Professional Liability

Professional Liability

Chambers’ Professional Liability Group acts for professionals and their insurers and claimants in every type of claim or other form of dispute involving professionals, whether the dispute is between claimant and professional, insurer and insured, or regulator and professional.

Over many years members of Hailsham Chambers have appeared in the cases which have shaped the law relating to the liability of professionals.  The breadth of experience across all call bands permits chambers to service clients’ dispute resolution needs from the smallest complaint to an ombudsman, through to pre-action protocol letters of claim and response, to hearings in the County Court, the High Court, Court of Appeal and Supreme Court.  We often provide both leader and juniors for larger cases, and have the capacity within chambers to handle document-heavy disputes involving claims over £100 million.

Besides having the highest academic qualifications, members of the Professional Negligence Group pride themselves on being approachable to clients, commercially astute, well-prepared, and open-minded.

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Instructions to act for or against lawyers have been the mainstay of the team’s caseload for as long as professional negligence has been a specialism within chambers. As a result of this vast experience, many of Hailsham’s barristers are considered to be leaders in this field.

The expertise of Hailsham’s members is re-enforced by the fact that Solicitors’ Negligence and Liability, the bible for this specialist area, is co-authored by William Flenley KC of Hailsham Chambers and has chapters contributed by members of Chambers.

Hailsham’s barristers frequently appear in £multi-million claims and have been responsible for seminal judgments in this area. They have had significant experience of claims involving allegations ranging from outright fraud including conspiracy to breach trust, breach of fiduciary duty, and ordinary negligence.

Members of Chambers are also often instructed to advise on liability and coverage issues arising between lawyers and their insurers.

Our counsel have been instructed in many significant cases. Recent examples include:

  • Joyce & Nugent v De Cruz Solicitors [2019] EWHC 937 (Ch): application for permission to rely on without prejudice material in the context of an application against solicitors for a non-party costs order.
  • Various Claimants v Giambrone & Law [2017] EWCA Civ 1193: trial and subsequent appeal in claims for lost deposits when purchasing off plan properties in Italy, raising novel issues of compensation for breach of trust.
  • Canada Square Operations Ltd v Kinleigh Folkard & Hayward Ltd [2015] PNLR 3: successful defence at trial of a lender claim against a valuer raising issues of valuation of the borrower’s covenant under Nykredit.
  •  Waraich v Ansari Solicitors (A Firm) [2019] PNLR24. Loss of chance: Stephen Bailey appears for defendant firm of solicitors ordered to pay only nominal damages in respect of the alleged loss of chance to bring underlying claims.
  • Onlines v SBP Law (2014): an application for pre-action disclosure in the Commercial Court.
  • Margaret Mark (2) Sherma Mark v South Bank Solicitors (2014): relief from sanctions.

Hailsham Chambers offers particular expertise relating to claims against financial professionals, be they actuaries, IFAs, banks or product providers.

Members of chambers at all levels of call are equipped to handle the diverse and challenging issues presented by such claims.

Counsels’ experience covers the full spectrum of dispute resolution in this area including: 

  • referrals to the Financial Services Ombudsman
  • advice as to the legality and enforceability of the Ombudsman’s decisions
  • judicial review of the decisions of the Ombudsman 
  • claims against IFAs and other financial services professionals, ranging from small scale actions in the County Court to complex group actions in the High Court.  
  • claims involving alleged mis-selling of investment products and tax schemes, including those with an international aspect
  • claims involving issues of vicarious liability and in particular the liability of rogue agents
  • claims against financial service professionals in relation to pension schemes, trusts and pension transfers
  • claims against actuaries.

Members of the Hailsham team have great experience of claims arising from the work of surveyors and valuers in a range of contexts including: 

  •  failures to detect specific defects
  • overvaluations
  • reporting errors  
  • fraud 
  • lenders’ claims 
  • contribution claims between valuers/surveyors and solicitors or accountants or other professionals  
  • coverage disputes between surveyors and valuers and their insurers.

Members act frequently for and against accountants and auditors in High Court claims and before a variety of disciplinary bodies.

With particular expertise in cases involving breach of duty (including breach of accountancy standards), Counsel have been involved in cases about the failure to give appropriate, taxation or investment advice and failures to detect fraud or in relation to company restructuring.

Members of Hailsham's Professional Liability Group are specialists in the full range of construction and engineering claims concerning construction professionals.  Our members have experience in complex, multi-party and high-value disputes including claims against architects, engineers (civil, structural, and geotechnical), quantity surveyors, project managers and design and build contractors. Our experience spans bringing and defending claims in adjudication, arbitration and the Technology and Construction Court.

Members of Chambers have acted for or against insolvency practitioners and LPA receivers in many High Court claims, including where receivers are alleged to have failed to realise the true value of assets following bankruptcy or corporate insolvency. Counsel also have substantial experience of coverage disputes between insolvency practitioners and their insurers, including in cases where dishonesty is alleged against the insured.

Members of Chambers advise extensively on liability issues relating to professional trustees in many jurisdictions. 

Barristers at Hailsham act for or against insurance brokers where there are allegations of breach of duty, including failures to select appropriate cover or to advise as to the scope and limitations of cover under different policies, failures to obtain the necessary information from clients or to give appropriate advice on disclosure of material facts, and the failure to give notice of claims.

Hailsham Chambers acts for Directors, Officers, Trustees, Companies and their Insurers, across a range of industries, in relation to D&O insurance issues including breach of duty and of covenant, breach of trust, negligence and wrongful trading/Insolvency Act claims. We have experience of the wide range of claims which often arise including: improperly diverting business to a competitor, poaching, shadow directors, s.994/unfair prejudice claims, questionable payments and disputes about share purchase agreements/M&A. We work closely with experts in valuation and forensic accountancy. We can also assist in claims relating to health & safety, pensions liabilities and regulatory issues.  Furthermore, our insurance expertise means we are particularly well placed to assist in resolving the coverage disputes which often arise in this line of business.

For many years Hailsham has advised insurers and insureds about coverage issues. More senior members often sit as arbitrators in such disputes (frequently where a solicitor or accountant is the insured). The team is well versed in the intricacies of interpreting policy wording, whether and to what extent notifications are effective, fraud, successor insurance and co-insurance issues, as well as aggregation issues in more complex or high value disputes. We help insureds develop and implement strategies to resolve difficult coverage problems and lead market meetings amongst different insurers to agree common strategies. We advise those looking to bring large claims against insureds about insurance issues and have acted in many Third Parties (Rights Against Insurers) 2010 Act claims. In all this, we are fortified by our deep knowledge of underlying professional liability claims and our knowledge of how the insurance market actually works. Hailsham can also offer advice and support in relation to Directors' and Officers’ Liability claims and we are engaged in a number of Covid Business Interruption claims.

Members of Chambers are skilled in assisting clients in a range of dispute resolution environments, including arbitration and mediations, where members act either as mediators or as constructive contributors to settlement.  The Professional Liability Group is also a supporter of the PNBA Adjudication Scheme and indeed members were closely involved in its formulation and launch.