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.
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 junior panel of Standing Junior Counsel to the Advocate General for Scotland 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.
Emma Busby joined Ampersand as a Deputy Clerk in February 2020. Prior to joining us, Emma worked for the Member of Parliament for Edinburgh South and brings with her experience of working in a fast paced environment and front facing administrative role. Despite having no previous experience of working in the Legal sector, Emma’s personable outlook and efficient work ethic makes her a great asset to the clerking team.
Ampersand Advocates Top Rankings success in latest Chambers and Partners UK Bar Guide
Ampersand has 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 2020.
Ampersand received 60 listings across 16 areas of practice, ranking as top tier (band 1) in Clinical Negligence as a Set, and band 2 in Administrative & Public law, Civil Liberties & Human Rights, Commercial Dispute Resolution, Planning & Environment, Personal Injury, Product Liability and Restructuring/Insolvency as a Set. 5 members are noted as “star individuals”.
Noted as a Band 1 set for Clinical Negligence, Ampersand has 18 rankings in this area, including 2 “Star Individuals”. The guide says “Ampersand dominates the Scottish medical negligence market due to its outstanding reputation and impressive offering of advocates. It has a wide selection of juniors and silks at the stable, who act on behalf of both claimants and defenders. Members have far-reaching expertise, covering all areas of clinical negligence, including the most severe birth injuries, fatal surgical errors and cancer cases, as well as widely publicised group actions concerning medical device liability, such as the pelvic mesh litigation. Instructing solicitors point out that the set “has depth and very strong, specialised practitioners.” The clerks also receive high praise “The service is first class. The clerks are extremely approachable, very helpful and nothing is too much trouble for them.” “Alan Moffat is the lead clerk and is a good point of contact. He is helpful and accommodating, so I can go directly to him if I need something urgently.” The “Star Individuals” are Maria Maguire QC and David Stephenson QC.
Band 2 listings include Administrative and Public law where Ampersand is noted as a “Highly regarded stable which possesses several standout advocates acting in important constitutional, commercial and human rights cases. The advocates represent petitioners and respondents in judicial reviews, advise public bodies on the interpretation of regulations and legislation, and act for core participants in public inquiries”. In Civil Liberties & Human Rights the Band 2 listing notes Ampersand as a “A highly regarded stable, Ampersand Advocates has members who represent both claimants and defendants in high-profile civil liberties and human rights cases. Advocates regularly appear at the highest courts in Scotland and the UKSC, as well as the ECtHR and CJEU.”.
In Commercial Dispute Resolution it states “Ampersand Advocates is a highly regarded stable, noted for its involvement in a wide range of complex commercial disputes. The stable houses a number of experienced commercial advocates at both silk and junior levels, and attracts instructions from a diverse client base that includes several financial institutions and large corporates. Its advocates offer expertise in professional negligence, construction and commercial contracts disputes, as well as matters involving intellectual property, planning and insolvency.”
Ampersand’s Commercial expertise is further noted in Restructuring and Insolvency, which includes “Star Individual” David Sellar QC, stating Ampersand “Ampersand Advocates is a strong stable, housing some of the most distinguished restructuring and insolvency advocates in Scotland. It is a go-to stable for companies and their directors, banks and various government departments seeking restructuring advice and representation in major insolvency cases. Members are also regularly instructed by insolvency practitioners to assist with asset recovery matters, and offer significant expertise in international asset-tracing.”
Ampersand’s Personal Injury work is again acknowledged with the guide noting “A highly regarded stable in the personal injury market, Ampersand Advocates retains its reputation as a go-to stable for all manner of injury claims. In addition to offering representation to pursuers in complex and high-value catastrophic and fatal injury claims, the stable’s advocates are also regularly instructed by defenders, and have experience acting on behalf of government agencies and several major insurers. Areas of particular strength for the stable include cases arising from RTAs, accidents at work and accidents abroad, and its advocates are noted for their expert handling of complex employers’ and occupiers’ liability claims. The tenants are also frequently called upon to represent a variety of parties, including local authorities, health boards and bereaved families in fatal accident inquests. Instructing solicitors praise Ampersand as “a very professional stable which provides a high level of service,” adding that “you can tell that everyone there really cares about what they’re doing.”. The clerks get a special note for being “very organised and you can rely on the team to get back to you.” “The clerks are very good at dealing with any queries and are very flexible and very friendly – you never have any difficulties getting in touch with them.” “The clerking team is friendly, reliable, quick at responding and always happy to help.” The “very proactive and easy to deal with” Alan Moffat is the head clerk.” The listing includes Maria Maguire QC and Graham Primrose QC as “Star Individuals”.
