To contact or appoint Kevin Smyth, call CEDR on +44 (0)207 536 6060 or email email@example.com
"...sensible, thoughtful and finally managed to broker an agreement when initially the parties were poles apart… He is uniquely qualified to be a mediator. He is dedicated, organised, experienced and proficient.” - Client Feedback
Kevin Smyth is a Director and former Head of Litigation at Burt Brill & Cardens Ltd, Solicitors. Since 1st May 2016 he has been a full time practising mediator with over 18 years’ experience. He has conducted nearly 100 mediations in matters relating to wide variety of disputes and industries over 80% of which resulted in a settlement being reached on or soon after the mediation day. Kevin was first appointed to the Panel of Mediators for the Court of Appeal Mediation Scheme in October 2003 and he continues to be a member of it.
As a legal representative in mediations, Kevin has been involved in cases concerning, franchising, life insurance, race discrimination, professional negligence, employment and many different types of commercial disputes.
Kevin was admitted as a Solicitor in 1973 and until April 2016 practised solely as a civil litigation lawyer. For much of that time he did so in the clinical negligence and personal injury arenas. In the case of the former, he successfully prosecuted three claims that resulted in awards of damages in excess of £3 million. Kevin is also a highly experienced practitioner of independent chairing in the public and private sectors. He has chaired numerous appeal hearings too of the Legal Aid Agency’s national Special Review Controls Panel as well as its Funding Review Committees. He has also chaired meetings related to employment and workplace issues and was the Chairman of the Board of Governors of a well-known large independent secondary school for six years.
(Non-Neutral work in italics)
Construction & Engineering
- Breach of contract claim by customer against builder regarding alterations carried out to a swimming pool - claim £10,715.00, counter-claim £22,562.00
- Breach of contract claim in respect of defective building works causing significant consequential loss for a hotel chain – claim £750,000.
- Breach of contract claim the subject matter being alleged poor workmanship and defective materials – quantum £0.75 million.
- Dispute regarding retention monies and their release following the issuing of the Architect’s Works Completion Certificate – quantum £125,000.
Kevin has gained considerable experience in the issues that arise in claims related to the costs incurred during litigation which he now uses to assist in the mediation of disputes over costs or where costs are a significant factor.
- Disputed Solicitor’s costs claim totalling £150K when inter alia it was alleged that they had been dishonesty on the part of a senior partner.
As a former Independent Adjudicator and Panel Member of both the then Legal Services Commission's Funding Review Committee and Special Controls Review Panel, Kevin acquired a significant body of knowledge regarding disputed Solicitors’ and Counsels’ costs claims.
- Adjudicating solicitors' claims for costs against the Legal Aid Fund.
- Three of his own clinical negligence claims involving costs of £200,000 in each case.
- Several contested probate actions where the costs exceeded £150,000.
- Over a dozen or so personal injury cases where costs in excess of £50,000 had to be assessed by the Court.
- Negotiating costs settlements in over 100 cases related to a whole variety of different claims.
- An employment law dispute between a university and its soon to be ex- Director of HR.
- A potential wrongful and constructive dismissal claim brought by the Finance director of another university.
- Kevin has a very considerable experience of the educational world, partly through his firm having acted for several independent schools and a local university. He has also gained much “hands-on” experience within the school environment as a consequence of having been a School Governor for upwards of twenty five years and in the case of one leading school of 600 children, having been its Chairman of Governors for six years. The educational establishments in question all operated in the private sector and are co-ed.
Employment & Workplace
- Compensation claim by an NHS Consultant arising as a consequence of there being in existence a potential constructive dismissal claim or one for wrongful dismissal.
- Mediated both wrongful and unfair dismissal claims.
- Likewise “in the workplace” as between senior managers, other employees and as between employer and employee.
- As a lawyer, Kevin represented clients at mediations in respect of many different types of dispute: some were wrongful and unfair dismissals and both sexual and disability discrimination cases. Some of the employee clients concerned worked at a very senior level – CEO’s, senior medical consultants working for health trusts, etc. He has also represented employers at mediations.
