Toby has been involved in many of the most significant product liability cases in the last 15 years - including the Tobacco Litigation, the MMR Vaccine Litigation and the PIP Breast Implants Litigation.  He His experience in this field includes:

 

Group Actions

• The Tobacco Litigation: From 1996 to 1999 he was one of the team of counsel to Imperial Tobacco Limited in its successful defence of claims brought by a group of smokers suffering from lung cancer

• The MMR/MR Vaccine Litigation: From 1999 to 2007 he was junior counsel to Merck & Co Inc, a manufacturer of the MMR vaccine. The claims of 1,000 autistic children were defeated in the largest recent product liability group action

• The ABG Hip Prosthesis Litigation: he acted for Pfizer in a group of claims brought under the Consumer Protection Act 1987 following the early revision of hip prostheses

• The PIP Breast implants Litigation: instructed by the manufacturer of breast implants in group litigation

Pharmaceutical claims

He is regularly involved in personal injury claims arising out of defective medical devices or pharmaceutical products, whether brought under the Consumer Protection Act 1987 or negligence. Recent cases have included:

• Vaccines: he acted for the manufacturer of vaccines in various unitary claims

• Medication for Hypertension: instructed by the manufacturer to resist a claim brought in relation to a generic medicine causing psoriasis

• Medication for Parkinson's Disease (Dopamine agonist): instructed to resist a claim that a dopamine-agonist caused a gambling addiction

• Hip prostheses: instructed in claim arising out of defective prosthesis

• Cosmetic implants: he acted for the manufacturer of cosmetic implants in a claim brought by a Swedish model against both his client and the cosmetic surgeons

• Pacemakers: led by Lawrence West QC, he was instructed on behalf of the claimant in a Consumer Protection Act claim against producers and importers arising out of the death of a patient due to a defective implantable cardioverter defibrillator

• Contact lenses: claims brought against manufacturers for damage caused by contact lenses or cleaning solution

• Other medical devices: a claim brought against the manufacturer of this medical devices such as surgical screws and prosthetic implants; and other defective products

• Defective weaponry: led by Jonathan Harvey, he obtained record damages against MOD for the dependants of an SAS sergeant killed in a “friendly-fire” incident in the Gulf

• Playground equipment: he acted for a defendant who successfully resisted a personal injury claim involving allegedly defective swings at the Duxford Air Field

• Asbestos: he is instructed by insurers facing asbestosis claims

Food and drink

He has been instructed in cases involving contaminated food, including:

• Sudan Red: he has, with Prashant Popat, continued to act for a major supplier and manufacturer in the food sector on the possible liabilities arising from the supply of products contaminated with illegal food dye;

• Tilda Rice: he acted for the Japanese manufacturer of retortable packaging that was said to have caused widespread contamination of packets of microwaveable rice; and

• GM food: he advises on claims over the supply of genetically-modified food, and on the application of the food labelling regulations and directives.

Disaster litigation

He has been instructed in a claims arising out of disasters, including:

• Buncefield Disaster (2005): he advised the insurer of one of the oil companies who operated the Hertfordshire Oil Storage Depot on matters arising from the explosion and fire in December 2005 and the consequent litigation

• Ladbroke Grove Rail Disaster (1999): led by Anthony Scrivener QC, and David Wilby QC, he is acting for a passenger injured in the Ladbroke Grove Rail Crash. He sues the train company for damages contending that the accident turned him into a killer. Having been to the House and Lords on a preliminary point of principle (the nature of the defence of ex turpi causa), the case is being tried in the QBD

Commercial claims

He has been instructed in many commercial “chain-of-contract” and insurance claims involving defective products, such as:

• Petrol Contamination Crisis: he is acting for one of the producers of the contaminated petrol supplied to thousands of supermarket customers in the spring of 2007.   The multi-party commercial dispute that has followed – involving many of the major supermarkets - is both high-value and high-profile.

• Electrical products: he is acting in claims arising out of electrical fires at commercial or residential premises that are blamed on defective products (stereo equipment, light fittings, electrical capacitors, commercial fryers, tumble dryers).

• Commercial machinery: he acts in sale of goods cases arising from the supply of equipment such as industrial plant, grinding machines, potato-harvesters, retortion processes, toilet-blocks. Shipping: claim in relation to a defective luxury yacht.

Product recall

He provides general, but confidential, product liability and product safety advice to manufacturers and suppliers, including advice on when and how to manage a product recall.
 
Product safety and labelling

He advises on the product safety and labelling regulations, and acts for businesses in regulatory prosecutions.
 
