Ampersand Advocates ranked as top tier set by Legal 500
Ampersand is delighted to once again be recommended as a top-tier set by The Legal 500 UK Bar Directory in their latest listings for 2021. Listed as tier 1 in 3 areas and tier 2 in another, Ampersand has collected 14 Senior Counsel rankings, 19 Junior Counsel rankings, including 5 rising stars, across the Scottish Bar listings.
Administrative and Public Law
Stable Testimonials
‘They have excellent senior counsel who can be called upon in the most challenging of cases even at short notice, as well as experienced juniors. Their flexibility and forward-thinking approach to technology has made instructing seamless even during the difficulties of the pandemic.’
‘Ampersand has a wide ranging practice, and therefore can always recommend suitable advocates.’
Commercial Disputes
TIER 2
Ampersand Advocates is home to a team of civil litigation advocates adept at advising on a range of commercial disputes and IP/TMT-related work. Unled, Eoghainn MacLean represented Rangers in its dispute with the SPFL as to the termination of the 2019-20 season. Elsewhere in the stable, Paul Reid has notable expertise in professional negligence work, while Usman Tariq continues to excel in technology-related work – in one matter, he acted for Sony concerning leaked images, originally hacked in Scotland, of then-upcoming AAA video game The Last of Us 2. Recent news includes the elevation of Laura-Anne Van Der Westhuizen QC to silk in the 2021 round; Craig Sandison QC (as was) is now a Senator of the College of Justice; and Dorothy Bain QC was appointed Lord Advocate (the chief legal officer of the Holyrood government). Ranked individuals are: Ranked individuals are: Alan Dewar QC, Robert Howie QC, Graeme Hawkes QC, Laura-Anne van der Westhuizen QC, Paul Reid, Ross Anderson, Eoghainn MacLean, Chris Marney, Usman Tariq and Tim Young. Rising Stars noted are: Mark Boni and Michael Way.
Stable testimonials
‘I have the highest regard for Ampersand as a stable. Interacting with all members of chambers, I have the sense I was dealing with advocates at the top of their game, in terms of their grip on the law and sheer insight.’
‘I only use commercial litigation advocates as that is the focus of my practice, but in so far as Ampersand offers commercial litigation advocates, they generally have a range of possible candidates of varying levels of experience.’
Personal Injury and Medical Negligence
TIER 1
Ampersand Advocates is active in a range of heavyweight personal injury and medical negligence litigation, with to some extent a focus on the latter, an area in which it is instructed by Scotland’s leading pursuer firms as well as defenders. Douglas Ross QC is active in both these areas, and in the personal injury field, he has a following in pursuer-side work concerning workplace incidents. Graham Primrose QC and Simon Bowie QC are instructed for the NHS in the mesh implant class action litigation. Vinit Khurana QC, who is also a member of 2 Temple Gardens in England, is thought to be the only doctor-turned-advocate in practice in Scotland. Medical regulatory work is another area of expertise for the team. Alan Dewar QC, David Stephenson QC, Euan Mackenzie QC, Geoff Mitchell QC, Graham Primrose QC, Lisa Henderson QC, Maria Maguire QC, Simon Bowie QC, Douglas Ross QC, Una Doherty QC, Vinit Khurana QC, Archie MacSporran QC, James McConnell, Fiona Drysdale and Jennifer Nicholson. Rising Star noted: Shane Dundas.
Stable Testimonials
‘The stable has a great selection of advocates with very specialist medical negligence experience. I have never had an issue with availability of counsel.’
‘They provide annual training on clinical negligence which is always helpful. Very helpful clerking team. Good range of expertise.’
Property, Planning and Construction
TIER 1
Ampersand Advocates handles a lot of work concerning the use of space, with many areas crossing over with its public law and commercial expertise. Eoghann Maclean represents the Duke of Argyll in a £7m claim against the Ministry of Defence concerning large quantities of unexploded WW2-era ordinance in his forest, which there was an allegedly bungled attempt to clear in the 1970s, while Laura-Anne Van Der Westhuizen QC – a 2021 silk appointment – is particularly active in work concerning planning and rural property. Malcolm Thomson QC has been active in work concerning the Electronic Communications Code, which underpins the UK-wide legal framework for physical telecoms infrastructure. Ranked individuals are: Robert Howie QC, Marcus McKay QC, Malcolm Thomson QC, Ailsa Wilson QC, Laura-Anne van der Westhuizen QC, Eoghainn MacLean, Chris Marney, Tim Young, Ross Anderson, Giles Reid. Rising Star noted: Alex Sutherland.
