David Berkley QC

Year of Call: 1979
Year of Silk: 1999
Email Address: david.berkley@3pb.co.uk
Telephone: 020 7583 8055

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Overview

A highly effective and client-friendly trial advocate, David Berkley QC has been advising and representing clients in business disputes for more than 30 years and enjoys a substantial practice in London and the North of England.

David's legal expertise includes:

  • Business and Commercial
  • Property
  • Employment
  • Professional Negligence
  • Regulatory and Professional Ethics

David is willing to act as arbitrator in commercial disputes.

Expertise

  • Commercial
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    David handles a broad range of commercial and chancery litigation with an emphasis on major trial work and appeals. Famous clients have included Gary Barlow of ‘Take That’; Granada Television; Stone Roses Management and several Manchester bands.

    David has considerable expertise and experience in contentious security and receivership issues; civil and criminal fraud trials; directors’ disqualification work. Acts regularly on behalf of major corporations and interest groups including the Co-operative Employers’ Association and the Commission for Racial Equality at EAT and Court of Appeal level with particular experience in TUPE; restrictive covenants; confidentiality and trade secrets. Frequently advises in and acts on behalf of professional clients in partnership disputes including those relating to solicitors’ and accountants’ professional practice. Considerable expertise and experience in commercial landlord and tenant matters and frequently advises property clients in relation to renewals and reviews.

    Recent cases:

    Jervis v Harris [1996] Ch 195 – classic case on the construction and enforcement of a tenant’s repairing covenant in a 999-year lease and the landlord’s right to re-enter and repair and thereafter claim the costs as a debt as opposed to damages

    Burke v Royal Liverpool University Hospital NHS Trust [1997] ICR 730 – important case on deduction from wages and collective agreement following competitive tendering

    Barrett McKenzie & Co v Escada (UK) Ltd QBD 1st February 2001 – this is a landmark decision concerning the method of calculating compensation under Regulation 17 of the Commercial Agents (Council Directive) Regulations 1993. Until this case there was considerable uncertainty under English law as to the method of applying the ‘compensation’ basis derived from French law

    Rakusens Ltd v Baser Ambalaj Pastik Sanayi Ticaretas [2001] EWCA Civ.1820 (Court of Appeal) – this case concerns issues of jurisdiction and service and, in particular, the application of Section 691 of the Companies Act 1985. David appeared on behalf of the defendant and successfully appealed the decision of the mercantile judge in Leeds, thereby setting aside a judgment on the basis that the defendant, a Turkish company, had not been validly served. The claimant had sought to argue that the defendant’s local agent was a sufficient place of business to satisfy Section 695 of the Companies Act 1985. The Court of Appeal’s judgment was an important one in relation to foreign companies and is fully reported at [2002] 1 BCLC 104; Clark v Dyer and Burnett v Harper, Court of Appeal 4th May 2001 – this represented the test cases concerning enforceability of the Hamco Group’s credit hire agreements. David Berkley QC acted for the claimants in the Court of Appeal and was successful in overturning the first instance decisions that had declared the hire agreements to be shams. The case had far-reaching consequences in the credit hire industry

    Kumar v United Bank Ltd (QBD Commercial Court, Andrew Smith J), 22nd June 2001 – this case established that there was no duty of care owed by the defendant bank to the claimants when signing bills of exchange for acceptance, to ensure that the formal acceptance was such as to avoid the possibility the claim was attaching personal liability under Section 349(1) of the Companies Act 1985

    J Barry v J Barry (Plant Hire) Ltd [2001] EWCA (Civ.614) – in this case, David successfully argued that the judge at first instance had been wrong to grant summary judgement in circumstances where there was contradictory evidence and an explanation was required, together with a determination of whether any sums were due and owing

    Mark Blunden v Frogmore Investments Ltd [2002] EWCA (Civ.573) Court of Appeal – this case concerned the determination of a commercial lease following substantial damage caused by the IRA bomb in city centre Manchester. The case turns upon the validity of the landlord’s notice of termination. The decision in the Court of Appeal is an important one for its analysis of the law relating to personal service as well as the efficacy of fixing notices to premises in circumstances where the landlord knows that the tenant cannot gain access. The case is fully reported at [2002] 29 Estates Gazette 153

