David Cunnington

David practises in all areas of law related to employment and discrimination practice, with a particular specialisation on matters concerning injunctive relief and employee competition, including restrictive covenants; partnership disputes; TUPE; directors’ duties and confidential information/breach of confidence actions.

He is regularly instructed to advise in complex TUPE actions involving industrial agreements, group redundancy issues and team moves. He appears regularly in the High Court, the EAT and the Employment Tribunals.

David is regularly instructed in employment matters related to the sports industry.  He has appeared in numerous high-profile football club/manager disputes, acting both on his own and being led by Paul Gilroy QC.

He has considerable experience advising and representing clients in applications for judicial review in matters relating to industrial disputes and decisions of bodies with authority to organise the employment market and commission public contracts in the workplace.

David has appeared in hundreds of cases involving disputes about unfair and wrongful dismissal. He regularly appears in cases which include matters ranging from working time and wages disputes, discrimination of all kinds and whistleblowing allegations.

Notable Cases:

• Rose v. Leeds Dental [2013] All ER (D) 70
• Somerville v. Buttle Ltd [2013] UKEAT/1050/11
• Boafo v. Camden NHS Trust [2013] All ER (D) 206
• Rees v. Neale Solicitors [2011] UKEAT/1555/10/DM
• Hussain v. Vision Security  [2011] Eq LR (EAT)
• Cuerden v. Yorkshire Housing [2010] All ER (D) 50

Defective products

David is regularly instructed in a range of product liability cases. Cases are often of high value and have a cross-border element requiring work in other jurisdictions. His current and recent cases include pharmaceutical products, prosthetic implants, food products, motor vehicles (ranging from industrial tankers to ATVs) and other domestic electrical products. David frequently advises on product recall issues, primary issues of liability and insurance coverage, third party indemnity claim and issues relating to consequential loss involving profit reduction and business interruption. He has acted both as a junior to leading counsel and on his own.  He has appeared in several high-profile group litigation actions and advises on group litigation orders.

He regularly advises on all aspects of the Consumer Protection Ac 1987, the Sale of Goods Act 1979 and related regulatory provisions.

Property damage

David has extensive experience advising in relation to claims for property damage, often in relation to defective products but also in cases involving chemical contamination of land, pollution, subsidence, tree roots, fire and flood.  He frequently advises on complex causation matters and insurance coverage issues.  He regularly acts in disputes between insurers in relation to matters of indemnity and policy coverage.

David’s experience in regulatory and environmental law allows him to provide clients with advice across the whole spectrum of legal consequences (in terms of civil liability, regulatory enforcement and insurance implications) in cases involving property and environmental damage.

David has extensive experience in a wide range of regulatory and environmental proceedings ranging from planning inquiries and permitting disputes to criminal enforcement in regulatory actions.

Planning and Environment

In recent times he appeared at the planning inquiry in to the construction of the Barton Renewable Energy Plant; advised in relation to the granting of permits by the Environment Agency for a number of waste disposal incinerators in northern England and south Wales; advised on planning and regulatory issues in relation to the redevelopment of areas of Slough town centre and acted in judicial review proceedings in relation to major housing developments in South Gloucestershire, Hertfordshire and Kent.  He has also acted in JR proceedings in matters related to the Town and Country Planning (Fees for Applications Deemed Applications, Requests and Site Visits) (England) Regulations 2012.

He has considerable experience advising on disputes relating to the Environmental Permitting Regulations, legislation on Environmental Impact Assessments, the Habitat Regulations, and matters concerning the EU Waste Framework Directive and domestic law.  He has advised and represented clients in disputes concerning developments in conservation areas and the workings of schemes of management under section 19 of the Leasehold Reform Act 1967

David has particular experience representing landowners in nuisance actions related to agricultural land. He has acted as a junior in multi-party actions involving discharge from power stations and in cases involving the disposal of industrial and domestic waste.  He has appeared in several High Court nuisance actions, seeking injunctive relief, relating to noise, odour, vermin and pesticide pollution.  He has appeared in numerous proceedings concerning toxic torts and the contamination of land and water courses.