Stable Testimonials
‘The stable has a full breadth of advocates at all levels of experience with expertise over a broad area of law.’
‘Ampersand is a leading stable with a strong offering of advocates in both the junior and senior ranks across a variety of practice areas. The offering for planning and environmental matters is particularly strong, and includes some of the most impressive advocates in this area.’
Employment
Aidan O’Neill QC ‘His forte is in debating the court – he is never satisfied with the final version of an argument and is always looking to improve it.’
Full listings, including all individual rankings can be viewed on the Legal 500 website here.
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Mary Ellen Stewart
Mary Ellen Stewart called to the Bar in 2021, after training and qualifying with Brodies LLP, and latterly working there as a senior solicitor.
As a solicitor, Mary Ellen had a busy practice dealing with a broad range of commercial disputes. Her practice had a particular focus on commercial contracts, banking and finance, insolvency and professional liability litigation. When in private practice, Mary Ellen appeared in the Sheriff Courts and instructed Counsel in Court of Session cases.
Mary Ellen has a particular interest in professional liability and regulation. She also has an interest in maritime and shipping law, and is the Advocate member of the Law Society of Scotland’s Marine Law Sub-Committee. Mary Ellen is also a part-time tutor of Contract Law and Unjustified Enrichment at Edinburgh University.
Mary Ellen was appointed to the Advocate General’s panel of Nominated Presenting Officers to the Home Office in 2021.
Mary Ellen is fluent and fully literate in Scottish Gaelic and is well placed to undertake work involving consideration of documents in Gaelic.
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Decree of absolvitor for Forth Valley Health Board upheld by the Inner House
Ampersand’s Una Doherty Q.C. acted for the defenders and reclaimers in the action Jennifer McCulloch and others v Forth Valley Health Board [2021] CSIH 21. On 1 April 2021, the Second Division of the Inner House refused the pursuers’ reclaiming motion and allowed the defenders’ cross-appeal.
Pursuers’ grounds of appeal
The pursuers had reclaimed certain of the Lord Ordinary’s findings after proof which resulted in decree of absolvitor (Jennifer McCulloch and others v Forth Valley Health Board [2020] CSOH 40). The action related to the death on 7 April 2012 of Mr McCulloch, who suffered a fatal cardiac arrest at home as a result of cardiac tamponade. The pursuers’ criticisms related to the care given to Mr McCulloch in hospital prior to being discharged home on 6 April 2012. In the reclaiming motion, the pursuers claimed that the Lord Ordinary erred (i) in finding that there was no duty on the cardiologist to prescribe non-steroidal anti-inflammatory drugs; (ii) in his application of the law on information disclosure as set out in Montgomery v Lanarkshire Health Board 2015 UKSC 11; (iii) in his approach to causation; and (iv) in his assessment of the evidence of the defenders’ independent expert.
In its Opinion, the Inner House discussed the role of the appellate court (at [25] – [26]), and the consideration of skilled evidence in terms of Kennedy v Cordia (Services) LLP 2016 UKSC 59 and Bolitho v City Hackney Health Authority [1988] AC 232 (at [30] – [32]). At [35] – [41], the Inner House agreed with the Lord Ordinary’s approach and Lord Boyd’s analysis in AH v Greater Glasgow Health Board 2018 SLT 535 that the ratio of Montgomery was a limited innovation on the rule in Bolam/ Hunter v Hanley, and that there was no obligation on a doctor to disclose and discuss a treatment that she does not in the exercise of professional judgement regard as reasonable. Montgomery had no application in the circumstances of the present case.
The Inner House also rejected the pursuers’ criticisms of the Lord Ordinary’s assessment of the defenders’ expert witness Dr Bloomfield as an independent witness (at [27] – [34]), and concluded that the Lord Ordinary was entitled to reach the conclusion on the basis of that evidence that there was no duty to prescribe non-steroidal anti-inflammatory drugs (at [41] – [47]).