- Permanent Health Insurance - ill-health of insured - early retirement - issue as to whether or not insured had become permanently and totally disabled within the meaning of the policy document - asserted by insurer that insured was able to carry out gainful occupation and would remain so in the future.
- Life insurers seeking to avoid a policy of life assurance upon the joint lives of the Claimant and her deceased former common law husband who died as a consequence of suicide – claim £1 million.
- Copyright - design rights - access to client databases and other commercially sensitive information.
- Following conclusion of FPR Pre-application Protocol process but before FDA, successfully concluding a one day “family mediation” (using the ‘commercial’ as opposed to family mediation model) involving net assets of £2.9m.
- For most of his professional career practising as a lawyer, Kevin had the conduct of many claims brought by divorcing husbands and wives seeking post-divorce financial provision. Many of these were ‘high net worth cases’ involving large pension funds and occasionally complex trust as well as private shareholding issues.
NHS & Healthcare / Clinical Negligence
- Recovery of residential care costs - allegations of negligence/unlawful medical and financial assessments - counterclaim for care costs paid previously.
- Late diagnosis - negligence - death - Fatal Accidents Act dependency claim by young widow and children - causation - uninsured treating doctor - partnership liability.
- Alleged psychiatric illness - incorrect diagnosis - mis-management of symptoms - subsequent suicide - dependency claim by widow - causation - quantum - Claimant’s desire that there be an explanation coupled with an apology.
- Father murdered by son while latter on temporary release from a psychiatric unit – alleged by Claimant family that decision to release and failure to administer as well as monitor adequately medication was negligent – principal issues were liability, causation, quantum and crucially the provision of an explanation to the Claimant family by the Defendant NHS Trust coupled with an apology.
- Law Reform (Miscellaneous Provisions) Act post-death claim for bereavement, general damages and the cost of care – quantum £134,000.
- As a lawyer, Kevin has successfully prosecuted many clinical negligence claims including three different ones for children who tragically suffered injuries at birth resulting in cerebral palsy.
Partnership & Shareholder
Over the years, Kevin has provided professional advice as a solicitor in this sector.
- Court of Appeal Mediation – Law Reform (Miscellaneous Provisions) Act bereavement/Fatal Accidents Act dependency claims by widow of soldier killed in live fire training exercise – quantum only – permission given by Court of Appeal for Defendant to appeal first instance decision relating to the tax treatment of future loss of earnings claim – quantum £1,117,000.
- Tortfeasor minors - alleged negligence by them, their parents, tour operator and foreign hotel causing catastrophic injuries to Claimant rendering him tetraplegic - general and special damages combined pleaded to be £3m - Regulation 15 Package Travel, Holidays and Tour Regulations 1992 - contributions between Defendants.
- Claimant minor and his mother - minor en ventre sa mère at time injuries sustained - claims by both him and his mother arising out of an RTA - principle issues in dispute causation and costs of care, accommodation and other future consequential losses - general and special damages combined pleaded to be £3.1m.
- Court of Appeal mediation - allegation by Claimant of breach of statutory duty and common law negligence in the workplace on part of Defendant - cross-allegations of contributory negligence - Claimant lost in first instance but given permission to appeal by C of A - quantum £147,380.00 plus costs of £77,650.00.
- Court of Appeal Mediation – personal injury claim for damages estimated between £500,000 to £1,000,000 – at the first instance the Claimant failed at trial – the Judge’s findings of fact then appealed – permission given to Claimant to appeal – Mediation conducted successfully very shortly before Appeal Hearing.
- Solicitors’ professional negligence - solicitor trustees’ breach of trust - allegations of fraud.
- Solicitors’ negligence - alleged negligent advice giving rise to a claim of £164,300.00.
- Solicitors’ negligence regarding the conduct of a personal injury claim - issues as to liability, causation and quantum which was pleaded at circa £300,000.00.
- Solicitors’ negligence - allegations of poor advice in conduct of a wrongful dismissal claim in which damages of £102,330.00 were sought.
- During Kevin’s 45 years of practice as a solicitor, he has prosecuted claims against not only solicitors but also accountants, surveyors and architects. Some have been successfully mediated.
