Professional negligence law: area of practice (barristers)

Professional negligence barristers investigate claims made against professionals or professional organisations, explains Tamara Oppenheimer from Fountain Court.

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Financial cases are typically misselling cases, where a financial institution sells an individual or a company a financial product which may provide advice about what an individual or a company should buy.

Professional negligence cases arise where an individual or company engages a professional to provide services and those services fall below the standard expected of that professional. It is an area primarily concerned with the laws of contract and tort. You will normally have contractual structure to your engagement and you will also have tort law, which may run concurrently or impose slightly different duties.

Types of client that professional negligence barristers engage with

Clients could be from a wide range of industries, but are most likely to be brokers, financial advisers, accountants, solicitors, barristers or actuaries. Other clients may be from the construction industry in roles such as architects, engineers and surveyors. In many instances it may be the insurer, rather than the professional, conducting the case.

You may occasionally represent an unusual type of client. I once had to handle a case for auction house Christie’s; they were alleged to have been negligent in a description in their catalogue to a potential purchaser. As counsel on the case you’re dealing with what they’re auctioning – examining 18th century bronzes makes a nice change from actuarial work!

Financial cases are typically misselling cases, where a financial institution sells an individual or a company a financial product which may provide advice about what an individual or a company should buy. The claimant does so and suffers losses as a result and puts responsibility on the original adviser. You have to disentangle and investigate the business before you can determine whether the losses claimed actually had anything to do with the advice they received.

Smaller cases, such as a simple interest rate swap claims, can last around one to one-and-a-half-years, while larger professional negligence cases can last two or even three years. Cases can be heard in the Queen’s Bench Division, Chancery Division, Commercial Court, Mercantile Court, and Technology and Construction Court, depending on the area of professionalism. Financial cases are typically heard in the Commercial Court and Mercantile Court.

Court proceedings and settlements in professional negligence law

There is not a huge amount of court work because so many of these cases settle before trial. In long-running cases, other than for procedural matters, you may see little of the court room for a year or more, but then be in court for weeks at a time.

Settlements can be quite frustrating. As an advocate you want to spend time in court and go to trial, but if you’ve got insurers behind a case, they may want to arrive at a deal sooner than a trial.

It is possible to have a good work/life balance in this area. This is not an area where you’ve got injunctions or the urgency of areas such as crime. You can plan and you’ve got a timetable for dealing with professional clients.

Is professional negligence work recession-proof?

Many of the financial cases we see today actually first emerged during the financial crisis. A lot of companies lost money and found they wanted to blame the institutions that advised them. The cases being brought following the 2008 financial crisis are time-barred, but there are new arguments emerging off the back of the FCA’s review and redress schemes. Customers unhappy with redress have constructed a new claim to say banks owed a duty to carry out review properly and by failing to offer redress are in breach of such a duty. One of the major cases that would be an essential read on such matters is CGL Group Limited v. Royal Bank of Scotland [2016] EWHC 281 (QB).

What can you expect as a pupil in professional negligence law

Pupils are protected from working crazy hours. They work a full day from 9.00 am until about 6.30 or 7.00 pm, with no long evenings and weekends. Pupils are typically asked to take research notes, draft pleadings or a defence and draft skeleton arguments for hearings. They may also be asked at the pre-action stage to review the papers and come up with the possible merits on a case. The work is always handed down through a pupil supervisor.

Types of law practised by professional negligence barristers

  • Contract
  • Tort

TAMARA OPPENHEIMER is a barrister at FOUNTAIN COURT CHAMBERS. She graduated with a degree in politics, philosophy and economics from the University of Oxford in 1995 and went on to become a solicitor at Allen & Overy. She was called to the Bar in 2002.

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