In Planning and Environment it states “Ampersand Advocates is distinguished for the substantial planning and environmental expertise of its advocates. It acts for local authorities and all kinds of developers in cases heard at all levels of the court system, including the Supreme Court. The environmental aspects of energy developments are a great source of instructions for Ampersand Advocates. Members of the stable are regularly involved in high-profile matters, including the public inquiry into the refusal of planning permission for the development of the Royal High School in Edinburgh, a challenge to the planning consent for Aberdeen FC’s new stadium and a Supreme Court case dealing with the complexities of European law in relation to a wind farm development.” This includes “Star Individual” Malcolm Thomson QC.
Ampersand is also a Band 2 set in Product Liability stating “A respected presence in the product liability field, with a strong track record of representing pursuers and defenders in a broad array of claims. The stable is able to draw on its impressive capabilities in professional liability and personal injury.”
Ampersand’s full listings can be viewed on the Chambers and Partners website here.
Top Rankings success in latest Chambers and Partners UK Bar Guide
Ampersand has 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 2019.
Ampersand received 56 listings across 17 areas of practice, ranking as top tier (band 1) in Clinical Negligence as a Set, and band 2 in Administrative & Public law, Civil Liberties & Human Rights, Commercial Dispute Resolution, Planning & Environment, Personal Injury, Product Liability and Restructuring/Insolvency as a Set. 4 members are noted as “star individuals”.
Noted as a Band 1 set for Clinical Negligence, Ampersand has 16 rankings in this area. The guide says “Ampersand enjoys an excellent reputation in the field of Scottish clinical negligence litigation. It houses a large number of advocates who specialise in the pursuit and defence of clinical negligence cases, including both QCs and juniors. Matters commonly dealt with include brain and spinal injury claims as well as fatal accident inquiries. Members are skilled at handling high-profile group actions, such as the recent suits regarding vaginal mesh implants. Sources highlight the stable’s impressive offering in the area and the “great strength and depth” of its advocates.” The listing includes Maria Maguire QC as a “Star Individual”.
Band 2 listings include Administrative and Public law where Ampersand’s frequent level public law challenges across a wide range of practice areas noted. In Civil Liberties & Human Rights the Band 2 listing notes Ampersand as a “dynamic group of public law and human rights advocates” and that “Ampersand Advocates is particularly well known for advising on the ECHR and the intersection between UK and EU law.”
In Commercial Dispute Resolution it states “Ampersand Advocates offers a strong bench of versatile and well-regarded commercial dispute resolution practitioners. The stable houses a number of silks and juniors experienced in general commercial litigation, with proficiency in disputes concerning insolvency, professional negligence and construction in particular. Advocates are also noted for their abilities in contentious matters involving planning, commercial contracts and intellectual property, often representing large companies and financial institutions”. Ampersand’s Commercial expertise is further noted in Restructuring and Insolvency, which includes “Star Individual” David Sellar QC, stating Ampersand “Home to leading silks for restructuring and insolvency in Scotland. They are regularly instructed by insolvency administrators, directors and shareholders in a variety of matters ranging from the interaction of insolvency law with public regulatory schemes to allegations of wrongful trading. The advocates have good expertise in relation to jurisdictional matters.”
Ampersand’s Personal Injury work is again acknowledged with the guide noting “A well-reputed personal injury stable on the Scottish Circuit, noted for its expert handling of complex catastrophic injury and fatal claims on behalf of both pursuers and defenders. It is regularly instructed by several leading Scottish law firms, as well as major insurers and government agencies.” It also notes that our “members also have experience appearing before fatal accident inquiries, representing health boards, doctors and hospitals, as well as bereaved families and individuals. Ampersand’s advocates are regularly involved in high-value and complex personal injury claims, and have litigated cases in the Sheriff Courts, the Court of Session and the Supreme Court.” The listing includes Maria Maguire QC and Graham Primrose QC as “Star Individuals”.