Trading standards prosecutions

He acts for businesses and individuals prosecuted for offences under various trading legislation including the Trade Descriptions Act and the Consumer Protection Act.
 

 

What previous editions of the directories have said about his product liability work?

 

'' the popular Toby Riley-Smith. Solicitors are quick to praise him: ''He prepares extremely well, assiduously reads papers and is exactly the kind of barrister a solicitor wants.'' (Product Liability, Chambers UK 2010)

  "Singled out for the amount of work he handles in this area, and for his impressive knowledge of product liability law, Riley-Smith is “a prominent name in the junior ranks” who is also acting for the manufacturer in hip prosthesis litigation” (Product Liability, Chambers UK 2009)

 “Toby Riley-Smith is a strong junior who was praised for his “pleasing manner in court...” (Product Liability, Chambers UK 2008)

 “Toby Riley-Smith was described as a great person to work with; he looks after Instructing Solicitors very well and has a superb court manner” (Product Liability, Chambers UK 2007)

 “industrious intellectual heavyweight” (Product Liability, Chambers UK 2006)

 

Representative Cases

• Guerrero and others v Monterrico Metals plc; Caucha and another v Monterrico Metals plc and another [2010] All ER (D) 181: group actions – practice on amendment and case management
• Re MMR and MR Vaccine Litigation Sayers and others v Smithkline Beecham plc and others - [2007] All ER (D) 67 (Jun): Practice – Civil litigation – Case management – Group litigation – Whether appropriate to end status of litigation as group litigation.
• Re MMR and MR Vaccine Litigation Sayers and others v Smithkline Beecham plc and others - [2007] All ER (D) 30 (Jun):  Court document – Respondent seeking to obtain copy of court document – Whether production of document in interests of justice – Whether production leading to breach of data protection legislation – Whether production leading to breach of human rights 
• Wood and Others v. Ministry of Defence (Unreported, 2006): Record damages against Ministry of Defence for widow and children of SAS Sergeant killed on exercise in Oman
• Re MMR and MR Vaccine Litigation Sayers and others v Smithkline Beecham plc and others - [2006] All ER (D) 442 (Jul): Group action - Case management.
• Re MMR and MR Vaccine Litigation (No 10) Sayers and others v Smithkline Beecham plc and others - [2004] All ER (D) 67 (Apr): Disclosure of documents – Request to court of member state – Inspection of premises in member state – Appropriateness of making request – Council Regulation (EC) 1206/2001.
• Re MMR and MR Vaccine Litigation (No 9) Sayers and others v Smith Kline Beecham plc and others - [2003] All ER (D) 112 (Sep):Group action - Case management conference - Effect on temporary withdrawal of funding on trial timetable.
• Re MMR and MR Vaccine Litigation (No 4) - [2002] All ER (D) 143 (Jun): Group action - Questions to expert – Expert preparing report for purpose of application for summary judgment – Application withdrawn – Party seeking order requiring experts to answer questions regarding report – Whether order to be granted – CPR Pt 35.
• Re MMR and MR Vaccine Litigation (No 3) [2001] All ER (D) 293: Group action – case management - Claimant seeking to amend Particulars of Claim - where the Claimant required to prove possible causation
• Re MMR and MR Vaccine Litigation [2000] All ER (D) 1665: pre-emptive costs-sharing order in group actions - whether judge entitled to impose costs-sharing order between claimants in a non-agreed form
• Hodgson v. Imperial Tobacco Limited [1998] 2 All ER 673 (CA): Status of proceedings in Chambers - costs in conditional fee cases
  

Toby has been described as having "established guru status in consumer credit matters" (Chambers 2010) - and is currently recommended as a leading junior in Consumer Law (Chambers 2011) and Banking and Finance (Legal 500 2010).  He has published widely in the field: he is one of the editors of Goode: Consumer Credit Law and Practice, a co-editor of Butterworths' Commercial and Consumer Law Handbook 2010 and a co-author of the Blackstone's Guide to the Consumer Credit Act 2006. 

 His experience in the field of consumer law includes:

Asset Finance

He is regularly instructed in commercial litigation arising out of goods subject to finance.  Recent instructions include:

• Claims against banks for defective manufacturing machinery under hire purchase agreements

• Claims arising out of hiring of photocopiers

• Claims for the recovery of goods owned by finance house

Disputes over title to cars subject to stocking agreements

 

Consumer Credit - contentious

He has great experience of litigation involving consumer credit agreements – including those involving:

• Non-compliance with ss 60 - 64 of the CCA 1974
• Non-compliance with ss 77 - 78 of the CCA 1974
• Unfair relationships / extortionate credit bargains
• PPI misselling
• Secret commission
• Professional negligence claims arising out of the drafting of non-compliant contractual documentation

Consumer Credit - non-contentious

He advises on all aspects of compliance with the various formal requirements of the consumer credit regime.
He is a consultee of BERR.

