Professional negligence law

Professional negligence claims cover our lives from the cradle (obstetricians) to the grave (funeral directors). The barrister specialising in professional negligence has the opportunity to consider the practices of a wide range of professionals, for example accountants, solicitors, financial advisers and surveyors, although it is common to specialise in particular professions. Did the person holding himself or herself out as qualified in that particular discipline exercise the skill and care that could reasonably be expected?

A professional negligence law barrister's work

The professional negligence practitioner is likely to spend a significant proportion of his or her week in chambers, drafting statements of case, advising, and meeting clients and experts in conference. Following the advent of pre-action protocols (which outline the steps that parties should take to exchange information about a prospective claim) much of one’s time may be spent drafting pre-action protocol letters or, if instructed on behalf of insurers, responding to the same.

A very large percentage of professional negligence claims settle, although those that do not are sometimes surprising. Any trial is likely to involve important evidence from independent experts in the discipline concerned. The cross-examination of expert witnesses is a difficult skill to acquire but is essential to the development of one’s practice. Knowing as much as one can about the area of expertise for the duration of that case is essential.

Claims against some professions appear to be cyclical or dependent on particular economic conditions. For example, claims against solicitors and valuers are very common after any downturn in the property market while claims against financial advisers will be more prevalent following significant falls in the equity markets. Being up to date with the general news may enable one to anticipate the next growth area in professional negligence claims.

Professionals will normally be covered by indemnity insurance. Professional negligence practitioners may often have to consider coverage issues concerning the professional's insurance. A good understanding of insurance law is therefore an advantage.

Most professions are governed by their own professional body, which will exercise a regulatory and disciplinary role over its members. Professional negligence claims and disciplinary proceedings may arise out of the same or similar facts and the professional negligence practitioner may be ideally placed to act in the regulatory/disciplinary proceedings also.

Recent hot topics in professional negligence law

Keeping up to date with the law is obviously essential. Recent hot topics have included the assessment of damages by reference to the loss of a chance, limitation (the period of time within which a claim must be brought), the effect of the new solicitors' practice rules and the extent of a solicitor’s retainer (the contract between a solicitor and client).

Is professional negligence law recession-proof?

Professional negligence law often greatly increases during periods of economic downturn. Banks and lenders have already started putting together teams to bring claims against valuers and solicitors arising out of the downturn in the property market. The large falls in the stock market have also led to claims against financial and pension advisers and solicitors.

What skills do professional negligence barristers need?

• Analytical skills.
• Empathy.
• Sometimes, the recognition that ‘there but for the grace of God go I’.

Professional negligence law pupillages

Those undergoing pupillage with a professional negligence practitioner should have the opportunity to draft statements of case and advices and will learn much from conferences, which are an essential feature of this area of work. The scope for court work in one’s early years is limited, although interim applications concerning the extent of expert evidence required or the relevance of certain categories of documents remain quite common. Trials in the early years may arise out of claims brought by a professional for unpaid fees that are then met by a counterclaim for losses caused by the alleged negligence of the professional. These disputes can even be found in the small claims court.

Types of law practised

• Contract.
• Tort.

Peter J Kirby is a barrister at Hardwicke Building. He worked as a solicitor before being called to the Bar in 1989.