Getting your clause in

These days it seems unfashionable to suggest that members of a profession should regulate their colleagues’ behaviour. It is not hard to see why. Those who complain will always allege a whitewash unless they get the result they want, and where the adjudicator is a member of the same profession it is not just a whitewash, but the result of a closed shop or the old boys’ network.

The usual solution is to involve laypeople in the complaints procedure. Lay involvement does not necessarily lead to better decision-making, but it heads the whitewash/closed shop/old boys argument off at the pass. When it comes to litigation, there is little scope for direct lay involvement. Juries now have only a limited part to play in civil disputes. There are many who challenge their suitability to maintain objectivity where, for example, one of the parties entertains them frequently on their television screens. Or to deal properly with the issues where they are too complex for many lawyers to handle competently. Despite the presence of lay representation on the disciplinary boards of all the main professions, there are no clamours for lay involvement in professional negligence litigation.

It is a rather curious state of affairs, because so many complaints amount to allegations of professional negligence. When the allegation is made by way of a complaint, lay involvement is perceived to be needed. When the same allegation is made by way of litigation, it is heard by a judge alone, with no demand for lay assessors.

I would suggest that the acceptance of judicial decisions in these matters is more perceived than actual. What can certainly be said is that the risk of bias is negligible and that a reasoned judgment will be given with avenues of appeal if the judgment strays from the path of judicial righteousness. These are facts which all but the most irrational litigant accepts. But all of us who are involved in litigation know that it is rare to find a client who loses and says: “Oh well, I must have been mistaken. Thank goodness the judge has put me right.” They accept the outcome because they have no choice.

Courts are the avenue of last resort in resolving disputes, and litigants know this. They arrive with the hope and expectation that they will be vindicated because the judge is a judge. The judge has many years of experience and has been seen to be sufficiently wise to be awarded a salary and pension at the expense of taxpayers so that they can use their wisdom for the benefit of the innocent. The judge must have a special quality that will result in the truth being exposed. But is this the real perception? I would suggest that in many cases it is not, but that there is a simple way to ensure confidence in the tribunal.

People who believe they have been wronged by a professional will want to take advice from someone who knows about professional negligence. The solicitor they visit might or might not have significant prior experience of professional negligence litigation, but there is always specialist assistance available from the bar if needed. What puts the client’s mind at rest is confidence in their legal team. Like many at the bar, I have been instructed by general high street practitioners who have an existing relationship with the client but little or no experience in professional negligence matters. They tell the client that they do not have the necessary experience but that they know of barristers who do, and the first conference starts on a very positive note, because the client trusts the solicitor and the solicitor trusts the barrister – therefore, the client trusts the barrister.

This confidence in ‘my solicitor’ is of great importance in the client having confidence in the whole system of litigation. But it is only part of the picture. The system can only work for so long as there is general acceptance that it is an effective way of resolving the particular dispute before it. That there is general acceptance in the system is beyond doubt, but ‘general acceptance’ is just the background – it is what makes people think that litigation is the appropriate course for them to follow rather than a complaints procedure. There is a valid perception that complaints procedures do not exist to assess and award compensation, but to uphold professional standards. If compensation is needed, particularly if significant loss has been suffered, the court might be thought of as the natural home for the case.

There is an important distinction to be drawn between the general acceptance of courts as the proper home for professional negligence disputes and acceptance by individual litigants that they should be using the courts. That distinction is made stark every time we get news from the list office of the identity of the judge who is to hear the case. I cannot be alone in being asked, every single time, the question: “Does this judge know about this sort of stuff?” Both claimants and defendants want to have a judge who already knows about the issues of professional practice in dispute.

Of course, we tell them that the judge is very experienced (always absolutely true), and that they will hear all the evidence fairly (almost always true, and always an assumption one must make) and that they will understand the issues fully (sometimes less likely to be true, but also a required assumption). What we cannot say, unless we have relevant prior experience of the judge, is that they know about “this sort of stuff”. What comes next is: “So, are you saying that this judge isn’t an expert in this sort of stuff?” There is always a diplomatic answer, but diplomatic answers are only needed when the naked truth would require an answer in the negative.

The only forum that can be relied upon to provide the requisite expertise in each case is arbitration. In the same way that judges will very rarely accept expert evidence in claims of legal professional negligence, so specialist arbitrators rarely need expert evidence in their field – if they did, they would not be suitable appointees. Nothing is more likely to instil confidence in the parties than the knowledge (perceived or actual) that the person judging their case has greater specialist expertise than the person being complained about.

In this respect professional negligence is like many other fields of law. Of particular interest is international trade. There are practices and standard form contracts in international trade that make arbitration the natural home for disputes. Indeed, so natural is it that an international trade contract without an arbitration clause is as rare as England winning the Ashes. The specialist arbitration system in international trade allows even modest disputes, concerning just a few thousand or tens of thousands of pounds, to be heard quickly and to be determined by a person or panel that has the confidence of the parties.

Specialist arbitration is driven by the arbitrators and takes place at times to suit all parties. Smaller claims are dealt with very effectively and efficiently on paper. Disclosure of documents is limited to what the arbitrator wants to see. Costs are lower. And, most importantly, the answer to the question, “Does this judge know about this sort of stuff?” is unequivocally in the affirmative.

It works for international trade and it will work for professional negligence. It is time for arbitration clauses to be included in every professional retainer.

William Bojczuk is a barrister at Selborne Chambers