Consumer group actions

He has advised on consumer-driven group litigation arising out of the failure of financial products including:

• multi-party litigation brought by shareholders against executives accused of publishing misleading financial information, and mortgage mis-selling claims

• consumer claims arising out of alleged non-compliance with consumer credit legislation

• failed traded endowment policies (TEP) investment schemes

Consumer Protection

He has significant experience of the civil and criminal aspects of the regime introduced by the Consumer Protection Act 1987 and its subordinate legislation: for more details please see "Product Liability" above.

 

Other retail banking

He regularly acts in claims brought by banks, debt buyers and factors to recover debts under a wide variety of financial instruments. His recent clients have included Santander, Lloyds PLC, Capital One Bank PLC, 1st Credit Finance Limited and Mazda Financial Services PLC.

What have previous editions of the directories said about his work in this field?

 ''Toby Riley-Smith's expertise spans consumer credit and consumer protection; He is ''personable, hard-working and clever, and has a very nice manner with lay clients.'' (Chambers UK 2010)

“Toby Riley-Smith is “a formidable player” in consumer credit and lauded by sources for being “excellent and thoroughly knowledgeable”. (Chambers UK 2009)

 "Acting for both lenders and consumers he is involved in litigation but also advises in non-contentious matters.”  (Chambers UK 2008)

“Toby Riley-Smith specialises in consumer credit law and also offers expertise in sale of goods and retention of title cases”  (Legal 500 2006)

 Representative Cases

• Sternlight v Barclays Bank and other cases - [2010] All ER (D) 33 (Dec): [2010] EWHC 1865: Consumer credit test cases –Form and content of agreement – Whether interest rate misstated and agreements 'irredeemably unenforceable'

• Conister Trust Limited v. John Hardman and Another [2008] EWCA Civ 841: Consumer Credit - unenforceable agreements - whether there was a liability sufficient to bind a third party indemnitor
  

Toby represents businesses (from international conglomerates to small family firms, religious institutions and individuals) in the various criminal and civil proceedings that may follow accidents at work.  He appears regularly for interested persons at Inquests in the Coroner's Court; for defendants in criminal proceedings; and for parties to civil litigation.   

Examples of recent instructions include:

• A prosecution following an explosion at a gas terminal and COMAH site in Norfolk (acting for a petro-chemical company in the Norwich Crown Court)

• A prosecution following a non-fatal accident near a construction site on a landmark residential development in the centre of London (acting for the developer in prosecution by HSE) 

• A prosecution following injury to a passer-by hit by cladding (acting for the sub-contractor company in the Magistrates)

• A double fatality in the course of the construction of the Channel Tunnel Rail Link (acting for the German manufacturer of the locomotive in the Inquest and subsequent high court commercial litigation)

• A fatal accident at a school (representing the school at the Inquest into the suicide)

• A fatal accident in the course of construction work at a riding stables (acting for the defendant company before the Canterbury Crown Court)

• A fatal accident, and non-fatal injury, to journalists in the course of reporting on the conflict in Iraq (acting for the employer)

• A double fatality on the railway at Hednesford (acting for a major rail infrastructure company in the Magistrates Court, Stafford Crown Court and Court of Appeal)

• A fatal accident during a diving operation at a freshwater lock on the River Severn (acting for British Waterways before the Coroner, in the Bristol Crown Court and in the civil claim)

• A fatal accident at work (acting for an energy company before the Coroner)

• A fatal domestic accident involving a chain-saw (acting for the manufacturer before the Coroner)

• A fatal accident in an oil platform in the North Sea (acting for a petro-chemical company in the Norwich Crown Court)

• A fatal friendly-fire incident in the Middle East (acting for the deceased’s family at the Inquest, and in the subsequent civil proceedings against MoD)

• A fatal fire at a residential care home in Hertfordshire (acting for the care home before the Coroner)

• A fatal fire at a potato factory in Cambridgeshire (acting for the owner before the Coroner)

• A fatal fall at Ipswich Docks (acting for the port owner at the Ipswich Crown Court)

• A fatal fall at the Thames Tunnel (acting for the principal contractor at the Maidstone Crown Court)

• A fatal fall from scaffolding in Sheffield (acting for the one-man company before the Sheffield Crown Court)

• An accident at a residential care home that led to the prosecution of an Order of Nuns (acting for the Order before the Magistrates)

• A carbon-monoxide poisoning incident following the installation of a conservatory (acting for the company before the Magistrates)

He also has experience of proceedings following non-fatal accidents involving  scaffolding, ladders, cherry-pickers, mechanical diggers, heating systems infected with legionella, unloading operations and cylinders of compressed gas.