- Cohabitation / Realty Disputes
- Co-habitation dispute related to Section 14, Trusts of Land and Appointment of Trustees Act 1996. Division of equity on sale of co-owned property.
- Family dispute over beneficial property rights and sundry debt claims made by one party against the other complicated by significant jurisdictional Court enforcement issues coupled with serious allegations of fraud.
- Kevin has acted for client’s in many similar disputes.
- Landlord and Tenant
- Enforceability of covenants - parties re-negotiating terms of lease following difficulty in interpreting the same.
- Disputed rent arrears and allegations by tenant of landlord’s failure to keep premises in repair - side action against managing agents - total value of claims £265,000.00.
- County Court mediation involving 1 Claimant and 11 Defendants - breach of covenant claims, counter-claim alleging harassment. Total claim of £10,000.00, and counter-claim of £50,000.00.
- Tenant’s alleged failure to comply fully with lease ‘break clause’ provisions giving rise to a contested claim by Landlord for future rent and damages amounting to £750,000.
- Disputed maintenance charges and the enforcement of rights of action in regarding them – quantum £500,000.
- Disputed right to extend the long lease of a residential property worth £2.5 million.
- Reduction in care costs for Claimant suffering from what were the advanced stages of Alzheimer’s - Judicial Review - issues pertaining to liability and how best to construct as well as fund an appropriate care package/regime in the Claimant’s home as opposed to a care home which she and her family were fundamentally opposed to the notion of her having to move into one.
- Claim by disabled person for additional care costs and the payment of arrears.
- Three party (including relatives) disputed monetary claim for the recovery of care homes fees which a Local Authority had assessed as being due from a person who no longer had mental capacity and was thus represented by the Official Solicitor.
- An Attempt to compromise Judicial Review proceedings, the subject matter of which was a County Council’s decision to reduce by 57.78% funding from it to the claimant for the cost of a specialist dementia carer in her home.
Sale of Goods & Services
- Hotel & Leisure
- Holiday makers not afforded ATOL protection consequent upon it being asserted that the C recover cost of their holiday consequent upon failure of travel company prior to their holiday.
- Failure of travel operator causing holidaymakers financial loss in respect of their pre-holiday bookings.
Trusts, Wills & Probate
- Kevin has regularly prosecuted and defended claims that have been made by clients of his when Wills have been contested or, alternatively, when applications were made for further financial provision pursuant to the Inheritance (Provision for Family and Dependants) Act 1975.
- Contested Probate
- Assertion by close relative of deceased that £100,000.00 paid to him was a gift and not a loan.
- Will disputed consequent upon allegations of lack of testamentary capacity – Estate value £3.5 million.
- Application by one sibling for further financial provision from her late mother’s Estate (value £2 million +) which was contested by another sibling.
Kevin’s approaches every mediation believing that a settlement is achievable. From the outset he uses a combination of awareness, empathy, sensitivity and pragmatism to help the parties reach an agreement. He feels it is important for the mediator to instil energy into the mediation process and, if needs be, to manage it with firmness.
An ability to reality test in a focused and constructive way is also an important element of Kevin’s style and general approach to the mediation process. So as to achieve this, he ensures that he has a full understanding of both the facts and issues before each mediation takes place. Moreover, he always strives to make sure that the parties and their advisor representatives come to the mediation well prepared and to that end, invariably Kevin drafts for agreement by the parties a pre-mediation timetable for all necessary tasks to be undertaken in good time before the mediation day.
- “I was really impressed with him. He was nice and helpful and as an impartial observer, the reality touch he gave was very useful. His style was fair, realistic and sensible. He was chosen based on his experience and as a solicitor.”
- “Kevin was excellent, as usual. He is sympathetic to the client and understands that settling the dispute will result in a release of stress and pressure. He facilitated a settlement and closure for everyone. We thought he was very good.”
- “Kevin was ‘brilliant’. He made me feel so comfortable and I hadn’t expected to. I felt very comfortable going into the mediation. He had spent a lot of time the week before working with me and talking about the issues … he brought gravitas and stopped the whole process from breaking down.”
- “Very much at ease and very informative.”
- “Very personable and engaged, well prepared and helpful.”
