Professional negligence

Barristers involved in this field deal with claims against professionals such as architects, accountants, solicitors and financial advisers who have allegedly failed to provide services to the level of care and skill which a member of that profession would be expected to demonstrate. Clinical negligence is a type of professional liability that involves disputes between patients and healthcare providers (usually doctors), centring on quality of care. Defendant professionals will usually have indemnity insurance against such claims.

Starting off on a law course at Merton College, Oxford, Shail Patel wasn’t sure he’d made the right choice. After a term he tried to switch his field of study to English literature, but as it happens the old stereotype of the sanctimonious English don sometimes rings true, and ultimately things didn’t work out. “I think they were happy to see me leave!” he laughs. “So it was down to carrying on with law at Merton or doing English somewhere else – which didn’t seem like a great option – so I decided to stick with law, and I’m glad I did in the end, because I started to get the hang of it.” As the course progressed, he also started to enjoy it more, and after attending several law fairs and speaking to barristers, he grew ever more enticed by the “intellectual aspects” of the law. So despite the initial diversion, academia’s loss proved to be the legal profession’s gain.

After the comparatively easy-going university years, plus a stint at Harvard where he obtained an LLM (and sightseeing in the United States also featured prominently), Shail describes his pupillage at Fountain Court Chambers as “a fairly tough experience – suddenly having to show up at 8:30am in a suit every day, after two years of being a student, was quite a challenge.” But the experience was nonetheless “very interesting and stimulating” and put him in good stead to thereafter take a tenancy at 4 New Square, where professional negligence briefs are a mainstay of the set’s practice.

Always a story unfolding

A subset of commercial litigation, professional negligence typically comprises only a part of a barrister’s caseload, alongside contractual disputes, construction work and instructions involving financial services providers and insurers, among other things. But having dipped a toe in English literature while an undergraduate, Shail enthuses over the narrative thrill and personal side of professional negligence cases: “Unlike some commercial litigation, there’s always a story – whether it’s some transaction or litigation that’s gone wrong, or some fraud that accountants have failed to uncover – there’s usually some human interest behind it all. With certain types of commercial litigation you’re basically just staring at a contract all day – which is a different intellectual challenge, but not something you can really talk about at a dinner party! Professional negligence work often involves some element of human interest and human or business endeavour.”

As a practice area, it offers both range and depth. “One interesting thing is that you’re tasked with mastering someone else’s professional discipline. Whether it’s an accountant, surveyor, architect or insurance broker, you need to have a mastery of how they should be doing their job and what principles they should be applying in practising their business,” he notes. In terms of trends, he cites the unfailing presence of “some scheme out there that everyone thinks is a good idea at the time but ultimately goes wrong and gives rise to litigation”. Of late he has kept busy with liability cases triggered from the aftermath of the dot-com bust and the global financial crisis that followed.

“We’re seeing a huge amount of failed film, technology and other investments and tax mitigation schemes, ideas from the early 2000s to 2009 – before the government began to shut down this sort  of thing – leading to a lot of large-scale litigation rumbling through the courts.”

New challenges ahead

With the modern-day prevalence of electronic communication and technology – and the promise of further innovation on that front – professional negligence practitioners will have ample new challenges to tackle in future. Shail points to the rise of online financial fraud and AI as opening a thought-provoking debate on who exactly is liable for tech-related misdeeds and to what extent, which will ultimately be resolved by the courts. “It is only a matter of time before AI and robo-asset management give rise to litigation, people claiming they received bad investment advice from a robot and the like; it’ll be a big thing in the future.”

Doing the detective work

The adrenaline rush of going to trial is definitely a highlight of the job, but Shail underscores the value of a level-headed and measured approach. “At the commercial Bar we don’t get to court as much as the criminal barristers. In some ways everything we do is preparing for court, whether it happens or not – and often it doesn’t – but when it does, and it comes off in a way that you know is because of how you’ve steered the ship until that day – that’s a rewarding thing.” He likens the less emotionally charged days of case preparation to “forensic detective work, putting the story together and understanding the nuances – ultimately you have to satisfy yourself that you’ve picked up on  every relevant fact of the case; sometimes you’ll find something that no one else has found and it’s critical.” And when and if the case ultimately comes before the court, the pay-off can be all too sweet: “To cross-examine an expert or a witness accused of dishonesty in a way that leads to them giving an answer that they don’t even know is fatal to their side’s case – that’s when you feel like you’re really adding value and can feel like you know what you’re doing – until then it’s just educated guesswork!”

Be clear and cordial

When asked about what it takes for a budding barrister with an interest in professional negligence to succeed, Shail pinpoints the simple yet potent quality that has proved so useful to him amid all that sleuthing, case building and courtroom advocacy: clarity of thought. “It’s not something you can just ‘do’, but something you can focus on achieving – to always express yourself in as clear and logical a way as possible.” He also has some sage advice which perhaps goes overlooked too often: “Try to make a positive impression on everyone you meet. I say this from two perspectives: I’m involved in our pupillage recruitment process and I went through it myself a long time ago. It’s not just about leaving a good impression on the barristers that interview you, but also the ones you meet on mini-pupillages, or at recruitment events. It also includes staff involved in recruitment and even the receptionist at a chambers you visit. You don’t have to tell them how great you are, but rather be  professional, in a way that leaves those people with the feeling that you are a person they would want to share a working environment with in the future.”