Professional negligence
Barristers involved in this field deal with claims against professionals such as architects, accountants, solicitors and financial advisers who’ve allegedly failed to provide services with the level of care and skill which a member of that profession would be expected to demonstrate.
Becoming a solicitor was never on the cards for Ben Smiley – in fact, the professional negligence barrister admits that he’d have “hated” being a solicitor. “I only became a lawyer to become a barrister. For me, it’s not so much the law, as it is the argument, and the challenge that comes with putting together a case, presenting it in a compelling way and the cross-examination that’s involved.”
According to Ben, the work of a barrister is much more suited to his personality; it was easy for him to recognise that he’d enjoy the distance that a barrister has from their lay clients, as well as the independence and flexibility that comes with being self-employed. “My hours are my hours. I can choose the career I want to pursue (for better or for ill) and I can freely pick when I want to take holiday,” he explains.
Having been called to the Bar in 2009, Ben completed his pupillage elsewhere before joining 4 New Square for a third six and starting to build on his experience within the professional negligence sphere of law, where he now finds himself working on exciting, high-value cases.
“In the professional negligence world, you always have a client who feels like they’ve been done wrong, and they feel aggrieved about that, which brings a human element to the work"
From pupillage to high-value work
With a broad commercial practice, Ben outlines the two main areas that fit within the scope of his expertise: professional negligence and insurance work. Although he also works on sports, costs and other general commercial and financial services law, Ben has naturally gravitated towards professional negligence and insurance – “they’ve always struck me as the two most personally interesting and varied of the commercial areas of law”.
Expanding on this, he adds: “In the professional negligence world, you always have a client who feels like they’ve been done wrong, and they feel aggrieved about that, which brings a human element to the work. Even if the professional defendant is a business, there’ll be individuals who are being accused of being negligent or fraudulent. It’s that involvement of real people and individuals to whom it really matters, that’s always appealed to me.” The variety of work this area of law offers means Ben is always learning. “It keeps me on my toes,” he says. “I don’t get the shoulder slump and dreaded ‘oh, not this again’ feeling that some areas of law can lead to.”
Delving into the specifics of professional negligence work, Ben explains that he could be working on “less sophisticated” matters involving “a solicitor or conveyancer messing up the sale of a property, or a surveyor overvaluing a property or missing a defect in a property”, right the way up to “much more sophisticated financial issues arising with the advice of accountants, financial advisors or pension advisors, for example”. Ben sees many cases where the claimant is unhappy with the outcome and “they want to point the finger of blame at someone”. He explains: “Sometimes these accusations are entirely legitimate because the reason why the outcome is less than desirable is due to a poor job by the paid professional. However, very often, there’s something wrong with the claimant’s allegations, meaning the professional couldn’t have done anything else in the situation or the surrounding circumstances are such that it would’ve made no difference whether the professional did a poor or good job.”
Professional negligence cases “give way to all sorts of debate about who owes what duties to whom, when the duties were breached and whether that made any difference in terms of causation”. It’s also the type of work that sees Ben having to wrap his head around various industries and scenarios, adding to the variety of work on his desk, with the value and issues “ranging from the very smallest figures to multiple billions” – in fact, just recently, Ben worked on a case that was worth £1 billion. “You’re potentially dealing with the audits of enormous institutions that go kaput or advice on an enormous transaction that’s incredibly high value, so there can be huge sums at stake.”
Taking a step back to when Ben was just starting as a tenant and these high-value cases were just a goal he was aiming for, it’s fascinating to hear how Ben’s workload and intensity has shifted throughout his career. “My work has evolved in all sorts of ways,” he says. “When I first became a tenant, I worked every hour that I could and never turned down a piece of work.”
As a very junior barrister, Ben also accepted different types of work in an effort to soak up all the experiences and figure out what it was he wanted to do in the long run. At the beginning, “I was doing an awful lot of court work and would be in small hearings in county courts all over the country”. However, as he’s become more senior the amount of time spent in court these days is significantly reduced: “I’m now in bigger trials or hearings but more rarely, and they’re more likely in the High Court than county courts.”
As well as higher value work and seniority in a team, the big change between where Ben was as a new tenant and now is that he’s identified the areas he wants to be involved with and is more able to say “no” to work. Satisfied with the balance he’s achieved, Ben outlines one of his motivating factors: “I now have a wife and three children, which means my weekends are less free. Although I have a fair amount of weekend work reasonably often, I have to be more disciplined in terms of what I do and when.”
Handling tricky situations
Picking out some of the specific matters he’s worked on during his career, Ben takes us back a few years to a job he describes as “the hardest”, but also the one he looks back on and is “most proud of achieving”.
“I was being led by an incredibly able and experienced silk who, for one reason or another, had dissatisfied the client during the hearing. In the middle of the silk’s cross-examination of the claimant, the client asked me to take on the trial alone and continue with the cross-examination that the silk had already started.” Ben acknowledges the tricky nature of this situation, both personally and professionally, given that it involved telling the silk the news that they’d been dismissed by the client before going on to “defend a lawyer who’d been accused of negligence in a sensitive, criminal case”. Following the positive result for Ben and his client, “the judge wrote to the head of chambers to say how impressed he was with how I handled the situation”.
This, of course, sits among many other highlights in Ben’s career, with future highlights sure to join the list, particularly in an area of law that’s “constantly developing”.
Speaking in more detail about the changes in this area of law, Ben references a Court of Appeal case from earlier in the year – albeit not one he was involved in. He explains that “the circumstance in which a duty will be established by people who aren’t the clients of the professional is an interesting and developing area”. The case in question was “about whether a barrister, who’d produced an opinion in respect of a tax scheme for the scheme promoters, owed duties to the people who then invested in that tax scheme, even though he wasn’t their barrister. The claim failed at first instance and also failed in the Court of Appeal, but there’s talk of it going to the Supreme Court if permission is granted”. It’s an interesting case that students looking to enter this area of the law should be made aware of.
“It’s all about how good you are at understanding the law and documents, and then applying that understanding”
Advocating for others, marketing for yourself
In a constantly evolving area of commercial law, there are several key skills Ben highlights as key to being a top barrister, including having a strong analytical ability. “It’s all about how good you are at understanding the law and documents, and then applying that understanding.” On top of this, “being able to express yourself and persuade the court compellingly” is key – ultimately, “it’s a combination of intellectual application and confident ability to be both an oral and written advocate”.
As well as honing these skills, success at the Bar relies quite heavily on the individual character of prospective barristers or, as Ben puts it, “marketing”. His closing advice elaborates on this: “A big part of what barristers are told they need to do is marketing, and the best form of marketing is doing a great job for your client. If you impress the people that instruct you in the work you do, you’ll continue to have a good career.”