Regulatory

He frequently appears in the Crown and Magistrates’ Courts in proceedings relating to the Health and Safety at Work Act 1974 and the Environmental Protections Act 1990.  He frequently attends inquests; advises parties subject to HSE or local authority investigations and any subsequent prosecutions. He is regularly instructed in matters relating to the imposition and appeal of prohibition and enforcement notices.  He has particular experience in defending criminal proceedings brought under the Corporate Manslaughter and Corporate Homicide Act 1997.

David has acted in a large number of professional liability actions involving solicitors’ negligence. By way of example, he has represented clients in high-value actions concerning solicitors’ failures to advise clients as to the terms of contracts into which they were entering or the correct response to breach of contract.

He is currently instructed in a claim against a firm of solicitors for failing to advise a company as to the implications of a deed of variation to a commercial contract which, in effect, cost the company over £500,000 and caused it to be taken into administration.

David has also regularly been instructed in actions concerning solicitors’ failure to put into effect their client’s instructions or to advise them appropriately during inter partes negotiations. In particular, he frequently acts in claims against solicitors for failure to advise clients as to the full significance of settlement agreements into which they have entered with (former) employers or in the consequences of settlement of legal actions.

David has also acted in numerous claims arising out of failures to issue or comply with court orders/deadlines. A high proportion of his cases involve the negligence of solicitors with employment practices.

David acts in a broad range multi-track personal injury work in the High Court and County Courts.  This work includes catastrophic injury claims; serious brain injury work; industrial disease actions and fatal accident cases.

A lot of David’s work involves advising in relation to indemnity claims and insurance coverage disputes arising out of personal injury actions.  He has particular experience at advising on insurance disputes related to personal injury claims arising from defective products and defective premises.

He is regularly instructed to advise on value in high-value claims and to negotiate settlements at JSMs and mediations.

The following are examples of his work in the past 12 months:

• Junior in two £5 million plus serious brain injury cases arising out of RTAs;
• Instructed alone in several £1 million plus brain and spinal injury claims from accidents at work;
• Acted in several fatal accident actions following deaths at work on agricultural land and construction sites;
• Advised and acted in fatal mesothelioma disputes and satellite litigation in relation to pleural plaques claims;
•  Acted in disputes between insurers concerning indemnity provisions in relation to liabilities for acts of agency workers designated to work for overseas employers.

David specialises in all aspects of costs litigation in particular with reference to changes in the CPR which affect personal injury claims. He has acted in several Court of Appeal cases concerning costs disputes.

David is an experienced employment law barrister. He is regularly instructed to advise on internal disciplinary and investigatory matters for a wide range of city based institutions (brokerages, insurance companies and banks) as well as universities and schools. He is responsible for drafting the performance, disciplinary, grievance, parental leave, sickness and attendance policies for a number of well-known multinational corporations. He regularly advises HR departments on how to conduct disciplinary and grievance investigations; address issues concerning pay, bonuses and benefits; enforce restrictive covenants; and deal with issues concerning confidentiality and use of protected information. He is licensed to accept public access instruction.

• Neal Stathers v. Mitchells & Butler PLC

• Leeds Dental Team Ltd v. Rose

  The subjective intention of an employer in a constructive dismissal case was not determinative of whether it had breached the implied term of trust and confidence. The principle set out…

• M Hussain v. (1) Vision Security Ltd (2) Mitie Security Group Ltd

  The process of drawing an inference of discrimination, and of deciding whether the first stage of the test in Wong v Igen Ltd (formerly Leeds Careers Guidance) [2005] EWCA Civ…

• Hendy v. Iberian Lineas De Espana SA

  A defendant airline was in breach of its obligation to provide meals and refreshments under Regulation 261/2004 art.9(1)(a) where a claimant’s flight was cancelled due to flying restrictions. However, the…

• Yorkshire Housing Ltd v. Cuerden

  An employment tribunal had erred in grossing-up compensation awarded for injury to feelings and personal injury in a case of disability discrimination, as the awards related to pre-termination discrimination and…

  SEE ALL CASES