What have previous editions of the legal directories said about his health and safety work?

 

''Toby Riley-Smith ''is a charming advocate with great judgement.'' He defends a diverse clientele against prosecutions brought by the HSE and also acts for both sides in civil proceedings.'' (Chambers UK 2010)

“Hard-working, commercial and pragmatic, Toby Riley-Smith is a key figure on both the criminal and civil sides of health and safety. On the civil front he acts for both claimants and defendants, while on the criminal side he has enjoyed a burgeoning prosecution practice in the past few months. Observers highlight his ability to come up with a well-considered view and set out all the options available" (Health & Safety, Chambers UK 2009)

 "...doesn’t jump in with two feet” but instead chooses to “take things in, churn them over and come out with something very considered”. (Health & Safety, Chambers UK 2008)

 “Defending businesses in health and safety prosecutions, he comes across as "utterly pragmatic and not overbearing in the least”” (Health & Safety, Chambers UK 2007) “...just gets better with every case” (Health & Safety, Legal 500 2007)

 “Toby Riley-Smith has marked out as having a “superb courtroom manner” born of a “natural, pragmatic and sympathetic nature”” (Health & Safety, Chambers UK 2006)

 “A leading Solicitor describes junior Toby Riley-Smith as “a dream barrister” who is “lovely on his feet”” (Health & Safety, Legal 500 2005)

 

Representative Cases

• R v Network Rail Infrastructure Limited [2010] EWCA Crim 1225: Sentence – level of fine in health and safety prosecution – whether fine of £666,667 manifestly excessive
• Gray v. Thames Trains [2009] UKHL 33: the leading House of Lords case on the tortious defence of ex turpi causa
• Viasystems (Tyneside) Limited v. Thermal Transfer (Northern) Limited [2005] EWCA Civ 1151 (CA): Whether a labour-only employer and a temporary employer may be vicariously liable for tort of employee - authority for joint vicarious liability
• Hobin v. Douglas [1998] All ER (D) 683(CA): Costs appeal in personal injury claim 
  

 

He is involved in criminal and civil litigation following explosions, flooding, fire and waste. He has experience of international mass tort claims. He has a particular expertise in the civil and criminal aspects of disaster litigation.

Toby is involved in the criminal and civil litigation that often follows explosions, flooding, fire and waste.  He also has particular experience of international tort claims involving UK-based multinationals.

His recent work in this field has included:

Major disasters

Bacton Bas Plant explosion: representing Shell UK Limited in its joint prosecution by the HSE and the Environment Agency following an explosion at a gas terminal on the Norfolk coast

Buncefield Explosion: advising insurers in the immediate aftermath on the implications of the explosion

International tort claims

He represented the defendant mining company in Tabra v Monterrico Metals PLC, claims brought by 33 Peruvian environmental protestors for personal injuries sustained in the course of their protest in Peru against the mining activity of the subsidiary of an English parent-company

Land contamination
Civil claim following contamination of industrial premises by chemicals used in electro-plating processes

Flooding claims

Flood at caravan park: He acted for Teignbridge District Council (led by Lawrence West QC) in successfully defending a high-value flooding claim in the TCC
Flooded farm land: led by Lawrence West QC, he has recently been instructed in a high-value agricultural flooding claim

Fire claims

He has been instructed in a number of claims arising out of fires at commercial premises by the insurers of the affected businesses

Waste management

He appeared for a significant East Anglian waste management company in its high-profile prosecution

Environmental Protection

He successfully sought injunctive relief on behalf of a water company in the Magistrates Court

His recent work in this field has included:

Medical devices: negligence claims against clinicians arising out of the use of medical devices (see Product Liability above).

Obstetrics: advising on a potential claim arising out of negligent post-natal care.

Pharmaceutical products: negligence claims against clinicians arising out of the use of pharmaceutical products (see Product Liability above).

 

His recent work in this field has included:

Brain injury claims: claims for chronic pain and other non-organic presentation.

Disaster claims: personal injury claims arising out of disasters such as the Ladbroke Grove rail crash.