    Coutts & Co. v Clarke [2002] EWCA (Civ.943), Court of Appeal – this case concerns the validity of a charging order absolute obtained by a bank in circumstances where, by reason of an interim order which had, unbeknown to the bank been obtained by the debtor, Section 252(2)(b) of the Insolvency Act 1986 applied. The case is reported at [2002] 26 EG 140(CS)

    Hayes v Phonogram Ltd and Others [2002] EWHC 2062 (Ch.) (Blackburne J) – this case concerned the musical copyright in a popular song ‘The Key The Secret’ which was a major hit in 1993 and now firmly established as a dance anthem. The case concerned allegations of joint authorship and agreed divisions of royalties

    R v Independent Television Commission ex parte Boyd-Hunt [2002] EWHC 2296 Admin (Newman J) – Judicial Review of the decision of the ITC that Granada Television had not breached the impartiality code in its treatment of the Neil Hamilton ‘Cash for Questions’

    Keiller v Lothian Borders & Angus Co-operative Society Limited EAT Scotland, Lord Johnson [2002] All ER (D) 167 – whether the share option schemes available to Tesco employees was a right which passed upon a TUPE transfer

    Russell v Finn [2003] EWCA Civ. 399 Court of Appeal. An important analysis of the function of the trial judge in the context of implied easements of way

    Goldmile Properties Limited v Speiro Lechouritis [2003] EWCA Civ 49 – this case determines that a landlord carrying out repairs under a repairing covenant had to take all reasonable steps to avoid breaching the covenant for quiet enjoyment and not all possible steps. David Berkley QC led Jonathan Rule

    In re China Jazz Worldwide Plc v Secretary of State [2003] EWHC 2665, Patten J – approach to applications for leave to continue as a director following disqualification under the Company Director Disqualification Act 1986

    Booth v Oldham MBC 21.05.2004 EAT, Silber J [2004] All ER (D) 366 – meaning of ‘disabled person’ for the purposes of the Disability Discrimination Act 1995 in cases of mental impairment

    Iqbal and ots v Legal Services Commission [2005] EWCA 623 – a continuing failure to pay fees under the Legal Aid Act 1988 s.6 could comprise a continuing breach of statutory duty and misfeasance

    Moore and ots v Care Standards Tribunal [2005] EWCA 627 – whether an establishment was a care home for the purposes of the Care Standards Act 2000. Reported at [2005] 3 All ER 428.

Recommendations

'David Berkley QC has more than 20 years' experience in chancery work. He is known for commercial property disputes, employment, professional negligence and regulatory law.
Strengths: "A very nice chap; he is a very eloquent speaker with good advocacy skills."'

Chambers UK 2017/Chancery - Northern (Bar) - Band 2

'David Berkley QC Has a strong commercial and chancery practice. He is experienced in company and commercial work as well as banking and insolvency matters. He also handles landlord and tenant and partnerships disputes and is an accredited mediator.'

Chambers UK 2016/Chancery - Northern (Bar) - Band 2

‘Highly experienced in banking and commercial litigation.’

Legal 500 2016/Regional Bar - Northern Circuit, Commercial, banking, insolvency and chancery law – Leading Silks.

Academic qualifications

  • Manchester University

Professional qualifications & appointments

  • 2000 - Appointed Deputy District Judge
  • 2001 - Appointed Recorder (Civil)
  • 2007 - Appointed Honorary Teaching Fellow, Manchester Metropolitan University
  • Frequent lecturer having conducted seminars in-house at Herbert Smith, Freshfields and other leading City firms.
  • Nottingham Law School
  • National Institute for Trial Advocacy
  • Qualified mediator (College of Law credited)
  • Member of the Commercial Law Panel of ADR Chambers.

Professional bodies

  • Northern Circuit Commercial Bar Association (Chairman)
  • Northern Chancery Bar Association
  • Professional Negligence Bar Association

Direct Access

David Berkley QC is qualified to accept instructions directly from members of the public and professional clients under the Direct Public Access scheme.

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