In Planning and Environment it states “Ampersand Advocates includes a number of advocates who specialise in planning and environmental law. It excels in handling judicial reviews and planning challenges, and has substantive expertise in the communications, transport and energy sectors. Its clients include local councils, conservation bodies and developers.” This includes “Star Individual” Malcolm Thomson QC. Ampersand is also a Band 2 set in Product Liability stating “A prominent player in product liability matters, with additional bench strength in the areas of personal injury and professional liability. Members routinely act in cases involving defective medical devices and claims relating to industrial product liability. They are experienced in the representation of defenders and pursuers, both in individual cases and in group actions.”
The Clerks also receive high praise again stating “the clerking is excellent” noting “the clerking team is very responsive and experienced. The quality shines through.” and “team is very accommodating and helpful. The clerks respond to enquiries timeously”.
Ampersand’s full listings can be viewed on the Chambers and Partners website here.
Mesh debate judgment clarifies the scope of Montgomery ruling
On 1 June 2018, Lord Boyd of Duncansby issued his Opinion in the mesh litigation, having heard a two-week debate in December. A range of issues were canvassed during that debate. All are important for the future of that litigation. But one may prove to be of more general application and importance: the proper application of the Montgomery test.
Montgomery and what is a “reasonable treatment option”
In Montgomery v Lanarkshire Health Board  UKSC 11, the Supreme Court held that in obtaining a patient’s informed consent, a doctor had a legal duty to discuss the reasonable treatment options and the material risks associated with those treatment options. In the present litigation, the clinicians argued that what was a reasonable treatment option remained a matter of professional judgment and thus regulated by the Hunter v Hanley test for professional negligence. In other words, to make out a case based on a failure to present a particular treatment option, a patient would need to show that no ordinarily competent clinician, exercising ordinary skill and care, would have failed to offer that option. Such an allegation must be underpinned by an expert opinion to that effect (D v Lothian Health Board  CSIH 27 at para.73). On the other hand, the pursuers argued that what was reasonable was to be determined by reference to what a patient might find reasonable after a full discussion of all the treatments, whether or not those were available. In other words, the pursuers argued that a doctor was under a legal duty to present treatment options which she herself was unable to perform (whether by lack of training or availability in that particular hospital) and, if necessary, arrange referral to an appropriate hospital.
Lord Boyd preferred the argument for the clinicians (paras.38-45) and concluded that decision in Montgomery represented “a limited, albeit important, innovation on the rule in [Hunter v Hanley]” that was restricted to the question of risks associated with treatment options. Lord Boyd cited the submission presented to the Supreme Court by counsel for Mrs Montgomery: “Decisions about diagnosis and treatment must necessarily, and by definition, be made by the medical practitioner by reference to his special skill, learning and experience in an expert field which is not shared by the patient. By contrast decisions by the patient as to whether to submit to proposed treatment are his to make as of right, and his to make by giving whatever weight he thinks it right to put upon the risks and benefits which the options available bring.” (para.44). That, Lord Boyd held, emphasised the limited extend of the decision in Montgomery. Decisions about treatment “by definition” being matters of clinical skill, learning and experience, it remains appropriate for them to be assessed by reference to the test for reviewing any other exerciser of professional skill and judgment, namely that in Hunter v Hanley.
Lord Boyd’s decision represents the first (Scottish) judicial recognition of the more limited change made by Montgomery to the law on informed consent. Thus, to plead a relevant case based upon treatment options, a pursuer must still engage with the Hunter v Hanley test (and thus hold a supportive expert opinion). Furthermore, a pursuer must also plead what she would have done (i.e. which alternative she would have selected) had she been presented with the options she claims to have been entitled to (paras.46-50). Those conclusions are likely to have general application to claims based upon informed consent.
In the current cases, the outcome of Lord Boyd’s judgment is that the pursuers have not been allowed proof on any of the alternatives they claim should have been presented and thus are left with a simple case: the operation they had and now complain of or no operation at all.