Health & Safety: fatal accident and/or personal injury claims arising out of many of the same incidents that led to inquests and/or criminal proceedings listed above.

International tort claims: he represented the defendant mining company in Tabara v Monterrico Metals PLC, claims brought by 33 Peruvian environmental protestors for personal injuries sustained in the course of their protest in Peru against the mining activity of the subsidiary of an English parent-company.

Product Liability: civil claims arising from the use of defective products as set out under Product Liability above.

War claims: claims following injury or death in conflicts in Iraq and the Middle East, including claims by both military personnel and civilians.

His product liability and health and safety work (see above) has taken him to Coronial Courts around the country.

Toby also has particular experience of:

• Debt recovery and enforcement
• Insurance disputes
• Personal insolvency

• Guerrero and others v Monterrico Metals plc; Caucha and another v Monterrico Metals plc and another [2010] All ER (D) 181: group actions – practice on amendment and case management
• Sternlight v Barclays Bank and other cases - [2010] All ER (D) 33 (Dec): [2010] EWHC 1865: Consumer credit test cases –Form and content of agreement – Whether interest rate misstated and agreements 'irredeemably unenforceable'
• R v Network Rail Infrastructure Limited [2010] EWCA Crim 1225: Sentence – level of fine in health and safety prosecution – whether fine of £666,667 manifestly excessive
• Gray v. Thames Trains [2009] UKHL 33: the leading House of Lords case on the tortious defence of ex turpi causa
• Conister Trust Limited v. John Hardman and Another [2008] EWCA Civ 841: Consumer Credit - unenforceable agreements - whether there was a liability sufficient to bind a third party indemnitor
• Re MMR and MR Vaccine Litigation Sayers and others v Smithkline Beecham plc and others - [2007] All ER (D) 67 (Jun): Practice – Civil litigation – Case management – Group litigation – Whether appropriate to end status of litigation as group litigation.
• Re MMR and MR Vaccine Litigation Sayers and others v Smithkline Beecham plc and others - [2007] All ER (D) 30 (Jun):  Court document – Respondent seeking to obtain copy of court document – Whether production of document in interests of justice – Whether production leading to breach of data protection legislation – Whether production leading to breach of human rights 
• Wood and Others v. Ministry of Defence (Unreported, 2006): Record damages against Ministry of Defence for widow and children of SAS Sergeant killed on exercise in Oman
• Re MMR and MR Vaccine Litigation Sayers and others v Smithkline Beecham plc and others - [2006] All ER (D) 442 (Jul): Group action - Case management.
• Viasystems (Tyneside) Limited v. Thermal Transfer (Northern) Limited [2005] EWCA Civ 1151 (CA): Whether a labour-only employer and a temporary employer may be vicariously liable for tort of employee - authority for joint vicarious liability
• Re MMR and MR Vaccine Litigation (No 10) Sayers and others v Smithkline Beecham plc and others - [2004] All ER (D) 67 (Apr): Disclosure of documents – Request to court of member state – Inspection of premises in member state – Appropriateness of making request – Council Regulation (EC) 1206/2001.
• Re MMR and MR Vaccine Litigation (No 9) Sayers and others v Smith Kline Beecham plc and others - [2003] All ER (D) 112 (Sep):Group action - Case management conference - Effect on temporary withdrawal of funding on trial timetable.
• Re MMR and MR Vaccine Litigation (No 4) - [2002] All ER (D) 143 (Jun): Group action - Questions to expert – Expert preparing report for purpose of application for summary judgment – Application withdrawn – Party seeking order requiring experts to answer questions regarding report – Whether order to be granted – CPR Pt 35.
• Akunyili v. Camden LBC [2002] All ER (D) 163: Whether an appellant had good reason for failing to attend appeal - appeal dismissed in absence
• Khan v. Abbey Life Assurance Company Limited [2001] All ER (D) 389: Insurance - allegations of fraud - whether claim exaggerated - whether material to cover proceedings in Chambers - costs in conditional fee cases
• Re MMR and MR Vaccine Litigation (No 3) [2001] All ER (D) 293: Group action – case management - Claimant seeking to amend Particulars of Claim - where the Claimant required to prove possible causation
• Re MMR and MR Vaccine Litigation [2000] All ER (D) 1665: pre-emptive costs-sharing order in group actions - whether judge entitled to impose costs-sharing order between claimants in a non-agreed form
• Hobin v. Douglas [1998] All ER (D) 683(CA): Costs appeal in personal injury claim
• Hodgson v. Imperial Tobacco Limited [1998] 2 All ER 673 (CA).