- “He did really well in a really difficult case”.
- “Kevin was very good. He was very clear and thorough throughout the day, facilitative and sympathetic.”
- ”He is uniquely qualified to be a mediator. He was dedicated, organized, experienced and proficient.”
- “… he was sensible, thoughtful and finally managed to broker an agreement when initially the parties were poles apart. He did a very professional job under difficult circumstances.”
- “I thought Kevin adopted a very good approach and style. I would be happy to use him again.”
- “The mediator was very personable and took sufficient time to listen to relevant parties’ comments/concerns.”
- “Thank you Kevin for your patience and incredible endurance in leading this matter to a positive outcome for all parties.”
- “Thank you very much indeed for your hard work yesterday in assisting us in achieving settlement. The matter had become far more legally and procedurally complex than it perhaps needed to be and it was very helpful indeed that you had mastered the issues in such a short space of time.”
- Admitted Solicitor of the Supreme Court - July 1973.
- Partner of Burt Brill & Edwards 1975-1986.
- A founding Partner of Burt Brill & Cardens 1986 to date and Head of Litigation since 1986 to 2016.
- A founding Director of Burt Brill & Edwards Limited in 2015.
- Special areas of practice during his career as a litigation solicitor: Commercial disputes, clinical negligence, personal injury, professional negligence, contested wills/probate cases, employment and family (financial provision).
- Member of the Court of Appeal’s Mediation Panel as from October 2003.
- Former Chairman of Legal Services Commission’s Funding Review Committee for the South-Eastern No 2 Area 1999/2000 and Joint Chairman of the Southern No 3 Area 2001;
- Formerly an Independent Adjudicator appointed by Legal Services Commission to determine Appeal and Review Applications (both Special Cases Unit high cost cases and non-SCU cases).
- February 2013 appointed to be a Member of the Legal Aid Agency’s Special Controls Review Panel and to be an Independent Adjudicator (effective 01.04.2013, retired March 2016).
Membership of Professional Organizations
- The Law Society
- The Civil Mediation Council
- Resolution (formerly Solicitors Family Law Association)
- Sussex Law Society (President 2015/2016)
Membership of Law Society Panels
- Civil / Commercial Mediation Panel (Practitioner Member since August 2002)
- Personal Injury Panel (May 1994 until April 2011)
- Family Law Panel (since June 1999 until May 2014)
ADR Training Provided / Publications in Professional Journals
- To the Sussex Law Society
- To the Brighton Area Office of the then Legal Services Commission (its Special Cases Unit for high cost cases)
- To the South Eastern Society of Chartered Accountants
- To Smith & Williamson’s Insolvency and Corporate Recovery Department (Southampton)
- To Martlets Hospice Senior Management and Clinical Teams
- To Clifford Dann LLP, Surveyors, Valuers and Auctioneers (Lewes)
- In-house training to the Litigation Fee-earners practising with Burt Brill & Cardens
- Article entitled “Mediation - The Benefits for Litigants and their CPR Obligations” published in The Legal Executive Journal November 2003
- Another entitled “Family Mediation-another way?” published in the Family Law Journal July 2010
- Other articles written for and seminars presented to local chambers of commerce and trade organisations
Non-professional / Additional Skills
Due to his Directorships, Governorships and being an Honorary Solicitor to some of the organizations listed below, Kevin has gained much operational day to day experience in the workings of many differing organisations and the need that they have from time to time for ADR.
- Former Chairman of Governors, Worth SchoolCurrent Board Advisor to Worth Abbey Ltd
- Current Director, Trustee and Company Secretary of the Martlets Hospice Limited
- Former Chairman and Director of the Friends of the Jerwood Gallery
- Current Director of and Trustee of the Jerwood Gallery, Hastings
- Current Director and Trustee of the Ditchling Museum of Art and Craft
- Former Director of Timberlane Properties Plc
- Former Honorary Solicitor to Crime Reduction Initiatives Ltd
- Former Honorary Solicitor to the Universities of Brighton and Sussex Catholic Chaplaincy Association
- Former Governor of Stoke Brunswick School Trust Ltd
Updated: February 2017