Other points taken on behalf of the clinicians
In addition to the “treatment options” point, those representing the clinicians asked Lord Boyd to consider several other issues. First, in relation to causation, it was argued that, following the approach of the High Court of Australia in Wallace v Kam  HCA 19, the only risks that were relevant were those that were not warned of and which materialised (as opposed to risks which were warned of and accepted or risks for which there was no duty to warn)(see para.76 onwards). In other words, the clinicians argued that damages could not be awarded for a risk that the patient was willing to accept. That was said to be consistent with the “information”/“advice” distinction drawn by Lord Sumption in Hughes-Holland v BPE solicitors  UKSC 21 but was a narrower view than that taken by Lord Caplan in Moyes v Lothian Health Board 1990 SLT 444. This was not a point that Lord Boyd was prepared to decide without hearing evidence (as had been done in both Wallace and Moyes). He also doubted the application of Hughes-Holland to the medical setting, concluding: “I doubt that [the patient] would then see the doctor’s discussion of proposed treatments and reasonable alternatives as anything other than advice.” On the “risks” question, Lord Boyd accepted that the key question was whether the pursuer would have been prepared to accept the risk which led to her loss. If she was, her case cannot succeed. The real issue, he concluded, was whether risks are seen as cumulative (as in Moyes) or distinct (as in Wallace). That was held to be a matter for proof (see paras.89-93). So, for now, an answer to the causation consequences of Montgomery will have to await proof in this, or another, litigation.
Secondly, Lord Boyd was invited to approve the English decisions of Shaw v Kovac  EWCA Civ 1028 and Diamond v RDE NHS Foundation Trust  EWHC 1495, which had each held that a patient does not have a claim for breach of personal autonomy where informed consent was not obtained (i.e. a patient must still show loss in the normal way). However, during the course of the debate, the pursuers withdrew that part of their claim and those averments have been deleted by Lord Boyd. Unsurprisingly, he then refused to offer his opinion on a point that had been rendered academic in the cases before him.
First, the manufacturers of the products argued that the actions against them should be dismissed as irrelevant. During the debate, the common law case against the manufacturer was withdrawn (para.165). That left a case based on the Consumer Protection Act 1989 and whether the products were defective within the meaning of that Act. That case has been allowed to proceed to proof. Whilst Lord Boyd expressed reservations about how the case against the manufacturers had been framed, the level of pleading required of the pursuers took account of the knowledge the manufacturers would have about their own products and given the issue of defect required a holistic approach to be taken, what was and was not relevant, and the particular weight to be placed on any one factor, was something that could only be assessed after proof. Given similar product liability cases in England and Wales have been resolved after trial (for example, and most recently, Gee and others v Depuy International Limited  EWHC 1208) and, in Scotland, the Vioxx litigation has recently been allowed to proof by the Inner House (Richards v Pharmacia Ltd  CSIH 31), it is perhaps unsurprising that the cases against the manufactures were allowed to proceed.
Secondly, Lord Boyd reiterated the approach to pleadings and the necessity to provide fair notice. Those rules did not change when the court was presented (as here) with a large number of cases which had a number of common features (para.30). Two particular points are worthy of note. First, he held that the Ch.42A case management powers does not convert litigation into an inquisitorial process and it remains for the pursuer to plead a relevant case. It is not for the court, through case management orders, to take a lead in identifying the issues (para.27). Secondly, in a slight innovation on the traditional approach, Lord Boyd was prepared to look at the content of the defences when considering the question of fair notice. That, he held, was consistent with the spirit of Ch.42A where parties are encouraged to make early disclose. In those circumstances, it would be wrong to ignore the content of the defences (para.31).
Finally, in each of the four lead cases limitation pleas were taken by all of the defenders. Two of those cases were held to be barred by limitation so far as the clinicians were concerned on the strength of what has been pled. The other two cases, in relation to the clinicians, require proof to determine the question of limitation. In relation to the manufactures, proof was held to be necessary in each of the cases to allow limitation to be determined. For the cases that have been held to be barred by limitation, the application of s.19A (the power to relieve a pursuer of the consequences of limitation) has yet to be determined. But perhaps the most significant aspect of the limitation discussion is Lord Boyd’s insistence that the issue turns on the particular circumstances of the particular case. In a litigation such as this (where limitation pleas have been taken in the majority of the 500 or so claims), that suggests it will be hard to resolve the cases on anything other than an individual basis.
Ampersand’s Graham Primrose, QC, Simon Bowie, QC and Paul Reid were instructed by the NHS Central Legal Office and David Stephenson, QC and Jamie Dawson were instructed by the MDDUS for the debates. Vinit Khurana is also instructed in behalf of the NHS.