On the issue of causation, the Inner House confirmed that in cases of medical negligence causation remains a matter of proof to the standard of a balance of probabilities. Where the scenario is hypothetical the issue must be assessed on the general basis of likelihood, having regard to the whole evidence on the matter. The evidence must be looked at in the round; it is necessary to lead evidence which can satisfy the court that on balance, the loss (here the death) would have been avoided had the predicated step been followed. The Inner House was satisfied that the Lord Ordinary approached the evidence on causation on this basis (at [59]). In respect of the prescription of non-steroidal anti-inflammatory drugs, there was no basis upon which the pursuers could have succeeded on causation (at [60]). In respect of the repeat echocardiogram, the Lord Ordinary correctly considered that consideration of the issue of causation involved speculation, given the lack of evidence over what treatment may have commenced or when and the likelihood of it preventing the death, had a repeat echocardiogram been carried out, and that the case on causation failed (at [61]).
Defenders’ cross-appeal
The defenders cross-appealed the Lord Ordinary’s one finding of breach of duty, in respect of the cardiologist’s failure on 3 April 2012 to order that there be a further echocardiogram prior to Mr McCulloch’s discharge. Although the Lord Ordinary found that there was negligence in this single respect, he concluded that the pursuers had not proved on the balance of probabilities that, but for that breach of duty, the death would not have occurred, and accordingly the pursuers’ case failed on causation.
The defenders successfully argued that the Lord Ordinary erred in concluding that the Bolitho test for rejection of supporting expert evidence was met in respect of Dr Bloomfield’s evidence on this issue that there was no duty to order such a repeat echocardiogram. The Inner House concluded that the Lord Ordinary had erred in his reasoning and conclusions, and that Dr Bloomfield gave clear and defensible reasons for his opinion (at [48] – [57]). The cross-appeal was granted.
Representation
Ampersand’s Una Doherty Q.C. represented the defenders, along with Ewen Campbell, Advocate. The pursuers were represented by Ampersand’s Lauren Sutherland Q.C., along with Yvonne Waugh, Advocate.
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Jennifer McCulloch and others v Forth Valley Health Board [2021] CSIH 21
On 1 April 2021, the Second Division of the Inner House refused the pursuers’ reclaiming motion and allowed the defenders’ cross-appeal.
Pursuers’ grounds of appeal
The pursuers had reclaimed certain of the Lord Ordinary’s findings after proof which resulted in decree of absolvitor (Jennifer McCulloch and others v Forth Valley Health Board [2020] CSOH 40). The action related to the death on 7 April 2012 of Mr McCulloch, who suffered a fatal cardiac arrest at home as a result of cardiac tamponade. The pursuers’ criticisms related to the care given to Mr McCulloch in hospital prior to being discharged home on 6 April 2012. In the reclaiming motion, the pursuers claimed that the Lord Ordinary erred (i) in finding that there was no duty on the cardiologist to prescribe non-steroidal anti-inflammatory drugs; (ii) in his application of the law on information disclosure as set out in Montgomery v Lanarkshire Health Board 2015 UKSC 11; (iii) in his approach to causation; and (iv) in his assessment of the evidence of the defenders’ independent expert.
In its Opinion, the Inner House discussed the role of the appellate court (at [25] – [26]), and the consideration of skilled evidence in terms of Kennedy v Cordia (Services) LLP 2016 UKSC 59 and Bolitho v City Hackney Health Authority [1988] AC 232 (at [30] – [32]). At [35] – [41], the Inner House agreed with the Lord Ordinary’s approach and Lord Boyd’s analysis in AH v Greater Glasgow Health Board 2018 SLT 535 that the ratio of Montgomery was a limited innovation on the rule in Bolam/ Hunter v Hanley, and that there was no obligation on a doctor to disclose and discuss a treatment that she does not in the exercise of professional judgement regard as reasonable. Montgomery had no application in the circumstances of the present case.
The Inner House also rejected the pursuers’ criticisms of the Lord Ordinary’s assessment of the defenders’ expert witness Dr Bloomfield as an independent witness (at [27] – [34]), and concluded that the Lord Ordinary was entitled to reach the conclusion on the basis of that evidence that there was no duty to prescribe non-steroidal anti-inflammatory drugs (at [41] – [47]).
