Lauren Sutherland QC calls to Bar of England and Wales and joins Byrom Street Chambers
Ampersand is pleased to announce that Lauren Sutherland QC has called to the Bar of England and Wales and joined Byrom Street Chambers in Manchester. Lauren will continue her practice in Scotland with Ampersand, alongside her practice in England and Wales.
Lauren is a widely recognised leader in the field of Clinical Negligence and was counsel for the successful appellant in the landmark case in the Supreme Court of Montgomery v Lanarkshire Health Board.
Lauren will continue to practise in the fields of Clinical Negligence and Serious Personal Injury in both jurisdictions.
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Ampersand Advocates welcomes Top Rankings success in latest Chambers and Partners UK Bar Guide 2022
Ampersand has once again received top tier rankings across a number of areas of practice in the latest published guide to the legal profession, Chambers and Partners UK Bar Guide 2022.
Ampersand received 68 listings across 17 areas of practice, ranking as top tier (band 1) in Clinical Negligence and Planning & Environmental Law as a Set, and band 2 in Administrative & Public law, Civil Liberties & Human Rights, Commercial Dispute Resolution, Personal Injury, Professional Negligence, Real Estate Litigation and Restructuring/Insolvency as a Set. 5 members are noted as “star individuals”. There is wide practice for the clerking team and client service too.
Noted as a Band 1 set for Clinical Negligence, “Ampersand Advocates retains its reputation as a market-leading stable for clinical negligence matters. Its advocates continue to provide expert legal advice and representation to both pursuers and defenders in a wide range of disputes, including claims relating to birth and catastrophic brain and spinal injuries. Members are well versed in cases arising from alleged failures in diagnosis and surgical errors, and regularly appear at fatal accident inquiries. The stable also houses considerable expertise in multiparty actions stemming from the use of medical equipment, and several of its advocates have recently been involved in the Scottish Mesh Litigation, a class action in which over 500 claims were brought against the NHS in connection with allegedly defective vaginal mesh. Our rankings include 2 “Star Individuals”, Maria Maguire QC and David Stephenson QC, with 10 further silks and 7 juniors also ranked – Simon Bowie QC, Jamie Dawson QC, Simon Di Rollo QC, Una Doherty QC, Lisa Henderson QC, Vinit Khurana QC, Archie MacSporran QC, Geoffrey Mitchell QC, Graham Primrose QC, Lauren Sutherland QC, Fiona Drysdale, Mark Fitzpatrick, James McConnell, Paul Reid and Phil Stuart.
Ampersand’s new Band 1 listing in Planning & Environment states “Ampersand is a leading stable with a strong offering of advocates in both the junior and senior ranks.” and “Ampersand Advocates is well regarded for the complex planning and environmental work undertaken by its advocates. Members of the stable regularly act in judicial reviews and challenges to planning permissions and frequently act on behalf of developers, objectors, public sector bodies and energy companies. Members are regularly engaged in high-profile matters, including those relating to large renewable energy projects. Rankings include Malcolm Thomson QC as “Star Individual”, Marcus McKay QC, Ailsa Wilson QC and new silk Laura-Anne van der Westhuizen QC.
Band 2 listings include Administrative & Public Law where Ampersand is praised “houses highly praised practitioners who are skilled at acting in public law cases involving significant constitutional and human rights issues. They frequently appear before the highest courts in the UK and the EU.” The rankings include “Star Individual” Aidan O’Neill QC, along with Douglas Ross QC, Laura-Anne van der Westhuizen QC, Paul Reid and Usman Tariq.
In Civil Liberties & Human Rights Ampersand is noted as a “highly regarded civil liberties and human rights stable, known for representing both private individuals and public bodies in significant proceedings. Practitioners at Ampersand are regularly instructed by the government and the Equality and Human Rights Commission.” The rankings include Aidan O’Neill QC, Douglas Ross QC and Usman Tariq.
In Commercial Dispute Resolution Chambers state Ampersand is “well renowned for its consistent involvement in high-profile commercial disputes. The stable offers a large team comprising highly rated advocates at the senior and junior level. The advocates are instructed on behalf of corporations and financial institutions and are involved in a variety of related areas of practice including intellectual property and insolvency.” The rankings include Robert Howie QC, Graeme Hawkes QC, Laura-Anne van der Westhuizen QC, Ross Anderson, Giles Reid, Paul Reid, Usman Tariq and Tim Young.
Within Personal Injury “Ampersand Advocates is a highly regarded stable for personal injury matters and houses a number of dedicated senior and junior advocates. Members act for both pursuers and defenders, including several major insurers, in the full range of claims, and offer considerable expertise in the handling of catastrophic injury cases arising from road traffic and workplace accidents. The team is also well regarded for its expertise in complex product liability and occupiers’ liability disputes and matters involving accidents abroad. The stable’s tenants are regularly called upon to appear in fatal accident inquiries, where they have experience of acting for government agencies, health boards and local authorities.” Rankings include “Star Individuals” Maria Maguire QC and Graham Primrose QC with others ranked Isla Davie QC, Simon Di Rollo QC, Lisa Henderson QC, Euan Mackenzie QC, Douglas Ross QC, Alan Cowan, Chris Marney, Jenny Nicholson, Louise Milligan.
A new Set ranking in Professional Negligence declares “Ampersand Advocates is recognised as a leading set for professional liability matters in Scotland. The advocates often advise and act in proceedings on behalf of and against a suite of professionals including solicitors, surveyors, architects and financial advisers.” The rankings include Chris Marney, Paul Reid and Usman Tariq.
In another new Set ranking area, Real Estate Litigation, it exclaims “Ampersand Advocates offers a strong bench of well-regarded advocates who are active across a broad range of real estate litigation topics. The set demonstrates strong expertise in areas of overlap between commercial and real estate disputes. Members are instructed at all levels from the Supreme Court down.” Rankings include Robert Howie QC, Laura-Anne van der Westhuizen QC, Ross Anderson, Giles Reid and Tim Young.
Within Restructuring/Insolvency “Ampersand Advocates is well regarded for its handling of a wide range of restructuring and insolvency matters. The stable’s advocates are frequently instructed to represent administrators, companies, banks and insolvency office holders in complex claims involving allegations of wrongful trading and breach of fiduciary duty, among other matters. Members have experience of appearing in both domestic and cross-border matters, and are regularly called upon to act for and advise their clients on both contentious and non-contentious insolvency cases.” Rankings include Robert Howie QC, Ross Anderson and Usman Tariq.
There are individual rankings in: Agriculture and Rural Affairs for Laura-Anne van der Westhuizen QC; Company for Tim Young; Employment for Aidan O’Neill QC; Immigration for Alan Dewar QC; Information Technology and Intellectual Property for Usman Tariq; Product Liability for Paul Reid; and Tax for Ross Anderson.
The Ampersand clerks receive wide praise across all areas of practice described as “fantastic and always very helpful… approachable and knowledgeable….Very efficient and pleasant.” The client service is also noted as “ahead of the curve in terms of its responsiveness and use of technology” and notes Ampersand “was the first Scottish stable to offer video conferencing.”
On the recent rankings, Practice Manager, Alan Moffat, said: “This is again wonderful recognition and praise for all of the excellent work our advocates and my team does on a continual basis. My thanks goes to everyone who took the time to provide Chambers with their views. We work in collaboration with the profession and it is pleasing to hear those that instruct our members recognise the value our members bring to the legal team. I am also proud of the excellent and hard work my team puts in daily and am pleased to see that appreciated too.”
The full rankings can be viewed on the Chambers and Partners website here.
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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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