrictive covenants, whistleblowing or breach of shareholder/director’s duties.

She also acts for both applicants and respondents in cases involving unfair and wrongful dismissal, unlawful deductions from wages, redundancy and all forms of discrimination. She has appeared in the High Court, County Courts, Employment Tribunals and the Employment Appeal Tribunal. She is well practised in drafting compromise agreements.

Her core specialisms include:

  • Injunctive Relief & Employee Competition
  • Employment status
  • TUPE
  • Unfair Dismissal
  • All forms of discrimination; Pregnancy, Disability, Race, Sex, Age, Sexual Orientation and Religious
  • Equal Pay
  • Industrial Action
  • Wrongful Dismissal
  • Restrictive Covenants,
  • Confidential Information and Garden Leave
  • Victimisation

Recent work

  • Gemma represented a large international Bank against a number of claims from customers alleging they have been unfairly denied mortgages under the Equality Act 2010 as a result of age discrimination.
  • Skyba v Antenna Audi Limited t/a Antenna International (2016) ET, Central London, a 7-day employment tribunal case acting for the Respondent and successfully defending claims of unfair dismissal and disability discrimination, including victimisation and harassment.
  • Terry Morgan v Network Europe UK EAT/0159/10SM, instructed by the Claimant to appeal the dismissal of his claim for unfair dismissal and wrongful dismissal in the ET. Successfully overturned the ET decision and established unfair dismissal.

Insurance Coverage

Gemma’s insurance practice frequently involves advice and litigation relating to policy coverage and the construction of policy wording. She has advised on:

  • Actions for negative declaratory relief;
  • Fire and flood claims;
  • Claims arising under permanent health insurance policies where parties or estates have been refused coverage or settlements;
  • Represented insurers in motor policy disputes and employer’s liability cases;
  • Policy disputes arising out of alleged fraud and material non-disclosure;
  • Motor insurance disputes arising in relation to policy coverage and the MIB Agreement.

Costs Litigation

Gemma is regularly instructed in costs disputes in the Senior Courts Costs Office, the High Court and the County Courts. She has considerable experience of detailed assessments of costs, acting for paying and receiving parties. She was recently instructed in the Privy Council in respect of a detailed assessment of costs.

In addition, she has litigated matters such as wasted costs orders; the premature issue of proceedings and the effect of Part 36 offers. She has also advised on the recoverability of ATE premiums and CFA funding arrangements and on issues of proportionality.

Her work also includes:

  • Costs management under the recent CPR 3.12-3.18
  • Costs budgeting and CCMCS
  • Costs capping orders under CPR 3.19.
  • Disputes arising from CFAs and DBAs following the Jackson reforms.
  • All matters arising under pre-April 2013 CFAs.
  • Application and interpretation of principles and rules on costs – e.g. the indemnity principle, scope of Part 36.
  • Detailed assessment hearings – both where points of principle are raised and the more standard assessment hearings.

Gemma has also delivered numerous seminars on the nature and effect of Part 36. Her recent blog article on Part 36 case law appears on Lexis Nexis.

Examples of recent work include:

  • Kagalovsky and Balmore v Wilcox and others [2015] EWHC 1337 (QB). Gemma recently acted as junior in one of the largest wasted costs cases reported.
  • Silver Point Condominium Apartments v Swart and others JCPC 2013/0073, in 2016, Gemma has represented the Appellant in an assessment of costs in the privy council.
  • Representing the Claimant in a dispute about the validity of a Part 36 offer and whether it is capable of acceptance. The case involves detailed analysis of both Part 36 and the common law regime of settlement.

Directory recommendations

Gemma is recommended as a leading junior in the Legal 500 for a number of years.

  • “She is a real fighter and an astute thinker”.
  • “Very good at giving direct, sensible and pragmatic advice”.
  • “She is a very determined advocate and really fights her client’s corner”.

Professional associations

  • The Honourable Society of Inner Temple
  • Personal Injury Bar Association
  • Association of Personal Injury Lawyers
  • Commercial Bar Association
  • Employment Lawyers Association

Qualifications

  • BA (Hons)
  • PgdDip
  • BVC: Very competent
  • Inner Temple Exhibition Award 2007-2008
  • Streuben Benefactor Award 2007- 2008
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