Duncan McNair

Year of Call: 2003
Email Address: duncan.mcnair@3pb.co.uk
Telephone: 0117 928 1520

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Clinical Negligence

Duncan has a burgeoning clinical negligence practice involving issues of limitation and knowledge, consent and negligently performed surgery, including in particular cosmetic surgery. His advisory work is very highly regarded and he is one of the few practitioners in this field to have direct experience of clinical negligence litigation all the way through to judgment.

Recent cases:

  • C v an NHS trust [2014]. Duncan acted for a claimant who experienced severe complications (including a lifelong colostomy) when a laparoscopic abdominal procedure went wrong. The defendant raised vigorous disputes on breach of duty and causation, but settled for 85% of full valuation a matter of days before trial in the High Court.
  • E v Dr A [2012]: Duncan acted for the claimant in a six-day trial on the issue of the true extent of informed consent in elective surgery. His opponent was a notable silk with extensive experience of clinical negligence. Duncan succeeded and the defendant failed in his application for leave to appeal.

Before joining the Bar Duncan had a successful career as a recruitment consultant, which provides him with useful and practical experience in the commercial aspects of litigation and expectation management.

Costs
Duncan has extensive experience in civil costs, both pre and post Jackson reforms. He has conducted numerous detailed assessments in the SCCO, the county courts, and since Jackson has also conducted numerous costs and case management conferences. He advises and represents clients on high valued bills and Form Hs, both on CFA cases and on private client cases.
Duncan has a broad litigation practice, which enables him to apply his experience of running a case to technical costs points.

Recent cases:

  • Advising a road traffic insurer on whether Article 75 of the MIB agreement allowed it to avoid paying costs for which a claimant was insured
  • Advising and representing an after-the-event insurer joined to proceedings for the purpose of a non-party costs order with regard to conduct in negotiations
  • Advising an insurer on the merits and procedure in a case where the litigant obtained a costs order against a bankrupt but insured individual where the bankrupt’s insured repudiated indemnity
  • Broadhurst v Tan: instructed by defendant in circuit judge appeal on an important point of principle under the new fast-track fixed costs regime. Should the court oust the fixed costs regime when the claimant gets an award of indemnity costs? Or does an award of indemnity costs make no difference, as the costs are fixed? Resolved in favour of defendant
  • Kandasamy v Sohel: circuit judge appeal on pre-action protocol in low-value personal injury claims. Where a claimant is entitled to withdraw from the protocol because the defendant declined to make an interim payment, but the claimant serves notice out of time, is the notice still valid.

Recommendations

Experienced junior acting for claimants and defendants in a wide range of personal injury claims. He is particularly experienced in the handling of employers' liability cases involving accidents at work.
"His advocacy and cross-examination skills are very good, as is his paperwork." "He's very personable, turns paperwork around quickly and puts clients at ease."

Chambers UK 2019/Personal Injury - Western (Bar) - Band 3

‘A first-class cross examiner.’

Legal 500 2018/19/Personal injury and clinical negligence – Leading juniors

‘He has skills beyond his years of call.’

Legal 500 2017/Personal injury and clinical negligence – Leading juniors

'He provides excellent paperwork, advice and exceptional advocacy skills'

Legal 500 2016/Personal injury and clinical negligence – Leading juniors

'Always efficient and helpful'

Legal 500 2015/Personal injury and clinical negligence – Leading juniors

'Unflinching in the face of difficult issues.'
'A talented advocate'

Legal 500 2014/Personal Injury and Clinical Negligence.

Client Testimonials 
A Court of Appeal judge commented to Duncan McNair in a recent application for permission to appeal in a personal injury case: “(The client) has been lucky to have you as his advocate".

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