Professional Negligence Law in the 21st Century: A Festschrift for Keith Stanton

In recent years, judicial decisions, social trends, policy agendas and economic upheaval have all contributed to the evolution of key principles of professional negligence law and the emergence of new themes and trends, which have been the subject of stimulating analysis and dispute. It is no surprise, therefore, that the recent seminar on ‘Professional Negligence Law in the 21st Century’, sponsored by the Journal of Professional Negligence and hosted by the University of Bristol Law School on 17th January 2017, proved to be an occasion for lively and thought-provoking discussion and debate.

The seminar was held in honour of Professor Keith Stanton, in recognition of his lifelong interest in and contribution to professional negligence law. Within the field of tort law, and professional negligence law in particular, few names are as well-known as that of Professor Stanton. His books on the general law of obligations (in particular, Breach of Statutory Duty in Tort (1986); The Modern Law of Tort (1994); Statutory Torts (2003)) quickly became, and remain, essential reading for anyone studying or practising tort law. His contribution to the field of professional negligence is no less impressive: he co-authored the seminal textbook Dugdale & Stanton on Professional Negligence (1981, 1989, 1998); he was the founding editor of the Journal of Professional Negligence, which has for over 30 years provided a forum for commentary on and analysis of current issues in the field; and he has been and continues to be a prolific writer on a wide range of professional negligence issues. His work in and contributions to this field have been instrumental in the development and shaping of this branch of the law over the past 35 years – as was clearly in evidence during both the seminar presentations and the discussions following each talk.

The seminar was chaired by Professor Ken Oliphant, who also gave the opening presentation on the subject of ‘Professionalism and Professionals’. The meaning of ‘professionalism’ is a question which has been the subject of much dispute over the years, and has taken on a new significance as recent legal developments and changes in social attitudes have thrown into question the traditional hallmarks of professionalism. Professor Oliphant’s discussion of the effect of those trends on the way in which the idea of ‘the professional’ should now be understood and their implications for the law of professional liability provided much food for thought, and provided a conceptual framework against which to consider the specific issues canvassed during the course of the seminar.

The concept of professionalism was explored further with specific reference to the police by Professor Joanne Conaghan and Clare Torrible in their presentation on ‘Policing, Professionalism and Liability for Negligence’. In particular, they used notions of professionalism to discuss the thorny question of whether and when the police should owe a duty of care in relation to harm inflicted by criminal third parties, an issue which was thrown into sharp focus by the recent decision of the Supreme Court in Michael v Chief Constable South Wales [2015] UKSC 2.

Two other recent decisions of the Supreme Court have also had far-reaching consequences for the law of professional negligence, specifically in relation to professional duties of care: Montgomery v Lanarkshire Health Board [2015] UKSC 11, on the duty to provide information, and Woodland v Essex County Council [2013] UKSC 66, on non-delegable duties of care. Those landmark decisions, and their implications for the medical profession in particular, were addressed by Dr Judy Laing and Professor Paula Giliker, in their papers on ‘Montgomery and the Medics: Is patient centred disclosure a standard worth waiting for?’ and ‘Non-delegable duties and institutional liability for the negligence of hospital staff: Fair, just and reasonable?’

Litigation lawyers and those who provide funds for their services were up for discussion next, in Imran Benson’s presentation on ‘Liabilities of Litigation Funders’. This talk focused on differences in the scope of liability for costs under the various funding mechanisms available to claimants in litigation and the policy considerations underpinning those disparities.

Finally, Professor Stanton provided an in-depth exploration of consumer remedies for mis-selling and mis-advising by banks and financial advisers, in his presentation on ‘Investment Advice: Statutory and Common Law Remedies’. He reviewed both the statutory regime governing financial advice and common law liabilities, discussed the key case-law emerging from the raft of claims in the last decade arising out of the sale of financial products such as PPI and interest rate swaps, and summarised his predictions as to the likely battlegrounds in future litigation.

The day ended with a presentation by the current editors of the Journal of Professional Negligence to Professor Stanton, in recognition of his work in shaping professional negligence law over the course of his career and his role in creating and building up the journal itself, and the forthcoming special issue of the Journal (Volume 33, Issue 2 to be published in June 2017) will be a Festschrift dedicated to Professor Stanton, comprising the papers given at the seminar (revised as appropriate to take account of points arising in the course of the post-presentation discussions and subsequent review). It is an honour to follow in Professor Stanton’s footsteps as editors of the Journal of Professional Negligence, and we hope that the forthcoming special issue will pay appropriate tribute to his long-standing support for the Journal.

Katherine Watt is Co-General Editor of the Journal of Professional Negligence, which is also available on Bloomsbury Law Online.

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