On the issue of causation, the Inner House confirmed that in cases of medical negligence causation remains a matter of proof to the standard of a balance of probabilities. Where the scenario is hypothetical the issue must be assessed on the general basis of likelihood, having regard to the whole evidence on the matter. The evidence must be looked at in the round; it is necessary to lead evidence which can satisfy the court that on balance, the loss (here the death) would have been avoided had the predicated step been followed. The Inner House was satisfied that the Lord Ordinary approached the evidence on causation on this basis (at [59]). In respect of the prescription of non-steroidal anti-inflammatory drugs, there was no basis upon which the pursuers could have succeeded on causation (at [60]). In respect of the repeat echocardiogram, the Lord Ordinary correctly considered that consideration of the issue of causation involved speculation, given the lack of evidence over what treatment may have commenced or when and the likelihood of it preventing the death, had a repeat echocardiogram been carried out, and that the case on causation failed (at [61]).
Defenders’ cross-appeal
The defenders cross-appealed the Lord Ordinary’s one finding of breach of duty, in respect of the cardiologist’s failure on 3 April 2012 to order that there be a further echocardiogram prior to Mr McCulloch’s discharge. Although the Lord Ordinary found that there was negligence in this single respect, he concluded that the pursuers had not proved on the balance of probabilities that, but for that breach of duty, the death would not have occurred, and accordingly the pursuers’ case failed on causation.
The defenders successfully argued that the Lord Ordinary erred in concluding that the Bolitho test for rejection of supporting expert evidence was met in respect of Dr Bloomfield’s evidence on this issue that there was no duty to order such a repeat echocardiogram. The Inner House concluded that the Lord Ordinary had erred in his reasoning and conclusions, and that Dr Bloomfield gave clear and defensible reasons for his opinion (at [48] – [57]). The cross-appeal was granted.
Representation
Ampersand’s Una Doherty Q.C. represented the defenders, along with Ewen Campbell, Advocate. The pursuers were represented by Ampersand’s Lauren Sutherland Q.C., along with Yvonne Waugh, Advocate.
Opinion of Second Division can be found here.
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Ampersand silk speaking at International webinar by Commonwealth Lawyers Association
Lauren Sutherland QC is honoured to be presenting at the Webinar arranged by the Commonwealth Lawyers Association on “Rationing Healthcare in Times of a Global Pandemic”. The event is taking place on 16th March at noon GMT and will be broadcast live on YouTube.
Many Commonwealth countries healthcare systems face unprecedented levels of demand. The media is reporting that many intensive care units are or are soon to be full. How does the law ration access to life saving healthcare and how do Commonwealth judges make such decisions? Is it even a question of law or is it really an ethical decision?
Registration here and subscribe to YouTube Channel here.
Chair :
- John McKendrick QC, CLA Executive Committee
Keynote remarks :
- The Hon. Mr Justice Hayden, Vice President of the English Court of Protection
Speaker panel:
- Raja Eileen Soraya, Partner, Messrs Raja, Darryl & Loh, Malaysia,
- Lori Stoltz, Morris+Stoltz+Evans LLP, Canada
- Lauren Sutherland QC, Scotland
- ‘La-olu A. Osanyin, Vice President (Africa), World Association for Medical Law (WAML), Nigeria
- Fiona Scolding QC, Landmark Chambers, England
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Judgment in RTA claim offering guidance on apportionment between insurers and health care providers issued
Lady Wise has today issued her judgment in Widdowson v Liberty Insurance. It offers guidance on apportionment between the insurers of a driver who caused a fatal RTA and the health care providers who admitted breach of duty in respect of the care one of the victims of the accident received. Lady Wise held that the driver should bear by far the greatest share of the blame for what happened and apportioned 70% of the liability to his insurers. The remaining liability was split equally between the two health boards. Lady Wise also offered helpful guidance on the extent to which expert evidence can be led about the extent of any departure from normal practice by medical professionals, holding that expert evidence about the extent of fault was not admissible.
Ampersand’s Lauren Sutherland, QC represented the pursuers; Michael Stuart, QC and Jenny Nicholson represented the first defenders; David Stephenson, QC represented the second defenders; and Paul Reid represented the third defenders.
The judgment is available here
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